Outstanding Trial Work Best Practices as Seen From the Bench

Sponsored by The Recorder An Incisive Media Publication ___________________ October 15, 2008 San Francisco, California

ROUNDTABLE MEMBERS

► Hon. Charles R. Breyer – Judge, U.S. District Court, Northern District of California ► Hon. Catherine A. Gallagher – Presiding Judge, Santa Clara Superior Court ► Hon. Harry W. Low – Neutral, JAMS; former Justice, First District Court of Appeal ► Hon. Curtis E.A. Karnow – Judge, San Francisco Superior Court ► Peter Keane (moderator) – Dean Emeritus, Golden Gate University School of Law

Honorable Charles R. Breyer received his A.B. (1963) from Harvard College and his J.D.(1966) from Boalt Hall School of Law. Upon graduation from law school, Judge Breyer clerkedfor Oliver J. Carter, Chief Judge, U.S. District Court for the Northern District of California. Hethen served as an Assistant District Attorney in San Francisco until 1973, when he was appointedAssistant Special Prosecutor, Watergate Special Prosecution force. Judge Breyer prosecuted the“plumbers” for violation of the civil rights of Daniel Ellsberg. He entered private practice in1974, specializing in the defense of white collar criminal cases. Judge Breyer has lectured onbehalf of the California Continuing Education of the Bar, the Harvard Law School evidenceproject, the Practicing Law Institute, and the Hastings College of Trial Advocacy. He is also anadjunct professor at Hastings College of the Law. Judge Breyer was appointed to the U.S.District Court for the Northern District of California on November 12, 1997, by PresidentClinton. Judge Breyer is a member of the Judicial Conference of the United States and serves onits Executive Committee.

N:\BIOcrb.WPD

Catherine A. Gallagher Superior Court of Santa Clara County of Santa Clara

191 North First Street San Jose, California 95113

(408) 882-2700

Employment 2006- present Presiding Judge , Superior Court, County of Santa Clara 2004-2006 Assistant Presiding Judge, Superior Court, County of Santa Clara,

California Duties: Prepare for assuming responsibilities as Presiding Judge as well as tried civil and criminal cases and presided over the formation of Unified Family Court.

1989 to Present Superior Court Judge, County of Santa Clara,

California Duties: Regular duties of a trial judge including law and motion calendars, settlement conferences and case management conferences. Have been assigned to Criminal, Civil, Family, Probate and Mental Health, Juvenile, and Appellate Divisions of the Court. Presiding Judge of Criminal, Probate and Appellate.

1984-1989 Municipal Court Judge, County of Santa Clara, California Duties: Preside over court as a trial judge. Assignments on Master Criminal and Civil Calendars include pre-trial settlement conferences and law and motions as well as criminal arraignments and preliminary hearings.

1984-1990 Professor, University of Santa Clara, Paralegal Institute, Santa

Clara, California Duties: Taught paralegals principles of securities regulation.

1979-1984 Deputy District Attorney, County of Santa Clara, San Jose, California Duties: Prosecute criminal cases including murder and child molest cases. Assigned to felony, misdemeanor and Career Criminal units.

1979-1981 Special Assistant United States Attorney, United States Attorney’s Office, San Francisco, California.

Duties: Consultant and trial attorney for complex securities fraud case.

1975-1979 Staff Attorney, Securities and Exchange Commission, Division of

Enforcement, Washington, D.C. (1975-1977) and San Francisco, California (1977-1979). Duties: Conducted investigations and litigated cases involving federal securities laws, including litigation in federal district court and administrative courts.

1978-1979 Bar Examination Grader, State Bar of California, San Francisco, California.

1974-1975 Law Clerk, Honorable Joseph M.F. Ryan, Jr., Superior Court of the

District of Columbia, Washington, D.C. Duties: Researched and wrote memoranda as directed by the judge primarily in areas of criminal and family law.

Bar Admissions

Inactive in California, New York and District of Columbia.

Education J.D. Degree, Georgetown University Law Center, Washington, D.C. (June, 1974) B.A. Degree, (History) St. Mary’s College, Notre Dame, Indiana (1967-1970)

Curtis E.A. KarnowJudge of the Superior Court of California, County of San Francisco

400 McAllister Street, San Francisco California 94102 (415.551.4020)

University of Pennsylvania Law School, J.D. 1977; Editor, University of Pennsylvania Law Review; Harvard University, A.B., Philosophy, cum laude, 1974.

Judge Karnow was appointed by the Chief Justice to the California Judicial Council’s Court Technology Advisory Committee. He completed his second three year term on the Judicial Council’s Committee on Civil & Small Claims with jurisdiction over aspects of the state’s civil litigation system in 2005. He chaired the subcommittee on discovery and rules reform, is a member of the Council’s task force on temporary judges, and a member of the Council’s working groups on electronic discovery and on electronic access. He has assisted in the creation of rules on California’s case management, discovery, sealing records, summary judgment, and on uniformity among the trial courts’ local rules. He serves on his Court’s Executive and Rules Committees, and chairs his Court’s Technology Committee.

Past experience includes a clerkship with Judge Louis H. Pollak (E.D.Pa.) and service as Assistant United States Attorney (criminal cases from grand jury indictment to appeals). While in private practice Judge Karnow specialized in antitrust, intellectual property litigation, computer and internet law. He has lectured widely, including for the University of Michigan Business School, Yale Law School, and the Haas School of Business at the University of California at Berkeley. Judge Karnow was raised in Hong Kong, France, and North Africa, and holds private and instrument pilot ratings.

Judge Karnow is the consulting editor on ACTION GUIDE: HANDLING EXPERT WITNESSES IN CALIFORNIA COURTS (CEB 2006, 2008); and CALIFORNIA CIVIL DISCOVERY PRACTICE (CEB 2006, 2007).

SELECTED ARTICLES & LECTURES

COURTS & LITIGATION

“Admissibility of Electronic Documents,” Bar Assn. S.F. (May 2008)

“Electronic Documents and E-Discovery: Flagging the Issues,” Bar Assn. S.F. (March 2008)

(Forthcoming) “Conflicts of Interest And Institutional Litigants,” 32 The Journal of The Legal Profession (Fall 2008)(game theory analysis of conflicts of interest)

(Forthcoming) “Setting Bail for Public Safety,” Berkeley Journal of Criminal Law (October 2008)

“Bridging the Divide,” Bar Assn. of San Francisco (March 2007)(challenges for new lawyers)

“Rhetoric of Academe,” 41 U.S.F.L.Rev. 135 (2006)(legal education)

“The Power of the Court,” address to visiting members of the Ministry of Justice, Vietnam (September 2005)

Faculty, Uniform Local Rules, Statewide Judicial Branch Conference (San Diego, September, 2005)

“Managing Civil Litigation,” Judicial Council of California, Court News 1 (May/June 2002)

“New Economy, Old Laws,” House Counsel 24 (March/April 2001) (federalism)

“Discovery In The Electronic Age,” American Bar Association, Litigation Section (San Francisco, August 1997)

“Issues Meeting: Reducing the Costs of Civil Litigation,” Judicial Council of the State of California (February 1996)

“Uniform Local Rules Now Attainable,” California Bar Journal (April 1996)

“Local Management/State Policies,” 1996 California Judicial Administrative Conference, San Diego (January 1996)

“Misrule of Law: A Hodge-Podge of Local Rules,” The Daily Journal (October 26, 1995)

“Who Needs the ‘English Rule’: Advantages of Fee Shifting Can be Achieved by Other Means,” Daily Journal (July 27, 1994)

“Archeology of Error: Tracing California’s Summary Judgment Rule,” 24 Pacific Law Journal 1845 (July 1993)

“Resolving Discovery Battles Doesn’t Have to be Expensive,” The Daily Journal (June 2, 1993)

Co-author, Demystifying the Arbitration Process(American Arbitration Association 1993)

“Paying the Price of the Burden of Proof,” The Recorder (October 1991)

“Follow the Federal Lead on Summary Judgments,” 9 California Lawyer 67 (December 1989), reprinted, Levine, et al., CALIFORNIA CIVIL PROCEDURE (West 1991)

“Issues of International Arbitration,” (International Trade Council, Spring 1991)

“Seven Strictures on Summary Judgment,” San Francisco Barrister 3 (August 1990)

INTELLECTUAL PROPERTY AND DEVELOPING TECHNOLOGY

A selection of the essays below, and others, is published in Judge Karnow’s book, FUTURE CODES: ESSAYS IN ADVANCED COMPUTER TECHNOLOGY AND THE LAW (Artech House, London & Boston: 1997). He is contributory co-author of EBUSINESS AND INSURANCE (CCH: 2001) (chapters on Internet security, copyright, trademarks and trade dress, indirect liability on the internet), INTERNATIONAL ECOMMERCE(CCH: 2001) (privacy & security), NETWORK SECURITY: THE COMPLETE REFERENCE (McGraw-Hill 2004), and CYBERCRIME:DIGITAL COPS IN A NETWORKED ENVIRONMENT(NYU Press, 2007)

“The Digital Deal: Electronic Contracts & Signatures,” The CIO Conference, Pebble Beach (July, 2004)

Law and Cyberspace Bibliography, http://mitpress2.mit.edu/e-journals/Leonardo/isast/spec.projects/intellpropbiblio.html (2003)

“Digital Security: Policies and the Law,” Black Hat Briefings, Seattle (January 2004); Security Decisions Conference, Chicago (October 2003)

"Running The Matrix: Kerberos Extensions and Owning The Universe," Black Hat Briefings, Las Vegas (July 2003)

“Strike And Counterstrike: The Law On Automated Intrusions And Striking Back,” Keynote Speech, Black Hat Briefings, Windows Security 2003, Seattle (February 2003), presented in modified form at Yale Law School, CyberCrime and Digital Law Enforcement (March 2004), published in modified form, 8 Cyberspace Lawyer 4 (March 2003), 7 Yale Journal of Law & Technology 87 (2005)

WHITE PAPERS: “Electronic Signatures: Navigating the Electron Storm” (electronic signatures and contracts, encryption, and digital rights management)(rev. 4: 2004); “Code Remix: A Guide to Open Source” (2004)

“Digital rights management is Microsoft's Trojan horse,” Computerworld (online) (April 2002)

“Contracting by Autonomous Robotic Agents,” Legal Implications Of Emerging Technologies, Chicago (June 2002)

“Safety Screen,” Daily Journal 4 (August 31, 2001) (anti-circumvention devices under the Digital Millennium Copyright Act)

“Online Enforceable Contracts: The Empowerment of the E-SIGN Statute,” ebillhttp://www.ebillmag.com/editorial2.asp?ID=37 (June 2001)

“A Divisible Union,” 2 Cyber Tech Litigation Report 35 (September 2000) (federalism and the Internet)

“Crossing the Line: Legal Issues and Computer Network Security Risks”, ABA, 5 Computer Litigation Journal 7 (April 1999), originally presented at Computer Media Center, New York Law School (February 1999)

