By Ian McWilliams

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NETS – Helps In Win Over Big Tobacco

The Public Health Advocacy Institute (PHAI) announced that on August 27, 2018 two tobacco lawsuits tried this month in St. Thomas have concluded with verdicts totaling $113.3 million. The cases, Gerald v. R.J. Reynolds Tobacco Co. and Brown v. R.J. Reynolds Tobacco Co., were brought by the children of two deceased smokers who had been hooked on Newport cigarettes as minors, according to the release.

New England Trial Services was there to support the plaintiffs in both milestone cases against big tobacco and R.J. Reynolds Tobacco Co.

Read the full article here.

By Ian McWilliams

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An Old World Courtroom vs. New World Technology

 

Trial presentation consultants are relatively new members of the litigation support team. Part law clerk, part audio/visual geek and full-time courtroom roadie, the trial presentation consultant helps the attorney “put on the show” for the jury. Our company, New England Trial Services, often has helped set up and operate large multimedia presentations for billion- dollar trials. However, not every case needs a monitor for each juror, a wireless Internet connection for each counsel table or on-screen annotation tools for the witness stand.

Sometimes, a little goes a long way. Yet, because we often hear the comment, “I will use you when the case is big enough,” the challenge for us is to make trial presentation work for any case, regardless of size.

One law firm in Boston helped us demonstrate how courtroom presentation can be used anywhere, for any size case. Swartz & Swartz is a six-attorney firm housed in one of the oldest brick buildings in Boston, a structure once owned by John Hancock and located just blocks from the Old North Church. Two of the firm’s most experienced litigators, James A. Swartz and David P. Angueira, tried cases for years using all the old tools of the trade, including foam board blowups, VHS tape depositions and jury binders. During the past several years, however, they realized the success electronic trial presentation has in getting messages across to the jury.

A few years ago, the firm approached us with a dilemma.

Angueira was trying a wrongful death suit involving a cancer patient and needed a way to show pathology slides to the jury while his expert witness described what was being shown.

Because there were so many slides, making blowups of everything he needed would have been very expensive and time-consuming. He also needed the flexibility to move from one slide to another during examination, with the capability of pulling up any one slide out of hundreds in any order.

We convinced Angueira to have us scan photo enlargements created from the defendant’s slides to display the images using trial presentation software, in this case Sanction by Verdict Systems. We decided to use this program because Angueira was more comfortable with the program’s Microsoft Windows look and could better understand the process we used to build the database. With the program’s magnification and annotation tools, we were able to create a dynamic set of exhibits for display. At the same time, we took all the medical records, expert reports, pleadings and deposition transcripts, and some family photos of the victim and surviving relatives, and created a database of images and information for the attorney to call up at a moment’s notice.

Angueira also liked Sanction’s “Transcript Search” tab, which was useful for finding deposition testimony from the numerous defendants. Naming the images by the exhibit numbers as we scanned them in and saving them as multipage TIFF files made each document easy to call up. By right clicking on “Edit” under “List View,” we also added descriptions and Bates numbers to give three different ways to find an exhibit using the “Find/Query” tab.

By calling up a document in “Presentation Mode,” highlighting the relevant text and magnifying the relevant section, we were able to show the evidence quickly, avoiding the usual delays caused by trying to get the jury, judge and defense all on the same page of what would have been a three-volume set of exhibit books. Particularly effective were the family photos, which were used to show the jury the faces of the survivors during closing arguments. By presenting the case electronically, we were able to present evidence that normally would have taken a month or more to prepare and show. Instead, Angueira was able to prosecute the plaintiffs’ case in less than two weeks. Even the defense team was impressed — so much so that some of them have since become our clients.

The Courtroom

Using the right trial presentation was only one challenging aspect of this case. In Boston, the Suffolk County Courthouse normally is housed in the historic John Adams Courthouse  on Pemberton Square, just half a block from the State House. During the time of my client’s trial, however, the building was being renovated and the courthouse was being housed temporarily in the McCormack building. The building’s former law library served as a makeshift courtroom for the duration of the temporary stay. Although this building is a striking example of the Art Deco style popular during the Great Depression, it had not been modernized, so we knew we would have some challenges ahead of us in making any presentation technology work.

We had room for one laptop computer, one small Toshiba tabletop liquid crystal display projector, and a six-foot tripod screen that had to be moved each time the jury entered and exited. Since the room still had fixtures for gas lamps, finding electrical power outlets was tricky. We finally found an active AC outlet up the stairs and down the hall. We then had to run extension cords from that point all the way to our table.