“Liability for Distributed Artificial Intelligence,” 11 Berkeley Technology Law Journal 147 (1996)

[Older presentations and technology essays: listing available on request]

Two Embarcadero Center • Suite 1500 • San Francisco, CA 94111 • Tel 415-982-5267 • Fax 415-982-5287 • www.jamsadr.com

Hon. Harry W. Low (Ret.) has over 35 years of dispute resolution experience as a sitting judge and JAMSneutral. Justice Low's expertise includes employment law, business litigation, sexual harassment,insurance disputes, personal injury, real or personal property disputes, and environmental law. Justice Lowhas 25 years of judicial experience in civil, criminal, and government law and has authored opinions onvirtually every area of California law.   ADR Experience and Qualifications• Conducted a wide variety of mediations, arbitrations, and settlement conferences since joining JAMS in

1992• Conducted fact finding studies and written reports for institutions and agencies• Extensive experience in handling wrongful termination, sexual harassment, breach of contract, insurance

coverage issues, tort claims, and medical and legal malpractice cases• Highly experienced in handling discovery disputes assisting lawyers in appellate matters, and mediating

successfully many pending appellate cases.• Special Master in a number of complex cases, including a major toxic pollution dispute• Trustee for insolvent insurer   Representative Matters• Mediated employment disputes involving sexual harassment, wrongful termination, discrimination, and

enforcement of settlement• Mediated insurance coverage cases involving construction costs, business ventures, and tort coverage• Successfully mediated civil rights cases involving privacy issues and allegations of racial discrimination

by a major restaurant chain; civil rights disputes with government agencies and commercial businesses• Mediated real estate disputes involving land use issues, brokers duties, property partitions, and

co-owner disputes• Arbitrated allocation of clean-up costs from leaking storage tanks at sites nationwide; arbitrated

Proposition 65 food and medical products• Arbitrated international telecommunications dispute, health insurance disputes, business and property

disputes• Successfully mediated insurance equitable contribution indemnification among 32 insurance companies   Honors, Memberships, and Professional Activities• BAJI Committee Member, 2003-Present• Spirit of Excellence Award, American Bar Association, 2002• Judge Lowell Jensen Public Service Award, Boalt Hall School of Law, UC Berkeley, 2000• Distinguished Alumni Award for extraordinary contributions to the legal profession, Boalt Hall Alumni

Association, UC Berkeley, 1993• President, San Francisco Human Rights Commission, 1999-2000• President, San Francisco Police Commission, 1992-1996• National President, Appellate Judge Conference of the American Bar, 1991• National President, Chinese-American Citizens Alliance, 1981-1991• President, California Judges Association, 1978-1979• Board member, Center for Judicial Education and Research

• California Judicial Council• President, Center for Pacific Rim at the University of San Francisco• Founding Chairman of the Board, The Chinese American International School• Lectured extensively throughout the United States, Asia, and Europe   Background and Education• Insurance Commissioner, State of California Department of Insurance, 2000-January 2003• Presiding Justice, California Court of Appeal, 1983-1992• Judge, San Francisco County Superior Court, 1974-1983• Judge, San Francisco Municipal Court, 1967-1974• Commissioner, Worker's Compensation Appeals Board• Deputy Attorney General for California in the Civil and Tax Division• J.D., Boalt Hall School of Law, University of California, Berkeley• B.A., University of California, Berkeley   References Available Upon Request

Hon. Harry W. Low (Ret.) (General Biography) Page 2 of 2

Two Embarcadero Center • Suite 1500 • San Francisco, CA 94111 • Tel 415-982-5267 • Fax 415-982-5287 • www.jamsadr.com

Peter Keane

Professor of Law and Dean Emeritus, Golden Gate University School of Law B.A., City College of New York; J.D., Southern Methodist University Areas of Specialization: Criminal Law, Evidence, Professional Responsibility

• Served as Dean from 1998 through 2003

• Author of San Francisco's Handgun Control Ordinance and of California's Proposition 190 amending the California Constitution and reforming the State Commission on Judicial Performance

• Former Vice-President of the State Bar of California

• Former Chief Assistant Public Defender in the San Francisco Public Defender's office from 1979 through 1998

• Former assistant professor at Hastings College of the Law

• Internationally known legal analyst for broadcast media: has appeared on CBS Evening News, CNN, BBC, ABC World News, Larry King Live, Nightline, Burden of Proof, MSNBC InterNight, and other news programs throughout the world

• Provides regular legal analysis on CBS television and radio in San Francisco

• From 1994 to 1997, he hosted "Keane on the Law," a weekly program on KPIX radio in San Francisco

• Member of California and Texas Bars

Producing and Directing Your Way to Settlement Joel D. Feldman New Jersey Law Journal 09-17-2008 In order to get the best result for our clients, whether by settlement or verdict, we need to reduce our cases down to their essence, simplifying themes and presenting compelling arguments on the evidence. As trial lawyers, we try to control every part of the case, from opening to closing - all the witnesses, questions, answers and every piece of evidence presented - striving to eliminate all surprises and to keep the jury focused on our theme. Putting a case together has a lot of similarities to producing a television program. Think about those TV courtroom dramas - the directors, producers and actors working from a script, knowing in advance everything that is going to happen and using professional filming and studio editing techniques to dramatically tell the story. Did you ever wish you could communicate your client's story as effectively and dramatically as it's done on TV? With a good video settlement brochure, you can. Video Settlement Versus Settlement Binder The traditional settlement binder contains a settlement memorandum, followed by supporting exhibits, including accident and investigation reports, deposition segments, reports and photographs from liability experts, applicable medical records, life care plans and vocational and economic loss reports. A settlement binder can be several inches thick and may take the reader a couple of hours to review. Although we try in the memorandum to present our case with as much drama and impact as possible, it's not likely that the defense counsel, adjuster, mediator or judge will actually look forward to reviewing all of your written materials or that they will be significantly impacted by that review. On the other hand, a high-quality video settlement brochure can be incredibly effective in drawing attention to your case, creating the appropriate drama and emotional impact. Settlement videos are constructed utilizing short segments of professional filming of lay witnesses and expert witnesses done ex parte in the studio or in the witnesses' workplaces or homes. The witnesses are more comfortable and more relaxed than in a deposition or courtroom setting and, accordingly, both the substance and appearance of the film are vastly superior. Exploring losses suffered with the victim and the victim's family in the familiarity of their home often produces a stunningly genuine, intimate, graphic and compelling narrative that would likely not be produced in the formal courtroom setting. Videotaped segments from defendants' depositions, often containing devastating admissions, are juxtaposed with the best segments from your witnesses. Professional filming, editing and other Hollywood techniques are utilized; however, the witnesses are always real, and the testimony is honest. The "story" of the accident or injury is told through alternating segments from different witnesses, which are paced to create tension and drama. While the focus in filming a settlement brochure is to place your case in a favorable light, it is critical to fairly represent your client and witnesses. Done right, the carrier, defense counsel, risk manager, mediator and judge will get a realistic preview of how the witness will appear before the jury. Any attempt to distort the facts or use inadmissible evidence will serve as a distraction and, more importantly, will likely result in the video being given little credibility. An often overlooked benefit of doing a video settlement brochure is that both plaintiff and

defense counsel can use it when evaluating the case before focus groups. Using the same video before multiple groups of people gives you the ability to evaluate feedback and the impact of your case. After cases settle, we often learn from defense counsel that not only did they and the adjusters and risk managers review the video settlement brochure but so did their staff and their family members. Examples of Effective Video Settlement Brochures Pedestrian death. In a pedestrian motor vehicle death case, the defendant claimed that as he left the roadway where the impact with the pedestrians occurred, he thought he hit a mailbox or a large box. As he was testifying on videotape, we used a series of police photographs showing the extensive damage to the car, including windshield damage and pieces of the car scattered along the roadway, to show the ridiculousness of his testimony. The surviving spouse, who was also struck, had extensive leg fractures and was lying on the roadway. We told the story of the accident by using alternating segments from the husband, an independent witness, the defendant and the medical examiner. As we came closer and closer to the actual impact, the length of the segments became shorter and shorter, adding drama. The defendant fled the scene and the independent witness who observed him was filmed stating that it was the worst thing any individual could do - leaving someone injured on the roadway. The surviving spouse could not get up due to his injuries and, as it was dark, could not see his wife's body. He recalled his agony, not knowing where his wife was, whether she was alive or dead until finally a bystander told him, "Oh man, she's dead." Construction accident. In a construction accident case, a 26-year-old worker fell at a job site and was rendered a quadriplegic. After meeting with all the family members and filming them in the studio, it became apparent that the most compelling was the victim's 73-year-old grandmother. At the filming in the studio, I heard her say with a cracking voice and tears welling in her eyes that she mourned for her grandson, the way he was and the way he is now. The testimony was so genuine and moving, I knew that everyone who heard it would be as affected as I had been. She described how physically active her grandson had been, working out at a gym, swinging a golf club, casting a fishing rod, riding a bicycle and making things with his hands. We filmed the plaintiff in the rehab facility demonstrating his total dependence on others, from bed to wheelchair transfers, dressing, physical therapy and even brushing his teeth. In the video settlement brochure, the rehab film was used and timed precisely so that as the grandmother was describing what her grandson liked to do before the accident, his present inability to move his arms or legs or to care for himself was depicted simultaneously. Products liability. In a products liability case, a malfunctioning baseboard heater caused a nonflame retardant foam-filled couch to rapidly ignite, killing a mother and her daughters in a house fire. Her husband and 18-year-old son survived the fire. The husband was quiet, reserved, had a checkered past and made a poor witness. The defendants took the position that the husband was their best witness and the biggest reason not to consider paying significant dollars. In the video settlement brochure, we did not use the husband at all. Instead, the "story" was told by the surviving son who had lost the people closest in the world to him, his mother and sisters. We know that deaths in fires are particularly painful and horrific, and the video settlement brochure was the perfect way to graphically demonstrate that.

The medical examiner explained the process whereby noxious fumes enter the lungs, searing them as the temperature increases, and causing uncontrollable coughing. The 911 recording was obtained and captured the mother speaking with the 911 operator. In a matter of seconds the mother's voice changes, becoming slurred and almost child-like as her disorientation increases followed by her agonized screaming, "I can't breathe." As the 911 recording played, we used a series of still photos of the fire getting progressively worse until the entire house was engulfed in flames. Medical malpractice. In a medical malpractice case, a 25-year-old woman who was given an epidural during the birth of her child developed an epidural abscess that resulted in permanent paralysis. The theory in the case was that the nurse, new resident and attending physician recorded symptoms indicative of developing neurological injury but failed to take action. In the video settlement brochure, while the plaintiff talked about how her symptoms progressed, highlighted notes from the hospital records were displayed corroborating the plaintiff's version of the events. We took videotaped depositions of the nurse, resident and attending physician, knowing that ultimately a video settlement brochure would be produced. The attending physician testified that he told the resident to order an emergency MRI if the symptoms persisted. The resident contradicted the attending, testifying that he had never instructed her to do so, and she admitted she didn't know the significance of these worsening symptoms. The nurse testified at her videotaped deposition that she had specifically advised the attending physician of the worsening symptoms, and the attending did not seem concerned. In the studio, we filmed our expert liability witness and obtained short, powerful segments summarizing the breach in the standard of care and highlighting the inconsistent testimony among the defendants. In less than 10 minutes, the plaintiff's entire case on liability was presented dramatically, the defendants were cast in a terrible light and sympathy and compassion were created for the victim. Rewarding Results Over the last several years, our firm has created more than a dozen video settlement brochures, costing anywhere between $20,000 to $55,000 and contributing to gross settlements approaching $50 million. After reviewing the video settlement brochure, clients and their families have thanked our firm for telling their story with compassion and dignity. Some of our most emotionally rewarding experiences as trial lawyers include the time spent working with victims and their families to prepare these brochures. If a picture is worth a thousand words, a video settlement brochure is priceless. The best-written memo or most impassioned speech can never be as persuasive as a good video settlement brochure. Feldman is managing partner at Anapol Schwartz Weiss Cohan Feldman & Smalley in Philadelphia and advocates for victims in cases ranging from dramshop, nursing home abuse, premises, products liability and medical negligence. He also coordinates the law firm's production of video settlement brochures.

Trial Advocacy Ben Rubinowitz and Evan Torgan New York Law Journal 07-31-2008 Demonstrative exhibits have become commonplace at trial. If used properly, these exhibits have the potential to resonate throughout the entire trial from opening statements forward. Too often, however, trial lawyers use the exhibits only in the one part of the trial during which the exhibit is offered - usually direct examination. Although a strong point can be made during direct, with a good amount of planning and a little bit of creativity, that exhibit can serve to bolster your point throughout the entire trial and, more importantly, serve as your surrogate during the one part of the trial when you are not present - jury deliberations. Use During Opening Statements Most lawyers do not even try to use an exhibit during their opening statement. To these lawyers the use of an exhibit at this time is off limits. The reason often suggested for this position is that no one has testified. Therefore, no one has laid an appropriate foundation for the admissibility of the exhibit and since proof is not offered during an opening statement, it is simply too soon to work with an exhibit. If, however, the trial lawyer has carefully planned for the use of the exhibit during discovery, its use during the trial will be a foregone conclusion, and thus, no rational basis to exclude it from openings exists. Take, for example, a photograph of an accident scene. The photograph taken one week after the accident depicts the scene of the accident involving a car and a pedestrian. The photograph was properly served during discovery and, more importantly, it was used during the deposition of the defendant driver. The following questions were asked during the defendant's deposition: Q: I show you what we have just marked as plaintiff's exhibit 1 for identification and I ask you do you recognize this? A: Yes. Q: What do you recognize this to be? A: That's the intersection where the accident took place. Q: Is plaintiff's 1 for identification a fair and accurate representation of the accident location at the time of the accident? A: Yes. Q: Is plaintiff's 1 for identification a fair and accurate depiction of the general layout of the roadway at the time of the accident?

A: Yes. Here, the foundation for the admissibility of the photograph has been properly laid during deposition. Since the plaintiff's attorney has the ability, pursuant to CPLR 3117(a)(2), to read in the deposition testimony of the defendant, he would also have the ability to offer the exhibit in evidence at the time it is read to the jury. Clearly, the exhibit is going to be used during the plaintiff's direct case. But what about its use during the opening statement? In this instance, the plaintiff's attorney has two ways to seek the use of the exhibit during opening. The first is to alert your adversary prior to opening that you wish to use the exhibit during the opening statement itself. By calling for a stipulation, both sides would have the ability to use the exhibits during the opening. If your adversary refuses, your next tact should be to make an application to the court for its use during opening. That application should include the following: that the exhibit is relevant; that the exhibit was properly served during discovery; that it was used during the deposition; that an appropriate foundation for its admissibility was already laid during deposition; that there is no prejudice to the defendant; and that you are merely seeking to clarify issues through the use of the exhibit. The worst that can happen is that the court denies your application. The best that can happen is that you might actually avoid the perennial confusion brought out by speaking in terms of North, South, East and West and the various combinations of these directions. Moreover, with trial judges in state court increasingly opting for federal court-style pretrial orders, or at least demanding that the parties submit lists of witnesses and exhibits prior to trial, the chances that a trial judge will entertain an application to use an exhibit during the opening would appear to be increasing. It seems clear that most judges would rather deal with disputes regarding the authenticity or admissibility of an exhibit prior to trial, and will wait for testimony only where there is a legitimate question regarding the exhibit that needs to be resolved from the witness box. Additionally, other exhibits should also be considered for use during the opening. In a damages trial or medical case, anatomical models are unquestionably going to be used during the medical proof. By representing to the court that your medical expert will lay the appropriate foundation for the admissibility of the model, its use during opening would serve two purposes. First, it allows for clarification of the issues. Second, it makes better use of court time by lessening the need to explain completely unfamiliar terms to the jurors. If a trial is truly a search for the truth, and the fundamental requirements for the admissibility of the exhibit will be satisfied, the notion that an exhibit cannot be used during opening because "that's the way it's been done in the past" is an antiquated notion that needs to be rethought. Use During Direct Examination Recently, trial support stores and services have sought to entice the trial lawyer with the creation of trial exhibits the likes of which were unheard of only a decade ago. PowerPoint presentations, computer-generated graphics and smart boards have become common at trial. A good exhibit, however, does not need to be flashy. It needs to simplify the issues and make the point in a clear and concise manner. The basic trial techniques for working with the exhibit

during direct examination, regardless of the type, should never be overlooked. The fundamental requirements must be met or the exhibit will never be admitted in evidence. Take, for example, a scale diagram created by an accident reconstructionist in the pedestrian-car accident discussed above. Before ever showing the exhibit to the accident reconstructionist, you must present the exhibit to a witness with knowledge of the scene as it existed at the time of the accident. Although you will not offer the exhibit through this witness, you are taking appropriate steps to authenticate the exhibits through their connection to the case at a relevant time: Q: I show you what has been marked as plaintiff's Exhibit 2 for identification. Do you recognize this? Q: What do you recognize this to be? A: That's a diagram of the scene of the accident. It shows the roadway and intersection. Q: Is that a fair and accurate diagram of the general layout of the roadway and intersection as it existed at the time of the accident? A: Yes. By not offering the exhibit at this time you are effectively preventing your adversary from conducting a voir dire examination designed to challenge the admissibility of the exhibit. The clever defense attorney will, however, cross-examine this witness anyway by pointing out, among other things: that the lay witness never took measurements of the roadway; never took measurements of the lane markings and crosswalk; never took measurements of the skid marks or the traffic control devices, and cannot state whether the diagram is to scale. It is through the accident recontructionist that the answers to all of these questions can be brought out. It is only at this time that the exhibit should be offered in evidence. The most common errors committed by attorneys working with exhibits on direct include the failure to let them reflect what is being said by the witness and the failure to properly mark the exhibit. Too often trial lawyers have let the following type of answer stand without seeking clarification: The driver was over here. He then turned this way, went that way, then struck the girl here and finally stopped in this area. Without clarification, the exhibit has done little to advance your cause at trial. Moreover, if you are lucky enough to get a favorable verdict at trial you will be hard-pressed to explain on appeal what that answer meant. The proper way to work with an exhibit is to put appropriate markings right on the exhibit at the time the answer is given: Q: Directing your attention to Exhibit 1, the enlarged photo of the accident scene. Where did you first see the driver? A: Here.

Q: Put a D1, for driver one, right on the exhibit where you first saw the driver. Q: When you say the driver turned "this way" show us how he turned. Now put an arrow right on the exhibit reflecting that turn. Q: Show us where the driver struck the girl by pointing to it on the exhibit. Put an "X" right at the point of impact. By having the witness point to the exhibit before marking it, you can make sure that the witness has it right before permanently marking an exhibit with erroneous information. A more advanced approach for working with an exhibit on direct is to use the "double-direct" technique. Here, the goal is to have the witness describe in detail the most important points in your case first and then reinforce those points through the use of the exhibit. While your adversary might try to object on "asked and answered" grounds, the objection is misplaced because you have never asked the question with the use of an exhibit. Use During Cross-Exam The exhibits offered and used during direct can be used with equal force on cross-examination. While many lawyers try to use the exhibits offered during the liability phase of a trial to attack an adverse liability position, these very exhibits can be used to strengthen the damages aspect of the case. Often causation is a major issue during a personal injury trial. Consider the same facts as above and assume that the injured girl suffered a herniated disc. Enlarged photos of the defendant's car depicting a smashed windshield have already been offered in evidence. Needless to say, during the defendant's direct case, the defendant's examining neurologist gave an opinion that the girl did not suffer a herniated disc. During the cross of the defendant's examining neurologist, the following questions can be asked: Q: Doctor, you believe you fairly and fully evaluated the facts before rendering your opinion, true? Q: Doctor, I want you to assume that (the girl) was a pedestrian crossing the street. Further assume that the defendant driver struck the girl. In fact on plaintiff's Exhibit 1, this exhibit, we have a photographic enlargement of the accident scene. As it shows right here the defendant made a left turn and struck my client. The "X" represents the point of impact. You do agree that being struck by a car can cause a herniated disc, true? A: Yes. But the impact wasn't severe enough. Q: At the time you examined my client and rendered your opinion you didn't have photos of the car, true? Q: At the time you rendered your opinion, you didn't even know these photos existed, true?

Q: You never asked for photos before offering your opinion, did you? Q: Doctor, I want you to assume that my client was struck and thrown with sufficient force to crack the windshield of the defendant's car. Please take a look with us at Exhibit 4, which shows the cracked windshield following impact. You never saw this photo, did you doctor? Q: You're not an engineer, are you doctor? Q: You have no idea how much force it would take to crack this specific type of windshield, true? Q: You have never done any crashworthiness studies on windshields, true? Q: In fact, nowhere in your report did you state that the girl was thrown with sufficient force to crack the windshield, true? Q: Without knowing these facts doctor, that's how you reached your full and fair opinion, true? Use During Summation The statement "a picture is worth a thousand words" is no more true than when working with an exhibit on summation. Putting an exhibit in front of the jury at this time will draw the jurors right into your argument. When working with a photograph such as the one discussed above of the scene of the auto accident, which has been marked by the witnesses during trial, the exhibit will literally tell the story. As you speak to the jury in summation, you can assume the role of narrator, using the exhibit and its markings to demonstrate the relative positions of movements of the pedestrian and the vehicle, all apparent to the jury as it looks at the marked photo. Indeed, this is the best technique at your disposal to "put the jury" at the scene of the accident, and have them deliberate about the case as if they had, in fact, actually witnessed the occurrence. Similarly, an exhibit in a medical malpractice case which reflects not just the anatomy, but also the sequence of events that caused the plaintiff's injuries and, just as importantly, a sequence of events that should have occurred but did not due to the defendants' malpractice, provides a clear road map for a verdict in your favor. Conclusion With the emergence of television, and then the Internet, today's typical juror is far more used to seeing a story than hearing one. Accordingly, your ability as a trial lawyer to show them, not just explain to them, that your case is a winner has never been more vital. Displaying that story through the use of courtroom exhibits, during all phases of the trial, stands as a crucial part of your ability to get successful results.