Luckily, I learned long ago to carry ground plug adapters because we often find nongrounded AC outlets in Boston’s old buildings. It was a challenging set up, but because of space limitations, we were not tempted to rent massive amounts of electronics and spend an inordinate amount of money.

Tips for Trial Teams

You don’t always need to purchase costly trial presentation software such as Sanction or inData Corp.’s TrialDirector to show an effective presentation to a jury. There are a few inexpensive options available to create winning  presentations. Some of the tools in Microsoft’s Office suite work quite well. For Swartz & Swartz, we often prepare exhibits with Sanction, using the annotation tools to highlight and blow up pages from exhibits. Then, we save the images using “Screen Capture.” These image files are added to Microsoft PowerPoint slides and shown during opening or closing arguments. Video deposition clips can be edited using the program included with the Digital Video Transcript created by inData Corp.’s TimeCoder Pro. They can then be shown using Windows Media Player, which also can display text as closed captions.

On Their Own

These days, the attorneys and staff at Swartz & Swartz like to do things for themselves. They now order synchronized DVD copies of video depositions instead of VHS tapes so they can view the witness, highlight the transcript and make their own video clips. They purchased a compact document scanner for small jobs in-house, which saves the expense of using a document imaging vendor for the large-volume jobs. They also purchased new laptop computers and a small presentation projector to go with the document camera they previously obtained. With these tools and a little assistance from us, the attorneys of Swartz & Swartz are bringing the newest resources to some of the nation’s oldest courtrooms.

By Ian McWilliams

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Since the early 1990s the use of multimedia presentations at trial, particularly video productions, has grown exponentially. Successful litigators have discovered that using visuals with their persuasive words gives them a distinct advantage in presenting their case to a jury. In this article we describe some of the different uses for audiovisual depositions in pre-trial mediation and courtroom presentation, share tips on ways to prepare your witness and deposition space for maximum effect and describe some of the presentation options available in Massachusetts courtrooms.

Videotaped Depositions

Hearing a witness’s sworn testimony recited by a stand-in does not allow a jury to effectively interpret whether an answer is belligerent, hesitant or genuine. And displaying the printed word cannot show if a witness is confused, hostile or earnest in a deposition response. So, perhaps not surprisingly, the most common type of video presentation viewed in court is the videotaped deposition, which certainly can communicate much more than a transcript alone. It adds the additional communication of vocal tone, inflection and witness demeanor.

Hearing and seeing testimony from a witness can add credibility to a crucial report if an expert looks and sounds competent and trustworthy. It can also go a long way towards impeaching a witness’s credibility if that witness appears uncomfortable or contemptuous. As a picture is worth a thousand words, a moving picture can bring words to life.

There are many reasons to capture testimony for viewing. Economic reasons include the opportunity to save money by preserving the testimony of a paid expert to be played any time during trial rather than having them wait in the gallery or hallway until they are called. Medical experts oftentimes will not agree to appear in person for less than a full day’s fee because of the disruption it may cause to their schedules. Video depositions are a useful tool when dealing with out-of-state or otherwise unavailable witnesses. And by having videotaped testimony available during trial, potentially costly delays can be eliminated and valuable court time can be used to full effect.

Videotaped testimony can be a very useful tool even when a witness will appear live before the jury. Video clips from depositions can be used to impeach live testimony when answers differ from what was said under oath during discovery. It is very startling to a jury to see a witness contradict themselves, and much more effective than simply asking them to read aloud their prior testimony. And with modern presentation tools the editing and playing of video clips can be almost instantaneous. With a few clicks of a mouse, transcripts can be searched, testimony highlighted, and video clips created and played to dramatic effect.

How Does It Look?

But just showing a moving picture is not enough. How that picture and the elements it contains look can influence an audience to take action, in either a positive or negative way. A poorly produced video can distract the audience from the message and defeat the purpose for showing it. When planning for an audiovisual deposition, much care should be given to the surroundings and to the look and  actions of the witness. You need to conduct your examination in an environment free from distractions in a space with enough room to accommodate not only a witness, court reporter and counsel, but also a videographer and all the necessary equipment. The space should have adequate, even lighting so no additional lighting instruments are needed, as they tend to be bulky and give off a tremendous amount of heat. If a room with outside windows is used, then shades over the windows might be necessary to prevent too much sunlight from adding unwanted shadows or hot spots to the picture. A quiet location  is a must as microphones will be used to capture the audio and can also capture distracting noises from inside and outside the room. Setting the witness against a blank wall or neutral backdrop will eliminate distractions from the picture. While you may be tempted to use a bookshelf full of law books or artwork as a background, avoid this as the shelves or other objects may look as if they are growing out of the witness’ ears and distract the jury from the testimony. Eliminate clutter from the table such as water pitchers and glasses or piles of paper as these can also draw attention away from the testimony. You need to check the picture the videographer is shooting to make sure nothing in the frame can distract the viewer from paying attention to the testimony.