Ben Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf. Evan Torgan is a member of Torgan & Cooper. They can be reached at speak2ben@aol.com; and info@torgancooper.com. Richard Steigman, a partner at Gair, Gair, assisted in the preparation of this article.

With fewer trials, litigators work to stay sharp Lynne Marek / Staff reporter National Law Journal June 30, 2008 CHICAGO — In an era with fewer courtroom battles, civil litigation attorneys are turning to everything from teaming with criminal defense lawyers to engaging in more mock trials to improvising depositions to keep their trial skills sharp. The number of trials on civil cases completed in federal court last year was 29% lower at 5,600 trials than the 7,933 in 2000, according to statistics from the Administrative Office of the U.S. Courts. Criminal trials at the federal level have increased about 16% during the past seven years, according to the administration office. Recent nationwide trial statistics from the state courts are not available, according to the National Center for State Courts. Marketing tool Law firms rely on trial time experience not only to boost their courtroom skills and increase chances of legal victory, but also to market their litigators to clients. With more cases being settled through arbitration and mediation efforts, there's less opportunity for even senior attorneys to hone trial techniques. So they're finding ways outside the courtroom to stay up to speed. Stephanie Scharf, a litigator in New York-based Schoeman, Updike & Kaufman's Chicago office who has focused her practice on contract disputes, products liability and toxic torts, started teaming with her criminal defense lawyer husband Jeffry Mandell in state court to keep getting trial time. They decided her skills fit well for questioning the science expert witnesses and those that required a more delicate touch, she said. "I wanted to keep my trial skills fresh," said Scharf, whose most recent civil trial four years ago in an asbestos lawsuit settled just as the jury was being selected. "People are dying to get a trial." Another route to keeping courtroom skills up to snuff is participation in mock trials, which are used mainly to prepare for an upcoming trial and to foreshadow a trial outcome that may never occur, attorneys said. The mock trials are a staged courtroom simulation of a trial, often with hired jurors from outside the law firm. "I've had more mock trials than real trials in the last few years," said Matt Neumeier, an intellectual property litigator in Washington-based Howrey's Chicago office who said the risks for many clients of going to trial are just too high.

Clients previously preferred smaller prep sessions for cases, but today they're choosing mock trials twice as often, said trial consultant Douglas Green of Covington, La. "There seems to be stronger preference for having the lawyers get involved," Green said. While mock trials are expensive exercises paid for by the client in the interest of achieving a better outcome, they also end up providing a similarly pressure-filled forum for practicing courtroom technique, especially because the client is watching. "It's almost more intense because you're being videotaped, you're being scrutinized," said Bill Streff, an intellectual property litigator at Kirkland & Ellis in Chicago who has taken part of some of the mock trials. Some lawyers take depositions as an opportunity to buff their skills, treating people being deposed like witnesses and practicing the type of questioning that would happen during a trial. Jenner & Block's Chris Gair, a Chicago commercial litigator who also handles some white-collar criminal cases, said he sidesteps the usual "ask everything" technique in depositions and instead targets his interrogation as he would in court. "It has a beneficial effect because the other side sees that you're a serious cross-examiner and is also made to confront early on the flaws in their case," said Gair, who has had only one trial since coming to Jenner three years ago. A pro bono plus More senior lawyers are also turning to pro bono work as a way to keep their courtroom tools up to par, said Gair and Neumeier. Neumeier said he recently began representing the city of Chicago in its battle against some residents opposed to moving a children's museum into one of the city's parks. "You've got to do pro bono," he said. "That's really one of the things that's key to staying on top of it." Some law firms are focusing less on how to keep courtroom skills sharp during trial downtime, and more on how to adapt to the new environment. Steve Dillard, who leads the litigation team at Fulbright & Jaworski from its Houston office, said the firm has modified its training for lawyers to place more emphasis on advocacy skills used in mediation and arbitration. "You better have a skill set that accommodates whatever the arena is," Dillard said.

Beware Masters in E-Discovery William J. McLean The Recorder August 21, 2008 The principal purpose of this article is to warn practitioners about the hidden dangers of having cases assigned by superior court judges to appointed special masters. These masters are appointed frequently under California Code of Civil Procedure §639. The case study outlined below illustrates the danger and vagaries of these appointed private masters. To be sure, I have long been a proponent of alternative dispute resolution in all of its forms. I have not only been involved in innumerable mediations, arbitrations and sessions with special masters, but I also acted frequently as an arbitrator, mediator and special master. Even so, I have come to realize that the special procedures used to delegate decision-making responsibility to a private master can yield disastrous results. In the case outlined below, no amount of cajoling could convince the special master assigned to handle all discovery to take control of the case and stop the tactical flood of discovery motions. It is not uncommon for trial courts to impose limits on discovery. In one recent case, which resulted in a verdict of approximately $500 million, the trial judge limited the litigants to three discovery motions. And it is clear that certain discovery abuses warrant strong sanctions. However, in the current climate, with practitioners being inundated with articles in the media and judicial pronouncements regarding electronic discovery and the availability of sanctions for abuse -- and with only modest legislative or judicial attention being paid to balancing the punishment and the "crime" -- the underlying goal of conducting trials on the merits and obtaining justice within the legal system is being lost in a maze of tactical opportunism. Attention must be paid to the relative significance of the allegedly blameworthy conduct. If not, the tail will increasingly be found wagging the litigation dog. Discovery matters are frequently assigned to retired judges and/or experienced local trial attorneys and typically involve the payment of significant fees to these appointed special masters -- often in excess of $400 per hour. The authority for the assignment of controversies to a special master is found in California Code of Civil Procedure §§ 638 and 639. Section 638 allows the parties to stipulate that a special master may be appointed to "hear and determine any or all of the issues in an action" and "to ascertain any fact." More important, §639 authorizes the court to appoint a special master even if the parties do not consent. The burden and cost of electronic discovery may fall disproportionately on one of the parties in litigation, and this can lead to an unsatisfactory state of affairs in which litigation is determined not on the merits, but instead on rulings that arise out of discovery disputes. Unfortunately, any party with the financial ability to play the e-discovery card may be able to overwhelm its opponent with the discovery process to the point of either driving that opponent out of business or forcing it to forgo a valid claim for damages. Alternatively, it could leave a party without the financial ability to defend a case on the merits.

The assignment of discovery matters to special masters necessarily must be a central focus of any effort aimed at managing potential abuse and ensuring fairness. Section 639 was amended in 2004 to allow counsel to limit the number of hours that a master may charge for his or her services. This amendment did not apply at the time of the case described in this article. Canon 6 of the Code of Judicial Ethics requires that an appointed referee shall comply with requirements aimed at "promoting public confidence" in the judicial system. E-discovery, however, mainly promotes public fear. If a party is guilty of deleting or destroying files, whether innocently or not, the jury or other trier of fact is entitled to know this and consider its effect on the merits of the case. As it now stands, the thermonuclear weapon of the terminating sanction is an independent weapon of disposition, unrelated to the merits -- and certainly without the evidentiary controls of a motion for summary judgment. The case at hand, which grew out of events that began 10 years ago, is an example of a judicial system run amok. It all started in August 1998 when five employees resigned from their jobs at Synopsys, a company that designs computer chips and whose principal product was designed to search a customer's computer chips to determine the adequacy of electric conductivity. The former employees immediately formed a new corporation, Nassda, that would now compete with Synopsys. Within six months, this competing company had developed an operational beta program. Interestingly, Synopsys waited for a year before contesting the competing product development and its introduction into the marketplace even though Synopsys' CEO, in exit interviews with the five departing employees, had advised them not to compete. It was not until February 2000 that Synopsys filed a lawsuit in Santa Clara County Superior Court seeking damages for theft of trade secrets and unfair competition. Document production began in August 2001. A special master was then appointed -- at $500 per hour -- after the law and motion department judge apparently became concerned that there would be more discovery matters than he was willing or prepared to handle. Over the next 18 months, the case became embroiled in issues relating to electronic discovery. Synopsys claimed, among other things, that the five individual defendants had deleted data from personal and office computers. The defendants contended that they had been trying to develop a new product in a fast-moving, dynamic business atmosphere and that they were not concerned about preserving what they viewed as old or useless files in order to defend a lawsuit. The motions heard before the special master continued to accumulate. Ultimately, about 260 discovery motions were heard, including 14 nonterminating motions seeking money and evidentiary sanctions and 10 terminating sanction motions. By December 2002, it was apparent that the issue of whether trade secrets had been misappropriated would not determine the outcome of the case. Under the 21st century's new litigation dynamic, a party can prevail in a case not by winning on the merits but by law and motion findings of discovery abuse judged according to judicially created document preservation rules designed by courts for lawyers rather than for business people. Right and wrong under common law and statutory principles now were potentially subordinate to a finding that a party deleted e-mails.