The most important element of the audiovisual deposition is the audio. That’s why it comes first in the name. It is up to your professional legal videographer to produce the finest possible program by using the proper equipment and recording techniques. The only way a professional can make sure the audio is being recorded properly is to monitor the signal, both visually through V/U (volume unit) meters at both the microphone mixer and the camera and by listening to the mix at the recording medium. Do not allow your videographer to use any automatic gain control features, either for picture or audio recording as those features will produce poor quality video productions. A professional videographer with professional tools will have the knowledge and capability to make a first rate, near broadcast quality program. Trust a locally owned and operated court reporting or legal video production firm to  get you the best quality product from stenographers and videographers who know your needs.

Your Witness

As for your witness, have them dress in a comfortable and professional manner. Ask them to dress as though they will actually be in the courtroom, keeping in mind that jurors will judge the believability, credibility and likeability of your witness within the first few seconds of seeing them. Avoid loud ties, checks or bold stripes as these fabrics can become distorted on screen. Also, make sure they do not wear noisy jewelry as the microphones will pick up the sound and could actually drown out the words being spoken by the witness. Solid black and white fabrics can play havoc with exposure and contrast in the picture. Pastel shades, particularly light blue, work well and provide for a pleasing color balance. Make sure all cell phones are turned off, not just set to vibrate, as these devices have a tendency to interfere with the audio signal being recorded. As a rule of thumb, if you wouldn’t have the device turned on in a courtroom, don’t leave it on in the deposition location.

As to how a witness should conduct themselves during examination, make sure they act naturally. Exaggerated motions, leaning back or rocking in their chair, or stiff rigid posture can convey to a jury a sense that the person speaking cannot be trusted or has something to hide. A relaxed posture, with feet on the ground and the torso leaning slightly forward, can display earnestness and a sense that the witness is listening intently to the questions and is serious about giving a straightforward, honest answer. Instruct your witness not to look directly at the camera, but rather at the questioner. Or, if they are being asked to testify about a document, have them look at the paper in front of them. Remind your witness that they must always allow the question to be asked, and allow time for an objection to be lodged before they answer. Just as a court reporter cannot record two voices at once, a video editor cannot cut out an objection when the answer to the question is being stated at the same time.

What Is the Best Depo Video Format?

Once the deposition has been taken and you are packing up to leave, your videographer will ask you for your copy order. Just as the court reporter offers different formats for your convenience, so too does the videographer. When I started videotaping depositions there was only one format available, the VHS tape. With the eruption of technology in the modern law office, the choice of formats has expanded. Now a video can be delivered on digital media in the form of CD-ROMs, TV-DVDs, Digital Video Transcript (DVT) disks and even delivered streaming over a secure Internet connection.

If you plan to use the deposition video at trial, the most effective format is the Digital Video Transcript. With a DVT the reporter’s official transcript is synchronized to the video file, linking the printed word with the spoken testimony. With the testimony synched you can easily search for segments to view without having to fast forward or rewind a tape while stopping to find your place in the paper record. Simply highlight the first line of testimony you wish to view and double click on the highlight. The video will automatically be cued up to that portion of the proceedings and you can play the video from there. Most DVT disks will contain a software program which will allow the user to conduct keyword searches, index searches and basic video editing functions. You can highlight a section of testimony, and, using the easy to follow instructions, create a video clip that can be exported into trial presentation or multi-media presentation software, can be saved to a hard drive or portable media for later viewing, or can be encoded into a file small enough to be e-mailed to a client or colleague for viewing. Just recently I helped a client prepare a mediation brief in electronic file format and embeded deposition video clips wherever transcript testimony was cited, with a thumbnail icon hyperlinked to start the video when clicked. The mediator was sent a printed copy of the brief as well as a CD with the computer version. Edited video clips can be combined into a presentation in any order and used at trial. Rather than show a jury eight or more hours of video testimony you can create a quick and effective presentation without all of the pauses, non-responsive answers and stated objections that can be prevalent during a long deposition. And all of these processes can be accomplished by even the most basic computer user. You don’t have to be a professional video editor to make great presentations.