During the discovery requested by the defendants and their counsel, various e-mails and documents were provided by Synopsys. E-mails written by engineers who worked there recited their fears that the product being developed by the former employees was going to be extremely successful. Interestingly, not one of the e-mails claimed that the individual defendants had done anything wrong. This evidence helped to make it clear that Synopsys was fully aware of the activities of the defendants and had taken no action to stop them. Indeed, by the time the lawsuit was filed, the defendants had captured a major market share from Synopsys. Discovery motions, meanwhile, continued to be filed. Huge amounts of attorneys' fees were being spent month after month as part of this exercise. No controls or limitations were placed on the discovery process. Despite warnings from counsel that he should get control of this case, the special master continued to allow and hear motions to compel and to impose sanctions. As many as six lawyers would attend the hearings, which would continue day after day, week after week, month after month. A pattern was developing. Defendants came to fear that yet another motion for terminating sanctions would be forthcoming if something was not done to try and remedy what the special master seemed to believe were the inadequacies of previously supplied answers to interrogatories. At one point, about $1 million was spent on preparing a fifth set of supplemental answers, with the knowledge that yet another a motion would almost certainly be forthcoming. Ultimately no further motion was filed -- at least as to those specific answers. However, by then another motion was pending, this one seeking terminating sanctions based on accusations about the handling of electronic information related to one defendant's independent development of his own product -- conduct that was described by the special master as "extracurricular." At that point, a perfect storm -- the confluence of a businessman's naive handling of electronic data with the torrent of judicial exposition on the sanction to be imposed on one found not to have conformed to its new requirements for record-keeping -- was about to descend upon this defendant. The special master granted the motion for the ultimate sanction and issued a 50-page order striking the defendant's answer. This order was followed immediately by a plaintiff's motion for entry of a default against the defendant for millions of dollars. The trial court then granted a stay pending disposition of the balance of the case. The special master's order was issued and the default entered without any evidentiary finding that the defendant had violated his employment agreement with Synopsys or had misappropriated any trade secrets. The dispositive issue was not one of right and wrong or guilt or innocence but whether or not a defendant had deleted electronic information that may or may not have even related to the merits of the case. Postscript: Ultimately the dispute between Synopsys and this group of former employees settled, but not before more than 20 additional discovery motions were filed and heard. The defendant corporation no longer exists, following its acquisition by Synopsys in May 2005. The product that Nassda developed is now owned by Synopsys. The case generated some $100 million worth of attorneys fees. Nine law firms were involved in the prosecution and defense

of the case. The special master received about $1 million. Pursuant to the terms of the settlement agreement, our client (one of the Nassda employees) paid nothing. Electronic discovery can and will continue to result in underlying legal issues being so obfuscated by the rhetoric relating to such discovery that justice in many cases may well never be served. The judicial temperament toward this developing area must be moderated. The tactics of well-financed parties who seek to take advantage of the current enthusiasm over deleted e-mail files and the availability of sanctions in the area of electronic information must be discouraged. There must be remedies for a party's refusal to comply reasonably with discovery. But special masters also must recognize the need to balance the effect of the chosen sanction with the effect of the lack of compliance on the merits, particularly with the prevalence of massive electronic discovery issues in even the most run-of-the-mill cases. William J. McLean is a senior member of Thoits, Love, Hershberger & McLean in Palo Alto. He has more than 40 years of litigation experience, stretching back to his days as a deputy district attorney in Alameda County. McLean served as one of two lead defense counsel in the case described in this article.

Gimme Some Truth Stephen Smith The Recorder 08-20-2008 It has become almost universally accepted that people will lie if enough pressure is applied to the right spot. It is also commonplace today for parties to use litigation as a means of doing business. These two truisms lead to a perception among the public — and even among many lawyers — that everyone involved in litigation lies all the time and with the express or implicit encouragement of their lawyers. The logic is simple: If a party to a dispute is going to litigate, not because it is truly right but because it believes it can obtain a business advantage, that party is also likely to apply whatever pressure is necessary to the witnesses it controls to ensure that those witnesses support its position. While the witnesses may not want to lie, they may feel they have no choice because their livelihoods may depend on it. Similarly, a lawyer wants to please her client in order to keep the client's business and, in turn, be recommended by that client to other new potential clients. So if the client wants to litigate to obtain a business advantage, the lawyer will feel pressured to do all that she can to help, even to the point of encouraging witnesses to lie. The argument makes perfect sense as far as it goes. But it does not go far enough. In high-stakes litigation, with competent counsel on both sides, the scenario in which everyone lies almost never happens. Indeed, it is often the case that no one lies. People with good lawyers do not lie, not because it is immoral but because their lawyers persuade them not to. Experienced litigators know that the fastest way to lose an entire case is to be caught lying even one time about anything. In fact, it is even more subtle than that. You lose not only if you are caught lying. You lose if a judge, jury or arbitrator thinks you might be lying while the other side is telling the truth. Cases in which truth does not matter are resolved before trial where truth and falsity are less relevant. If you have no case even if your facts are assumed true, your case is likely to be dismissed. It you have no case because there is no dispute in the facts, you will lose at summary judgment. Truth only matters when there are disputes about the facts. As a lawyer, you know that your witness's testimony on any factual issue will be believed only if your witness is generally credible. For that reason, if your witness is caught lying even one time — even about an immaterial issue — nothing he says will be believed. What may be surprising to new lawyers or nonlawyers is that people often fail to tell the truth by mistake. When a witness is trying to recall scores of different events and conversations, it is very easy for that person to unintentionally say something that is incorrect. But the decision maker may not know that the false statement was inadvertent or may not believe the claim that it was inadvertent. Perhaps that is because people often assume that witnesses are taught to lie by their lawyers.

It is for this very reason that good lawyers, when preparing a witness for a deposition or trial, will work hard to ensure that the witness makes no mistakes and always tells the truth about everything. This applies to even the smallest details that may never be asked about or seemingly have no relevance to the underlying case. This is also why lawyers tell witnesses to never guess, to not hesitate to say "I don't know" or "I don't recall," and to avoid words like "always" and "never." It is not that the lawyer wants the witness to hide the truth. Instead, the lawyer does not want the witness to say something that is incorrect by accident. While being deposed once, I was asked whether I had attended a particular status conference. I immediately said yes, not because I actually remembered attending the status conference but because I remembered that I was the only lawyer on that matter and naturally assumed that I had attended all of the status conferences in that case. I was wrong. I later discovered that I had not been at the status conference and had instead asked another lawyer who was not involved in the matter to go in my place because I had to be at another hearing in a different case at the same time. Luckily, the matter settled and I was never called to testify at trial. But this experience taught me how easy it is to testify falsely under oath by mistake. The need to ensure truth from your witness often requires that you show the witness documents (sometimes lots of documents) while preparing for his deposition. Many lawyers avoid doing this because they are afraid that, if the documents refresh the witnesses' recollections, the opposing side's counsel will discover what the lawyer believes to be key documents. But I would rather have my witness always come across as credible than keep my list of key documents a secret from the other side. If a witness testifies that he was shown no documents and then gives a lot of "I don't know" or "I don't recall" replies, it looks like the witness and the lawyer are hiding the truth. I made that mistake one time and will never make it again. I had a series of witnesses who had worked on a particular project. They had been taken off the project long before the dispute arose and had gone on to work on similar projects involving other parties. They had forgotten most of what they had done on the first project. I chose not to show those witnesses any documents before their depositions because I did not want my opposing counsel to know what I thought were the key documents. The witnesses then testified truthfully but repeatedly said that they did not recall various details. Although this was true, to a suspicious opposing counsel (and cynical court) it looked evasive. My opposing counsel was able to make me and my client look bad as a result even though there had been no lie. The point is that witness credibility requires more than simply telling the truth. It requires telling the whole truth even if it means taking the time to refresh your recollection. So unless my witnesses have unusually good memories, I now try to refresh their recollections with documents before they are deposed. Finally, a witness must be willing to admit bad facts. This is the area where lawyers and their clients most often go wrong. It amazes me how often witnesses who are otherwise entirely honest do not believe that refusing to concede a bad fact is dishonest. Good lawyers are required to spend large amounts of time persuading a witness to tell the truth when it means admitting to something bad. In my opinion, that is the most important thing your witness can do to obtain and maintain credibility in the eyes of a decision maker.

If a case is going to trial, it is often true that each side has done something wrong. Cases in which only one side has ever done anything wrong usually settle. Good lawyers realize that they are in trial only because something is not entirely clear. That is precisely when it is most important that your client be believed. A witness who can admit wrongdoing, which is contrary to that witness's best interest, is telling the truth. It shows that the witness will tell the truth even when strong pressure is being applied not to. I recently had a case involving a dispute that had arisen out of a multi-year relationship between the two parties, with many witnesses on both sides. Both sides did certain things wrong and the case was a close one. We could have won a lot or lost a lot or both sides could have been sent home with nothing. I spent most of my time impressing upon my witnesses the need to admit to the bad things they had done, no matter how much it hurt or embarrassed them to do so. The other side's witnesses fought against the bad things they had done, either evading the question or lying outright. I believe that is the primary — and perhaps only — reason we won. Yes, anyone is capable of lying. When the right pressure is applied, lying becomes the most likely, almost certain choice, in the course of litigation. That is where a lawyer can do the most good. If you can convince a witness under pressure to always tell the whole truth, even where it hurts, it establishes credibility. And that is often the difference between winning and losing. Stephen Smith, a partner at Greenberg Glusker in Century City, practices in the areas of entertainment, real estate, employment and general business litigation.

Making Misconduct Matter Chip Rice The Recorder 05-29-2008 Most laypeople think lawyers get away with murder, and it's often hard to disagree. Almost every litigator has war stories about opposing counsel who broke the rules and their own agreements or changed their story at the last minute. Unfortunately, it is usually impossible to obtain complete redress for such misconduct. Judges and arbitrators are reluctant to impose sanctions and, even if you obtain a monetary award, your motion will usually cost more than what you recover. It is even harder to persuade a judge or arbitrator that your adversaries' misconduct shows a fundamental lack of integrity that should undermine their entire credibility. Of course, one person's misconduct is another person's aggressive advocacy or unintentional mistake, so it is dangerous to generalize. I suspect that most judges feel that litigators complain about each other far too often, but most litigators that I know agree that attorney misconduct is a serious problem that wastes time and money and can cause serious injustice. In order to be an effective advocate for your client, you need to make good decisions about whether your opponent's misconduct really matters. And you need to recognize the obstacles to convincing your judge or arbitrator that such misconduct should make a difference in determining the ultimate result. Most importantly, you need to keep your eye on the prize: winning your case, not punishing your adversary. Limit your expectations If you want to be effective in seeking relief for misconduct by opposing counsel, start by trying not to let your personal feelings affect your judgment. When your adversary hits below the belt, you're no longer just an advocate. You become an aggrieved party and a witness. In a sense, you become your own client, and we all know the old line about how dangerous that is. Given this strain on your objectivity, you should definitely consult with your colleagues before taking any action so that you can get a better sense of how a judge or arbitrator will react. You may simply have to let some things go. What you see in the heat of litigation as intentional misconduct can often be explained as an unintentional mistake — whether or not it truly was. You may seem petty or even vindictive if you make a big deal about it. For example, if your opponent breaks an oral and relatively minor agreement about a deposition or other discovery, you will be justifiably irritated but you may not have an effective remedy. Under such circumstances, it would be futile — and probably counterproductive — to complain to the court. In fact, it is difficult to obtain relief for attorney misconduct except in the most egregious situations. Most judges and arbitrators seem to have a high tolerance for aggressive advocacy and a skeptical attitude toward counsel who cry foul. Confronted with squabbling counsel, they often seem like parents who care more about just getting the shouting to stop than about resolving the underlying argument. And counsel who believe that their adversary has