Tips from the Courtroom Roadies

In Massachusetts, we are fortunate to have a wide variety of architectural and technological styles at use in the court systems. From the modern U. S. District Court building on Fan Pier in Boston to the other end of the spectrum, the Charles Bulfinch-designed Essex County Superior Courthouse, built in 1805 in the Newburyport, the design and usage of technical presentations are subject to the various venue capabilities. These capabilities must be kept in mind when planning and implementing your trial technology. These tips should come in handy for any location where you may practice. They have been gathered through much trial and error throughout the past two decades.

Oh, say can you see

There is a wide range of display equipment to choose from when designing a courtroom presentation. Some buildings are designed with technology in mind, such as the U. S. District Court in Boston, where courtrooms there are equipped with state of the art presentation tools. These include individual computer monitors in the jury box, the bench and on counsel tables; telestrator touch-screen monitors on the witness stand and counsel podium; and audio-visual playback devices built in to the room. Attorneys are invited to make the most of the equipment and use their technology to full advantage. In other venues, particularly at the State Superior Court level, display equipment must be brought in because nothing is available in the courtroom but electrical outlets (and many times, very few outlets at that.) When planning for display equipment, care must be given as to the layout of the courtroom. In order for all jurors to have an unobstructed view of the visual evidence, oftentimes counsel will find their options to be limited. We have had the greatest success using small video/computer projectors and large, portable movie screens. Not only can they be used in confined spaces, but by having one place for all the jurors to focus their attention, counsel can often control where the members of the panel look as well as the amount of time they spend studying the evidence.

We also recommend using of the “rule of threes”. For example, if the witness stand is to the right of the jury box and the counsel podium is to the left, position the display screen in the center, directly across from the jury box. That way the attention of the panel can go from question, to display to answer without having to focus attention somewhere out of this visual arc. And if a deposition video is to be played, then jurors do not have to look at an awkward angle or crane their necks to get a  good look at the picture. The care and comfort of the jury should be foremost in the mind of the presentation technician and the layout of the room and equipment will go a long way towards maximizing your use of the technology.

Final Thoughts

A successful litigator must wear many hats and develop and master many diverse skills. Investigator, counselor, legal expert and, most of all, teacher. These are just some of the things you must become and talents you need to successfully advocate for your client. As with any discipline, tools are available to make the job easier. Video technology is one such tool, and by using the technology you can bring to life your thoughts and words and create a vivid image in the minds of your jurors. By capturing their attention and teaching them everything they need to make an informed, just decision, you will have done your job to the best of your ability and find success in your endeavors.

Fade to black…

Ian A. McWilliams is a videographer, trial presentation technician and member of the American Society of Trial Consultant. He helps Trial Attorneys present their evidence in venues throughout the United States. And in 2005 he was dubbed Captain Video by the Hon. Carol S. Ball during a civil trial in Suffolk Superior Court.

By Ian McWilliams

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Since 1996 it has been my honor to have a ringside seat for the greatest human dramas imaginable, acted out on a daily basis courtesy or our Commonwealth’s incomparable system of Civil Justice. As Judge Christopher Muse said during a history lesson to out of state counsel at trial in Plymouth County “… we were here first. We made the rules… “. During that time I have also witnessed an explosion of technology which has radically altered the way the Business of Law is being managed. When I started, deposition videos were distributed on VHS tape and a transcript was printed and shipped with an early stage electronic copy stored on a floppy disk. Remember WordPerfect? Nowadays, transcripts with hyperlinked exhibits are delivered to your office, be it brick or virtual, electronically via the internet and videos come to you on DVD with a synchronized transcript and editing software included (more on that in sidebar). A witness’s testimony can be shown live, around a conference table or around the world as it is being transcribed. Videos can be instantly edited and shown during trial. Written testimony can be projected as captions, scrolling below the picture. And all of these great tasks can be accomplished ONLY because of the talents and labors of some very important, yet often unnoticed professionals.