misbehaved also face the classic problem of anyone who has to make a complaint: Nobody likes a whiner. Judges' reluctance to punish attorney misconduct in the middle of a proceeding is not always a bad thing for the system as a whole. The point of the proceeding is to resolve the underlying dispute, and judges and arbitrators have to be careful about holding the sins of the attorney against the client. And, of course, litigators complain about each other constantly so courts are reluctant to encourage them by devoting too much time to such complaints. But the system would often work better if misconduct could be policed more effectively. Make your record Despite the obstacles, sometimes you just have to complain to your judge or arbitrator about the opposing counsel — even if you doubt your chances of winning any interim relief. But you should not complain before you have built a compelling record, usually with one or more letters to opposing counsel. The "letter for the record" is a neglected art. I have never seen it featured in law school or continuing legal education courses, but it is one of the more important and difficult things that we litigators draft. Such letters are one of the very few opportunities for us to actually create evidence. And since they are usually the only evidence in disputes involving attorney misconduct, you need to make sure that your side of the record is clear, complete and concise. Letters for the record must be crafted to work for several different audiences: the opposing counsel, the opposing party and, most importantly, the judge or arbitrator. Far too many litigators use these letters to opposing counsel to vent their frustration or anger with blustery bravado or snarky sarcasm. I get that out of my system by putting all of my nastiest lines in the first draft, but then try to make sure that stuff ends up on the cutting-room floor. A good letter for the record is calm and conciliatory — written more in sorrow than in anger. In essence, your letter is a first draft of your motion for relief and should stand by itself as a clear statement of all of the relevant facts and law. You want any neutral reader to wonder what the other side can possibly say in response. Changing stories A lawyer who changes stories is not always guilty of misconduct. After all, the law has a long tradition of allowing liberal amendment of pleadings. And it is difficult for the best of lawyers to get all of the details — or even the correct sequence of events — out of the clients and documents in time to meet filing deadlines. As a result, judges and arbitrators can't always punish attorneys — much less their clients — for changing their story as they go along. But changing stories can often be more than an innocent mistake. It can be a sign of the kind of opportunistic dishonesty that should be a red flag to the finder of fact. And it can waste huge amounts of time and money. When you encounter such dishonesty, you need to build a record as calmly and carefully as you would for more obvious misconduct. But you need to build your record against the opposing party, not just the opposing counsel, because it is the party's honesty that ultimately

matters most. If you are worried that the other side is going to change its story, you should try to depose the key opposing witnesses as soon and as thoroughly as possible. Make sure that you get them to commit to their story so that any change will taint their credibility and not just the credibility of their lawyer. The big picture The biggest challenge in dealing with misconduct by an adversary is keeping the right perspective. Our job as litigators is to maximize our client's results, not to teach anyone a lesson. But it is hard to keep that in mind when our adrenaline starts pumping over some dirty trick. Unethical conduct is a little like trash-talking on a basketball court. It can get you thinking about proving something to your opponent instead of just winning the game. The best approach is usually to rise above an adversary's misconduct as much as possible. Complain only rarely and briefly, and focus instead on presenting your own case in a forthright manner. The contrast with your opponent should increase your effectiveness in the long run. Fortunately, at least in my experience, misbehaving counsel usually lose their credibility and their cases eventually. When that happens, it never quite seems to me to be sufficient punishment, but it is ultimately the best way to make misconduct matter. Chip Rice, a partner at Shartsis Friese in San Francisco, specializes in securities and other complex litigation.

Making Magic in the Courtroom: Pulling Presentation Skills Out of a Hat Mark J. LeWinter Legal Intelligencer 06-13-2008 Can trial lawyers learn how to better connect with jurors by taking a few magic lessons? A trial lawyer for more than 25 years, I am also an amateur magician, a student of close-up magic. My experience in both has convinced me that while the magician and lawyer have different audiences, forums and goals, the presentation skill set and dynamics are remarkably similar. The purpose of this article is not to transform lawyers into magicians but to show them that they can learn much from the masters of magic, their performance skills and presentation excellence. The Message: KISS Revisited The primary focus of a trial lawyer should be on refining and simplifying the message. While Keep It Simple Stupid (KISS) is always emphasized in trial advocacy, world famous magician Michael Ammar uses and adapts the acronym to emphasize the importance of theme. He urges magicians to Keep It Slogan Simple. Widely acknowledged as one of the finest teachers of magic theory, Ammar instructs magicians to keep their presentations themed. Likewise, effective advocacy requires a trial lawyer to simplify his/her message to a "slogan memorable" message, which effectively serves as a paradigm, or filter through which the jury receives and evaluates evidence. In a recent workplace safety case, a general contactor was sued for its failure to ensure that OSHA-required fall protection devices were used. The defendant contended it was not liable, as the workers chose not to use the safety devices and should be responsible for their own actions. The theme successfully advanced by the plaintiff was that industry practice reveals many workers choose to work without safety devices unless required, as they believe they can work faster and more comfortably. The theme used to undermine the defense was that workers needed to be protected from themselves. Crafting the Message: One Sentence Magician and screenwriter Pete McCabe, in his book "Scripting Magic," notes the importance of theme when scripting and referencing the methods of famous playwrights, including Arthur Miller. When Miller wrote a play, he first decided what the play was really about, the true essence. He would not begin to write until he could simplify the play to a single sentence. After he figured out that sentence, he would tape it to his typewriter and make certain every line of dialogue, blocking, set description, props, everything would build on/communicate that essence. For truly effective advocacy, trial lawyers should follow the same practice. The trial should be built on and resonate a central simple theme. Just as Miller would never begin writing a play until he could reduce it to one sentence, a trial lawyer should not begin trial preparation without doing the same. The Messenger: Managing Attention

World-renowned Spanish magician Juan Tamariz has authored one of the shortest yet most informative books on presentation skills. In "The Five Points of Magic" he covers the importance of mastering the use of eyes, voice, body, hands and feet. While Tamariz's intended audience is magicians, every trial lawyer can learn from the simplicity of the book and its applicability in the courtroom. Eye Contact If a magician does not make eye contact, the spectator feels unconnected. The magician loses the ability and opportunity to direct the spectator's attention to where he wants it. In his book, Tamariz suggests that magicians visualize invisible threads with each spectator. The trial lawyer, when facing a jury, should likewise imagine there are threads connecting his eyes to the eyes of every juror. Whenever the threads are broken, the lawyer should make an effort to reconnect them, making eye contact with each juror. How this connection is made is crucial. When a lawyer scans the jury box without focusing on a specific juror, he does not connect with all jurors. He connects with none. The better approach is to develop skills in quality eye contact with only one juror at a time for intervals of less than 10 seconds. Practice speaking and making eye contact with one juror. During that time, articulate one complete thought, then pause briefly and move to the next juror. In selecting the next juror, it is helpful to move to the other end of the box, crisscrossing to add movement and anticipation. Practice shifting eye contact after completing short statements or thoughts. Do not linger on any one juror, since keeping eye contact for more than 10 seconds could result in making him/her uncomfortable. Establishing eye contact for only a couple of seconds could be interpreted as insincere and superficial. If you make steady, meaningful eye contact for the right amount of time, all members of the jury will feel connected with you, and whether they agree or not, they will at least feel your sincerity and believe you are addressing them. Media and communication consultants can help train lawyers who wish to develop these skills. Directing Attention In the courtroom, the lawyer should seek to control the jury's attention and focus. In "Magic and Showmanship" by T. Nelson Downs, one of the most famous manipulative magicians, we learn that the source of information is what we want the audience to watch. The center of interest is, however, what the audience wants to watch. In a perfect world the two coincide. But often, this doesn't happen during the course of a trial. The lawyer must appreciate the distinction between the two and, when appropriate, use techniques to control the source of information. Given the circumstances of any trial or strategy, the lawyer may or may not want the jury focus to be the witness, the lawyer speaking or the exhibit being displayed. In the courtroom, if we display two sources of information simultaneously, neither can make its point properly and both together will receive less attention than either alone. If, for example, the lawyer or a witness is speaking at the same time the jurors are focused on a PowerPoint slide or an exhibit, there will be two sources of information with the center of interest likely to be and remain the visual. When the lawyer or witness seeks to make a point and wants to be the sole focus of the jury, something must be done to subordinate the visual source of information so that the speaker will

have the jury's attention and become the sole source of information. Depending on the circumstances and geography of the particular courtroom, there are many techniques or methods to accomplish this. However, two basic means are the use of one's voice and eyes. Simply by pausing, a jury's attention will return to the speaker until he or she continues. Another method is through the use of eye contact. John Ramsay, a famous magician taught, "If you want the audience to look at you, look at them. If you want them to look at something, look at it yourself." The spectator will look where the magician is looking. The trial lawyer can likewise assist in directing the jury's attention. Voice, Body, Hands and Feet The skilled magician's "effect" or "illusion" is the result of much thought, scripting, timing and practice. Similarly, the trial lawyer's desired "effect" requires that careful attention be paid to not only what is being, said but how it is being said. Tamariz stresses the importance of the performer being aware of his voice, volume, tone, inflection and how it adds to the desired effect. The trial lawyer should do the same. During any given communication the actual words account for only 7 percent of the communication taking place, while 38 percent is attributed to tone, inflection and volume. The remaining 55 percent is from body language, eye contact and facial expression. Devoting significant time to what amounts to 93 percent of the communication dynamic is critical in effective advocacy. Involving the Jury Skilled close-up magicians are especially adept at keeping a spectator or small audience involved in the performance. In a courtroom, the lawyer should also keep the jury involved. Be aware of the manner in which the lawyer references the jury. If for example, a physician is on the stand and the lawyer seeks to have the physician explain a medical term to the jury, the lawyer often will ask, "Doctor, would you please explain to the jury . . . ." This phrasing, "explain to the jury," could be viewed by many jurors as condescending, as it infers that the court and the opposing lawyers are much smarter than the jury. A better approach is one which makes the jury feel as though they are part of the process along with the lawyer. By changing the phrasing to, "Doctor, will you please explain to us . . . ." the jury becomes involved in the process along with the lawyer, opposing counsel and the court. Misdirection Metaphor Lawyers often seek metaphors during summation so that a jury will better understand the facts/theory being advanced. A skilled magician will create an effect by employing various types of misdirection, which essentially focuses the audience's attention where he wants it and away from where he doesn't. The misdirection metaphor can successfully be used by the trial lawyer during closing to uncover the weaknesses in the adversary's case by explaining that he/she has attempted (like a magician) to create courtroom illusions, but has failed, thereby debunking the illusion and revealing the methods used by the lawyer to create it. No Intent to Deceive While it would be extremely foolish and futile to attempt to deceive or fool a jury, and no sane or competent lawyer would do so, the skills and magic theory which make magic highly

entertaining and absorbing can be successfully transferred to the courtroom to enhance the advocate's impact and rapport with jurors. Mark J. LeWinter is a trial lawyer with more than 25 years experience in handling catastrophic injury cases. He is also an amateur magician and a volunteer at the Children’s Hospital of Philadelphia where he has performed for oncology patients over the past 15 years.