THE STENOGRAPHERS

They do sort of sound like superheroes, don’t they? Can you imagine any one individual who can: work in a room with between three and hundreds of people and be expected to listen to everything that was said in a day? And be able to know the difference between what is to be written down and what is to be ignored? And to be able to know and document who said what? Even when more than one person at a time will talk? And not only that but this Champion of the Record must also prepare a written copy with all words correctly spelled, all sentences punctuated and correctly identified as questions or answers; must make sure that all names are properly spelled and capitalized, all acronyms are identified and defined and every “mm-hmm”, “uh-uh”, “nah”, nod and shrug are described. And oftentimes are asked to do all of that overnight, after a long work day taking testimony, in order for counsel to have an expedited transcript. All of these tasks, individually and as a whole, require such a high level of concentration and attention to detail that it often takes a team effort, with scopists (professionals who can read and translate the phonetic language of symbols which are the basis of the steno machine) (now mostly done by computer software but often still double checked against the paper) and proofreaders on call at all hours to make sure the record is accurate, legible and complete. Fortunately, technology and humanity have merged into an efficient compromise between machine and person, enabling the freelance Court Reporter to produce a first-rate product for discovery purposes.

As the practice of law has zoomed into the Age of the Geek, in our haste to welcome new technology we sometimes overlook what made the previous technology great for its time. Unfortunately, new technologies have driven away an important human element from our courtrooms, with banks of microphones expected to replace the human ear connected to a computer system expected to replace the brain of a human, trained in law and language, entrusted to create the Verbatim Record of Proceedings. Face it; it is a fate you must all accept. Never again will you utter the comforting words, often used as a break to collect one’s thoughts, “Would the reporter please read back the last question?” And, on top of all that, YOU must now make sure YOUR record is accurate. You have nothing else to rely upon but a recording. Are you really going to trust a machine with the most important part of your case, the trial record?

I have spent countless hours sitting in courtrooms, observing long, tedious and often boring proceedings from behind a TV or computer, waiting for my few moments of terror (will the video play or crash?) and have gathered a few bits of advice, inspired by my time working with stenographers, tips I will pass along to you in the hopes they will guide you to more than a shot in the dark that your transcript will be complete, legible and accurate. These tips are in a category I like to call;

THINGS YOU NEED TO DO FOR YOURSELF NOW.

SPELLING: typically, at the end of a deposition or a day of trial your human Stenographer will ask counsel and the witness to clear up any questions as to the spelling of certain words said during testimony. A tape recording cannot ask how to spell words. A tape recording cannot even ask if you meant to say to, too or two. My suggestion is to spell out for the microphone, as they are said, any difficult or easily misidentified words. Perhaps, if you feel this might slow down some difficult examinations, a written list may be added to the exhibits at the end of each day or the recording can be restarted and spellings verbally added at the close of the day’s proceedings. In any case, since whoever will eventually type out a transcript of the recording will not have an opportunity to ask the parties for clarification, it is my belief that counsel must now pay much closer attention to what is said, and how it is said.

PUNCTUATION: Let’s eat Grandma. Let’s eat, Grandma. One sentence; a friendly invitation to dine with a beloved elder relative. The other; evidence of a conspiracy to commit Senicide. Do you need that kind of confusion on your appeal petition?

ACRONYMS: A Confusing Regional Or National Yardstick Measuring Sincerity. If your case or experts require the use of copious amounts of acronyms the least you can do for later readers is to explain what they mean. A recording cannot tell if your weather report is coming from NOAA or Noah.

CAPITALIZATION:  i don’t know about you but i never really got into the poetry of ee cummings i need capital letters to let me know when i come to the beginning of a new sentence or if a word is a name it is also a function of punctuation but i think that john smith should be recognized in a record as a person and not a bathroom in a forge.

ACCENTS: Fust, I’d like to tank yawl for reeding dis article i rote. Exaggeration? Maybe, but wait until you have a nervous client that you sometimes have difficulty understanding on the phone. Now imagine someone, somewhere else, will listen to a recording, made in a large room with many people and have to make out what is said. Make sure your witnesses speak loudly and clearly every time they say something because there will be no other chance to say what they mean and no one to ask them to explain once they leave the stand.

VOICE-OVERS: I don’t mean narration over images used for dramatic effect but too many voices at once. A living reporter can and will admonish speakers for interruptions and indistinguishable language and ask that the questions and answers be spoken again. A recording can do what?

DOCUMENTS, IMAGES & GESTURES: Everyone in the room can see what you are showing on the monitor. Everyone who was looking saw the witness point to the spot on the x-ray. Everyone except the bank of microphones around the room. If you want future readers of your record to understand what is happening on screen and in the room, you or your witness will need to describe what is happening. Imagine needing to present your physical evidence to a blind juror. If you want your record to reflect anything, you now need to hold up the mirror AND describe what you mean.

TAKE NOTHING FOR GRANTED

 Again, I am just an outside observer with a lot of time spent sitting in courtrooms listening. And as someone who relies on a reporter’s accurate and complete transcript to make my living showing videos, I have come to appreciate all the little things that a competent, experienced, tested and certified stenographer will do to create and protect The Record. All the little things you will now have to do yourselves in order to make sure you have the most accurate and complete transcript possible. If you must rely on a recording and unknown transcriptionist or voice recognition software to produce the most important component of your case then be pro-active and detailed in your presentation. Of course, if your case is so important that you will use a freelance stenographer at all of your depositions rather than record them for later transcription then maybe your case is important enough to ask those same freelance stenographers to come to court with you.

 

Sidebar: At the risk of telling you my trade secrets I would like to offer you a tip on using your video depositions clips in presentations. You can even edit your own video playback for the jury. Using the editing tools that come with the typical synchronized Digital Video Transcript (DVT) disk you receive from your videographer you can highlight transcript text, use the clip making tool to create a video file containing your designated text and save that clip to your computer. Then, when you have your range of designated clips you arrange them into a Windows Media Player Playlist which you title with the name and date of the deposition, and put all those files into a folder. When it comes time to play simply double-click on the playlist title in the folder and your Windows Media Player will play your clips in order.

By Ian McWilliams

​

ASTC members share their knowledge and experience

“I change people’s minds for a living. Especially the juries”
Dr. Jason Bull CBS-TV-BULL

Hollywood’s entertainment industry has long had a fascination with the legal system. From Perry Mason and Matlock to Law and Order, lawyer dramas have dominated the television airwaves. But now there is a new player on the small screen, a one-hour drama on the CBS Television Network created by former trial consultant turned TV personality, Dr. Phil McGraw. The title character, a charming rogue named Dr. Jason Bull, played by actor Michael Weatherly, is a Psychologist with degrees in 3 disciplines who leads a litigation consulting firm named Trial Analysis Corporation. TAC inhabits a high-tech New York City office and features a staff which includes new generation characters such as; a smart, driven young woman assistant; a young Hispanic former prosecutor who leads mock trials; an oddly named Millennial hacker; a tough, female former FBI investigator and a male Vogue stylist. Together they practice what is often called Trial Science, a multi-discipline study of behavioral sciences, linguistics, mass communications, training, and education techniques and more. The episodes have been introducing the audience to the characters and the work they do, building dramatic tension, sharing backstories and giving examples of topics which form the basis of many real-life studies which are conducted by real-life trial consultants.

But it is impossible to tell a complete story in 43 minutes, where acts and scenes are written with commercial breaks in mind. And sometimes entertainment considerations may take precedence and a certain dramatic license may shade a story arc. So when I see a “trial consultant” who instructs his staff to hack into a juror’s computer and plant a fake news story, I just have to say “what the…” and remember that I am watching a television drama. And if I am offended by this portrayal of a profession I embrace I just listen to the words of the show’s producer Dr. Phil, who, when interviewed about the show tells folks including real-life Trial Consultants, “It’s Hollywood. Get over it.”

THIS IS NOT AN ARTICLE ABOUT A TELEVISION SHOW.

This is more, an introduction to a respected profession which embraces a wide variety of practices and the national organization that promotes that profession. I would like to introduce you to the Very Wide World of Trial Consulting.

“We’ll know what a jury’s going to come back with. We’ll know because that’s what we do. That’s what trial science is.”
Dr. Jason Bull

Because an accurate explanation requires expert knowledge I thought it best to use the words of some of the nation’s top trial consultants, testifying as it were, about what they see as their profession and their roles in the justice system. They come from very diverse backgrounds from research science to the law, from applied work in psychology to marketing, advertising, and public opinion research. From professional communication applications, from drama, training and education to mass communications, behavioral science, linguistics and more. But there is one common thread which binds this group of professionals, the ASTC.

Founded in 1982 as the Association of Trial Behavior Consultants, the American Society of Trial Consultants is the only national body to create professional standards and practice guidelines for Trial Consultants; to bring together an extensive repository of reference materials, and provide training and continuing education, business development and networking opportunities for ASTC members and attorneys. The goals of the Society are presented in its Mission Statement:

The ASTC Mission. “Our legal system is based on the principle that each party putting forward the best case – making the most of facts, law and presentation skill – allows the truth to win out far more often than not. In that kind of a system, the goals of the ASTC lie at the very heart of the law’s ability to deliver justice. We help litigators become better at persuading jurors and other fact-finders, and that makes the system work in a way that is more meaningful, more reliable, and ultimately, more fair.”