Scoping the juror's head: What's going on in there? Robert D. Duboff and Nancy L. Neufer The National Law Journal February 04, 2008 Winning a jury trial is not about which side has the most rational argument or the better logical presentation. Jurors expect flash and drama. But sizzle alone will not win trials, either. The challenge for the successful litigator is to meet jurors' expectations for compelling presentations while at the same time connecting with jurors in a meaningful way — one that is persuasive and not just entertaining. This requires an understanding of how the modern juror thinks in the courtroom. Trial consultants have been studying jurors for more than 30 years. In the 1970s, the legal process was relatively unknown to the typical juror, beyond the Perry Mason focus on criminal trials with clear-cut outcomes. Presentations and evidence were definitely low tech, and jurors expected to hear more than see. Case presentations were straightforward, keyed to logic and legal standards. Back then, lawyers hired consultants to help weed out jurors biased against their clients. We've got jurors today bringing in high expectations shaped by L.A. Law, CSI, Law & Order and years of media coverage of legal issues. They expect a multimedia show with lawyer and witness performances like they have seen on television, with key messages contained in concise, eloquently delivered sound bites. Based on what they think they know from watching these shows, jurors assume that they understand legal standards and feel familiar with the process. They feel experienced at figuring out what really happened and who should be liable. Lawyers have to be more facile than ever and accept that modern jurors are not awed by the process. While expectations about the quality of the lawyers' presentation skills have gone up, juror acceptance of the testimony of the lawyers' clients (particularly major corporate defendants) has declined. Harris Interactive Inc. has asked about the trustworthiness of various institutions for years, and its latest sampling shows that just 25% of respondents in the United States think that the pharmaceutical industry, for example, is trustworthy — a major decline from years past. This means that lawyers in civil suits often start with an uneven playing field; a corporate litigant cannot assume that testimony by its witnesses will be accepted at face value. Consequently, litigation consultants spend the bulk of their time deciding how best to communicate to jurors rather than how to deselect the ones with biases. Effective communication requires that the case be framed and positioned well to both fit the evidence and reflect an understanding of jurors' preconceptions. Unlike the producers of CSI and Law & Order, who need to appeal to the widest mass audiences, the lawyer has to remember that his target audience is a very specific six or eight or 12 people. They all likely bring similar expectations about performance level, but may have radically different perspectives on the substance involved. And even if the attorney uses the best selection process, most jurors likely start with a bias against the corporate defense side. Suspension of disbelief

The easiest example of the communication challenge at hand is the O.J. Simpson murder case, in which that specific jury panel was not swayed by better presentations or even better rhyming. Most of that panel started with a preconception that the police will lie if necessary to convict the person they want to be guilty. Once it was clear in the jurors' minds that the police were lying, the case was over, because a majority of that panel put no weight on anything else the prosecution presented. Timothy Egan, "The Simpson Case: The Jury; With Spotlight Shifted to Them, Some Simpson Jurors Talk Freely," N.Y. Times, Oct. 5, 1995. Nowadays, if jurors see any evidence that a pharmaceutical company, for example, has suppressed information about dangers from a drug, they will assume the company is still doing so in court. So lawyers must pressure-test every argument and piece of evidence to ensure that, if they can get the jurors to suspend their disbelief, the jurors will trust their side enough to consider the evidence. Can each key argument or purported fact be proven to a group of people who distrust the side trying to make that point? Thus, the first key to understanding and persuading modern jurors is to uncover their preconceptions (about presentation, which is fairly universal, and about the substance, which is fairly diffuse) and work to enhance some and/or overcome others. Pretrial research can assess the underlying attitudes of likely jurors and learn how these beliefs relate to the case facts: specifically, skeptical jurors identified during pretrial testing, isolated and used as sounding boards to test each argument for credibility. This type of research ultimately can lead to a well-developed juror selection strategy but, more importantly, can illuminate the predispositions of certain jurors that should be incorporated into the way the evidence is presented at trial. For example, experience with research in accounting firm liability cases teaches that the vast majority of jurors expect auditors to look for fraud in the course of their everyday work. It therefore becomes important for a defendant accounting firm to clearly differentiate among the types of services it offers and point out that there are differences between a routine audit and a fraud audit — the latter being specifically designed to uncover fraud, while the former is not. Careful use of this language by witnesses and attorneys alike helps to address jurors' pre-existing beliefs while demonstrating that the accountants properly did the job they were hired to do. Beyond trying to identify and strike potential jurors with biases against a party (a difficult task for a corporate defendant, since there are so many of them), and work to overcome jurors' predispositions in the presentation of the case, it is important for lawyers to heed the observation of Aristotle. In his Rhetoric, he posited that there are three requirements for persuasive presentations: • Credibility. • Rational appeal. • Emotional connection. See Christoper Carey, Rhetorical Means of Persuasion From Persuasion: Greek Rhetoric in Action 25-45 (Ian Worthington ed., 1994).

Typically, lawyers focus all their attention on the rational plane. This is completely understandable, yet can become a major hurdle to winning cases. Too often, lawyers assume that their clients have credibility and believe in the logic of their experts. Of course, it isn't what the lawyers or their clients believe that is important; it's what the jurors think — and feel. The power of emotion Jurors almost never put the same stock in expert testimony that lawyers do. Experts can help to explain complex issues, but it is the rare case in which expert testimony is decisive. Jurors are much more likely to decide which side should win a case using a blend of logic and emotion. A purely logic-driven presentation is seldom enough to prevail. For example, Simpson's prosecutors thought their DNA evidence was pretty powerful, but the defense pointed out that, by the prosecutors' math, there were several, if not many, other people in Los Angeles besides Simpson who would fit the DNA profile (even though they would be only a few in a million). In medical cases, jurors can be mesmerized by the fact that those taking a particular medicine were, say, three times more likely than others to contract a disease, even though the increased incidence of anyone taking the medicine getting the disease was fewer than 100 out of 10,000. The point is that numbers are usually construed to support one's emotional preconceptions about the case rather than from the perspective of the more logical mathematician. The second lesson, then, is that the attorney must make sure that he or she fully understands what jurors take away from the facts presented. New techniques can help here to uncover what jurors garner from evidence and testimony. For years, jury simulations have included electronic dials that record second-by-second reactions to measure how positively or negatively each juror evaluates what was being said by a given side. Of course, this requires active volition by the subjects. Now, there are brain-monitoring tools that can automatically record attention levels and reactions for anyone willing to be hooked up. However, even if the jurors are willing to accept what the defense (or plaintiff) presents, and the rational appeals are described in a compelling way, most cases turn on the emotional connections. Data suggest that about half of the world approaches decisions from a thinking perspective, but half (including slightly more women than men) approach them from a feeling perspective. David Keirsey & Marilyn Bates, Please Understand Me: Character & Temperament Types (1978). The former are receptive to rules and criteria (such as the judge's charge) for making decisions; the latter decide more on the basis of values and gut feelings. Experience suggests that those in the latter category often end up being more committed to their position during deliberations than those relying on cold logic for their position on the case. These emotional jurors are a critical target audience, since their strong commitment can make them influential in the jury room. Chip Heath & Dan Heath, Made to Stick: Why Some Ideas Survive and Others Die (2006). Overall credibility comes from presenting the facts while developing a rapport with jurors by addressing their emotional concerns. One way to do this is to explain events from an individual human's point of view. In a case in which corporate greed is alleged, it can be critical for corporate witnesses to acknowledge that their organization is motivated by profits, while

emphasizing that this does not mean that profits were more important than anything else in the crucible of decisions. For example: Q: "Are you and your firm motivated by making money?" A: "Yes, absolutely, but it does me no good to make money in the short run if it's going to hurt my reputation (or my company's reputation) in the long run. Of course, I'm in business to make money for my company and my family over the long haul. But, to do that, we have to do a good job and not cut corners." Sympathy for Goliath As any good case presentation is developed, the lawyers must humanize the actors and draw analogies that can help jurors understand why events unfolded the way they did. Helping jurors to understand the motives of the key players decreases the likelihood that they will fill in the gaps in their understanding with their own dangerous ideas. Litigators must be prepared to answer the question of why key decisions were made by showing jurors the human face behind the decision and demonstrating that the process followed was consistent with other established and familiar activities consistent with good values. The bottom line is that the best lawyering occurs when the lawyers make an emotional connection to key jurors. This may be easy for an injured individual plaintiff David against Goliath. It is naturally harder for big corporate defendants. When defending Goliaths, emotional connections can best be accomplished through a compelling witness who can embody the client — by testifying and being present in court every day. Absent an attractive client representative, the lawyers need to ensure that jurors understand the human elements of the company and ramifications on these individuals (e.g., the grandparents who own the stock in their 401(k), or the hardworking employees, for example). A third angle is to focus on the human drama. In accounting cases, for example, there often are no individual shareholders and no particularly articulate or likable fact witnesses (who typically are too traumatized by the accusations to be effective anyway). Even in such instances, a case can be presented with a human component by dramatizing the decisions that had to be made in real time with incomplete information and without the luxury of videotape replay. If the witness can describe a typical human situation, the jury may come to accept that a well-meaning professional made a bad, but understandable, mistake in judgment. Once the mistake is viewed as understandable, it is less likely to be perceived as an act of negligence or fraud. There is one other important issue for lawyers to remember. While the events behind the controversy occurred in the past, the jurors always approach the trial from today's perspective. Trials are classic Monday-morning-quarterback situations. It's almost impossible at this stage to convince people that invading Iraq made sense because Saddam Hussein was hiding weapons, but a majority of Congress was convinced of that in 2002. The business analogy might be Enron Corp. — trying to convince a jury that intelligent bankers didn't know that Enron was a house of cards is well-nigh impossible. What can lawyers do? The best attempt to transpose the jury back through a "time capsule" that might include a multimedia show of what was happening then, complete with a soundtrack of

the music then popular. (Of course, lawyers have to use ingenuity to get this evidence admitted and may have to use indirect means, such as asking all witnesses about contemporary events that may be anchors to their memories of the times.) The point is to get the jurors to be open to and connect with the case — and the way to do that is by accepting that words and logic are rarely, if ever, enough to really get one's client's case through to a jury. While much is changing with jurors, their expectations and the level of trust they bring into the box, the attorney's essential task remains the same: to connect with jurors on a human level. Robert D. Duboff (Robert.Duboff@HawkPartners.com) and Nancy L. Neufer (Nancy.Neufer@HawkPartners.com) are fact-based litigation consultants in the Cambridge, Mass., office of HawkPartners.

Trial Advocacy Ben Rubinowitz and Evan Torgan New York Law Journal 08-29-2007 To properly prepare for and conduct jury selection, a trial lawyer must know how to deal with two important issues: time constraints and weaknesses in his case. Although these issues might seem to be separate and distinct, in reality, they go hand in hand. Since courts have decided to limit the amount of time allotted to each attorney for jury selection, careful thought must be given as to how to best make use of the time allowed. On the day you first met your client and heard his story, you probably made an initial determination regarding the strengths and weaknesses of the case. Your initial "gut" reaction to the case is crucial to your preparation for jury selection. It was at that moment in time that you were closest to seeing the case the way the jury might see it. At that point in time, you were less of an advocate than you are at the moment you step into the courtroom. Clearly, after forming that initial impression or "gut" reaction, you have spent countless hours focusing on the strengths of your case and dealing with its weaknesses. You probably have already argued about the merits of the case during settlement discussions. The problem, as it relates to jury selection, is that you are an advocate and your tunnel vision might prevent you from dealing with those dicey issues that will be at the forefront of the jurors minds. Identify the Problem Areas One of the best ways to deal with difficult issues is to make a written list of the potential problem areas which you perceive at the time you first get the case. Go back to that list - back to your initial "gut" reaction and see if it still applies. Rather than asking lawyers in your office what they think, speak with the types of people who might be on the jury panel. Speak with everyone you can from lawyers outside your firm to teachers, kids and people in the community in which you are about to try the case.1 Lay out the facts as objectively as possible. Ask purely open-ended questions designed to get them to talk. Leading questions, or questions that suggest the answer or limit the universe of potential answers, do little to help you in this regard. Consider the following questions, asked in leading form: Q: You don't think that's such a bad problem, do you? or Q: Don't you agree I can overcome that problem? Obviously, the "yes" or "no" response you receive to these questions does little to assist your jury selection.