ASTC has a membership from across the country (currently 45 states). Membership has grown from 19 in 1983 to a diverse group today that is over 400 strong. Members bring skills forged in a number of academic disciplines (including psychology, communication, theatre, sociology, law, and many others) to the tasks identified by the Society in 1982.

Member consultants provide some or all of the following services: case theory and presentation, community attitude surveys, continuing legal education seminars, deposition preparation, expert testimony, focus groups, graphics and demonstrative evidence, jury selection, language and the law, media relations, mediation and arbitration (ADR), mock jury trials, negotiations, opening statement and closing argument preparation and evaluation, post-trial juror interviews, presentation strategy, pro bono services, trial simulations, trial technology, voir dire strategy, change of venue studies and witness preparation.
The Society recognizes there are many avenues and aspects of trial consulting. As the ASTC has grown over the years, it has addressed a number of issues crucial to all professions, while continually improving the skills, visibility, and standing of the profession of litigation consulting. To that end, members have created the ASTC Code of Professional Standards.

The Code provides enforceable standards and offers guidance in many areas common to trial consultants working in this diverse field. The Code provides for: ETHICAL PRINCIPLES, PROFESSIONAL STANDARDS , and PRACTICE GUIDELINES.

Under ETHICAL PRINCIPLES is: COMPETENCE: Trial consultants strive to maintain high standards of competence in their work. They recognize the boundaries of their particular competencies and the limitations of their expertise. When in the role of trial consultant, the member does not practice law but seeks to enhance the practice of law by facilitating the skills of the legal practitioner. Trial consultants are dedicated to providing the legal community with information on litigation related behavior and communication. They provide only those services and use only those techniques for which they are qualified by education, training, or experience. They maintain knowledge of relevant professional information related to the services they render.”

Under the heading of GENERAL PROFESSIONAL STANDARDS are categories which include: Consultant-Client Relationship, Training and Provision of Services and Conflicts of Interest.

And for PRACTICE GUIDELINES the Society has created specific Standards and Guidelines in major fields of practice including Venue Survey, Witness Preparation, Small Group Research, Jury Selection, Post-Trial Juror Interviews and Online Research.

BUT REALLY, WHAT IS TRIAL CONSULTING?

One of the biggest disciplines in Trial Consulting is Jury Selection and Persuasion. Daniel Dugan, Ph.D. an ASTC member and Trial Consultant with Trial Science, Inc. in Reno NV compares his approach with bicycling in time trial competitions, where each rider starts at their own assigned time and race against the clock. During the race, you have no idea what place you are in and results are not posted until everyone is finished. Kind of like a jury trial to verdict. As Dr. Dugan describes it:”Our clients have one chance to put on their case in front of a jury. All the practice arguments, powerpoint slides, animations, etc., that we test in front of focus groups and mock jurors are performed to hone in on making our telling of our story the best that it can be. We are sophisticated in our practice and rehearsal techniques and we learn [usually by trial and error and feedback from our test audiences] what works and what does not. The feedback shapes our final effort. Our clients are allowed to have a fair and impartial jury hear their case. We cannot advise who to put on the jury, but we can suggest who to take off. Our science, however, we practice it as professionals, is to be very good at finding even the tiniest bit of bias that a prospective juror might have against our client and to suggest to our attorney who that person is and why they might hurt us. Most of the time we are faced with finding relative levels of bias and challenging the most biased while having to settle for some remaining bias among other jurors. The point is, our job is to eliminate bias as much as possible and just because we are very good at what we do does not mean we have manipulated anything at all. Then we have to sit back and wait for the outcome. We have no control over what the other side might do, what jurors decide is important or not to them, or how the dynamics of the deliberations are going to play out. We do our pre-trial work to be fully prepared for our one shot at a decision and the rest is out of our control or beyond manipulation.”

CAN A JURY REALLY BE MANIPULATED?

Often, people speak of “manipulating” juries, that trial consultants, using scientific techniques and tools can somehow mysteriously cause jurors to believe the unbelievable. David Illig, Ph.D., of Litigation Psychology in Portland Oregon writes: “A valuable thing to teach both witnesses and attorneys is that we should analyze communications in terms of BOTH ‘intent’ and ‘impact.’ You can have all the certainty you want about what your intention is, as a speaker. However, the impact is located in the audience, not the sender. ‘Manipulation’ is most often associated in people’s brains (audiences) with ‘improper’ influence, ‘unfair’ influence, and ‘incorrect’ impact. It is more often associated with being dissociated from the ‘truth,’ rather than associated with getting to the truth. Furthermore, saying that both attorneys and litigation consultants are attempting to manipulate the juries is damaging to the image of the court system. Symbols make a huge difference. Humans are symbolic creatures.”

And another voice on the topic of manipulation is Charlotte “Charli” Morris, M.A. of Raleigh, NC, co-author (with the late Dr. Richard Crawford, ASTC Past President) of The Persuasive Edge (Second Edition) and founder of Legal Communications Consulting. Charli writes:”I find it disrespectful toward jurors to talk about manipulating them. I don’t take them for granted. I don’t believe we control their minds or their behaviors or their decisions. I want to know what they believe before they sit on my client’s case so I can think about ways to connect our message to their experience and attitudes. I want to eliminate folks who reveal the bias that is most harmful to our case so they can’t unfairly manipulate the outcome of a trial. But that is an open and honest exchange that our attorney-clients can have during voir dire. And that is a direct connection we can make between our evidence and arguments and a juror’s life experience and attitudes. That is a healthy and non-manipulative connection we can make between our case and who they are.”

ASTC: GIVING BACK TO THE LEGAL PROFESSION

Another goal of the ASTC is the collection and distribution of knowledge and to provide a forum for the exchange of ideas, opinions, techniques, experiences and research results in the area of trial consulting. And the results are outstanding. The ASTC has recognized that both the members and the broader academic and legal community have a strong interest in what trial consultants know, the research we rely on, and the experience we have gathered from study, research, and experience. The ASTC has brought its publications to the membership and to an ever-widening audience. These communication outlets include:

ASTC Web – our general public and members-only website found at www.astcweb.org where you will find, among other features, a Consultant Locator and links to publications including:

Deliberations ASTCBlog: The purpose of Deliberations is to provide consultants and litigators from diverse backgrounds with the opportunity to disseminate and discuss important information about the field of litigation consulting to the broader legal community. Deliberations provides a forum to discuss not only “tips of the trade,” but also important (and sometimes controversial) information regarding the application of the social sciences to the practice of litigation. It has been an American Bar Association “Top 10” blog and cited as an excellent source for legal information. Deliberations averages almost 8000 hits per month.

The Jury Expert – a quarterly trade skills magazine featuring social science research applied to the legal field. It is written primarily for attorneys and others in the litigation community. ASTC members and guest authors translate relevant research into practical information and techniques for litigators. TJE had been published by ASTC since 2005 and provides access to hundreds of articles on such topics a: Bias, Case Preparation and Presentation, Voir Dire and Jury Selection. It appears in an online format here.

A permanent ASTC Pro-Bono Committee and committed ASTC members provide access to Trial Consultants around the nation. But the members and Society aim much higher. In the words of ASTC Past-President Kenneth Broda-Bahm, Ph.D. of Persuasion Strategies of Denver CO, whose own blog, The Persuasive Litigator, was honored by the ABA Journal with the highest recognition they have for bloggers—the Blawg 100 Hall of Fame.

“We are trial consultants, and our profession comes down unambiguously and unapologetically on the side of the Constitution, civil rights, and an open and tolerant society. If we can help it, any promised rollback on these rights will not come easily. Civil rights are already strained on a number of fronts in this country and the situation is likely to get worse in coming years. We are entering what’s likely to be a prolonged time where ideas like routine stop and frisk, ‘extreme’ vetting, ‘enhanced’ interrogation, registration based on religion, voting suppression, deportation forces… it goes on…. are all being tossed around like they’re normal political ideas. Some of these battles will be fought in the courts. Accordingly, now more than ever, there should be a greater role for experts in legal psychology and persuasion to add knowledge, research, and effectiveness in an organized and purposeful defense of American civil rights, an experienced group that is expressly committed to offering targeted low- or no- fee work on behalf of identified challenges to civil rights, working with groups like the ACLU and the Southern Poverty Law Center, with the goal to regionally identify cases and then offer the right people to help.”

HOW CAN I FIND OUT MORE ABOUT TRIAL CONSULTING?

First off, don’t believe the BULL. Take it as it is, a 45 minute hour of entertainment. I find it amusing that Dr. Bull not only leads his team to a victory for their client but he has often gone far beyond the Trial Consultant’s duty to help solve the crime, then watches as the true villain is brought to justice in the final act. His actions often “break the law” but in the world of television entertainment, should be seen as a very fanciful take on a peaceful profession that respects the law. For the real deal just visit the ASTC Home Page.