The better approach is to ask questions like these: Q: What do you think of the case? Q: What do you see as the weakness in the case? Q: Why do you think I might lose this case? The answers to these questions may provide valuable insight and should be used by you to reaffirm your initial "gut" reaction and devise ways to address these problems with the jury. Once you have your list of weaknesses, you must be mindful of the time constraints imposed by the court. Here, you must prioritize your weaknesses and deal with those that you can in the limited amount of time permitted by the court. You must decide how you want the jurors to perceive the weaknesses. If possible, try to turn a weakness into a strength. If that is not possible, you still must address the issue both to maintain your credibility and begin to desensitize the jury to this particular problem. The worst thing you can do, however, is to ignore the problem and hope it goes away. It will not. This do-nothing tactic will permit your adversary to destroy your credibility by making a short, simple statement at a strategic point in time: What counsel failed to tell you is that his client is and has been a drug addict for the last 20 years. Needless to say, you might never recover from the irreparable harm done by your failure to address the difficult issue. The Technique The "confessional approach"2 to jury selection allows you to meet the tough issues head-on. At times, it even allows you to turn a perceived weakness into a strength. To successfully master this technique, you must be willing to bring out the "bad" facts as soon as possible, thereby confessing your weakness. Imagine the scenario in which your client in a medical negligence case was a drug addict for the last 20 years before his death. Your position, however, is that his death was caused by certain failures on the part of the treating physician in administering medications, not by the use of illicit drugs. Here, the appropriate trial technique, based on the confessional approach, might be to make a statement followed by a series of both leading and open-ended questions. It is important that you address your weakness first, presenting your side of the issue, before allowing your adversary to bring it up in the fashion which he chooses: Ladies and Gentlemen, I'll tell you right now: Mr. Smith used and abused drugs for more than 15 years. In fact, he used and abused drugs for close to 20 years. We want you to know that fact right away because we know that you might have a strong reaction to that issue. But we also want you to know that there were no secrets about his drug use. He fully informed his

doctors. They knew this. Our position is that he never should have been given certain medications by his doctor in light of his known drug use. Our position is that the doctor was careless and negligent in administering this medication and that this departure from accepted practice resulted in his death. Now, address the tough issue head on and find out the jurors' true feelings. Explore your fears and concerns based on your own "gut" reactions to the case. Use both leading and open-ended questions to flesh out the issue. Q: Are you willing to listen to a case like this knowing it involves a person who used and abused drugs? Q: How do you feel about that? Q: Are you open to the possibility that a person who used and abused drugs might not be responsible for his own death? Q: Why is that? Even if you cannot put a positive spin on a bad fact, you still must address the issue. Rather than calling a bad fact a "weakness," suggesting you have a weak case, refer to it as a concern of yours. This way you maintain your credibility by letting jurors know that you are not holding back and can be trusted as a forthright, honest advocate: Ladies and Gentlemen, I'll tell you right now our client is an alcoholic. He was drunk at the time of the accident. Our position is that he did not cause the accident and was injured through no fault of his own. We want you to know that fact before we do anything else in this trial. Q: Are you the kind of person who is going to say: I'm not interested in anything else you have to say - I've made up my mind - or are you the kind of person who wants to know more? If the juror has already made up his mind, you might be able to have the juror excused for cause, or at worst, excuse him by use of a peremptory challenge. On the other hand, if the juror wants to know more, follow up the last question with one that can be used on summation. As the next question try: Q: Why do you want to know more? or Q: Tell us exactly why you need more information. Often, a weakness might not jump out at you like the illustrations above. At times, the weakness in the case might present as a much more delicate and sensitive issue. Consider, for example, a subtle yet potentially powerful issue involving racial prejudice. While your case might be strong on both liability and damage issues if viewed in a prejudice-free vacuum, the world does not work that way. Your initial "gut" reaction involving racial concerns might be something you need to address during selection.

Assume, for example, you represent an African-American. You know the makeup of the jury pool in the county in which the case will be tried is anything but African-American. Your fear is that the jury will award less of a damage award based solely on race. Here, you do not want to address the issue head-on for fear of receiving a dishonest answer: Q: Are you prejudiced against African-Americans? Needless to say, it is a stretch to ask individual jurors to admit to bigotry in front of a large group of people. Simply put, it is not going to happen. The better approach is to ask questions designed to alert jurors to your concerns without seeking to embarrass them in front of others: Q: When evaluating a person's pain and suffering, would it matter to you if the injured person was rich or poor? Q: Donald Trump or a homeless person? Q: Would it matter to you if the injured person was a doctor or a janitor who was injured and you had to evaluate their pain and suffering? Q: Would it matter to you if my client was black or white? Q: Why not? Another, more straight-forward approach might be: Q: Do you feel that race should be considered when placing a value on a person's injuries? Q: How do you feel about that? Often, a summary-type question can deal with the issue effectively: Q: Do you believe that a person should be entitled to a fair shake, regardless of race, religion, creed or color? Q: Why? While you may never know if a potential juror has a hidden agenda or truly is a racist by forcing a juror to answer the "why" question in his own words, you will be afforded the opportunity to evaluate the honesty of the answer based on your own common sense and good judgment. The juror's demeanor, ability to maintain eye contact and content of the response might speak volumes on this issue. Conclusion

Since courts have severely limited our ability to conduct a lengthy jury selection, care must be taken to address the most significant issues with the jurors. Often, you are better off dealing with your fears and concerns while saving your strengths for the trial in chief. Ben Rubinowitz is a partner at Gair, Gair, Conason, Steigman & Mackauf. Evan Torgan is a member of Torgan & Cooper. They can be reached at speak2ben@aol.com; and info@torgancooper.com. Richard Steigman, a partner at Gair, Gair, assisted in the preparation of this article. Endnotes: 1. Lisa Blue & Robert B. Hirshhorn, "Blue's Guide to Jury Selection §24" (2004 West). 2. Patrick L. McCloskey & Ronald L. Schoenberg, "Criminal Law Deskbook §14" (1984 Matthew Bender).

Direct Directions Chip Rice The Recorder 08-10-2007 Most lawyers find it hard to get excited about preparing for a direct examination of a friendly witness. It's not nearly as much fun as cross-examination or oral argument or any other task that allows us to be the center of attention. But direct examination is often the key to winning a trial or arbitration because it is usually the initial — and often the primary — way that the judge, jury or arbitrator learns the most important facts about the case at hand. And it can immunize the witness and your case against the potential damage from cross-examination. Direct examination is difficult to do well because it requires careful preparation, lots of practice and the willingness and ability to recede into the background. Once the examination begins, the fact-finder wants to hear from the witness, and the lawyer should seem to be only a transparent conduit for the questions in the fact-finder's own mind. No matter how well you prepare, you will defeat your own goals if you look like you are controlling everything or otherwise draw attention to yourself. The less the fact-finder notices you, the better. At that point, it's not about you. It's all about the witness. You normally want the fact-finder to like, believe and respect any witness that you call for direct examination (except, of course, when you call a hostile witness for adverse questioning). To achieve that, you want your questioning to establish the honesty and integrity of the witness and to elicit his or her most attractive and impressive qualities. Try to ask questions that allow your witness to shine by displaying their intelligence, passion and sense of responsibility about their work. If the witness tends to be a little stiff, try to bring out his sense of humor or concern for others. Ultimately, the most effective and most interesting direct examination is one in which the attorney and witness show that they like and respect each other. Use your preparation time to learn about what your witness cares about. Then show your respect for the witness by actually listening when she is answering your questions during the trial. Before you even begin meeting with the witness, figure out what facts must be established or corroborated and what opposing points should be refuted when the witness takes the stand. Then organize these outlined points into a clear and coherent narrative. Try to structure your examination in chronological order to make it easier for the fact-finder to follow. At the same time, decide what documentary evidence to use and when to show each piece to the witness. Begin and end with your best stuff. That's because the fact-finder (particularly jurors) will usually pay the most attention to the beginning and end of any presentation. Start by establishing the credibility of the witness and his place in the grand scheme of your case. End by repeating your most important points – but do it quickly so you don't bore or offend the judge, jury or arbitrator.

Once you have decided what you need to cover, you should spend as much time with the witness as possible. Begin by reviewing your outline so that the witness understands the big picture and how the different pieces fit together. If he understands the scope, order and pace of the examination, he will find it easier to focus on each question as it comes instead of trying to make all of his important points at the first opportunity. You will defeat your own goals if you look like you are controlling everything or otherwise draw attention to yourself. Resist the urge to turn your pre-examination outline into an actual list of written questions. You and the witness will be less flexible and alert if you learn questions and answers by rote. Instead, it is better to spend your time prior to trial simply asking and answering questions about the areas of your outline until both you and the witness get a feel for how best to cover the necessary information. This kind of role-playing will help your client develop a sense of familiarity with the facts and the process and a sense of self-confidence about both the underlying incidents and her ability as a witness. And it will help you learn what pushes your witness' buttons so that you know what questions to ask and how to ask them in order to elicit all of the legal points as well as all of the witness' best personal features. Leading questions — those that suggest a particular answer — are generally prohibited during direct examination. Even more importantly, most leading questions elicit nothing more than a "yes" or "no" answer, which can make the witness sound like your puppet and the exact opposite of the image that you want the witness to project. Avoid questions that begin with words like "did," "didn't," "were," "weren't," "should" or "shouldn't." Instead, use words such as "who," "what," "where," "when" and "how," with an occasional "describe" or "explain" thrown in. You can always fall back on "what happened next" although doing so misses the opportunity to ask a more focused question. Most judges will allow leading questions to establish preliminary matters or undisputed facts and may even appreciate the time savings that such questions create. Many judges will also allow leading questions until opposing counsel objects. But try to police yourself, especially when you get to the heart of your witness' testimony. Of course, some witnesses, no matter how much you have practiced with them, will still need some guidance on the stand because of nerves, a failing memory or some other problem. The easiest way to give them a lifeline is to structure your examination around key documents. Doing so will help the witness keep everything in chronological order or whatever other order you had planned. In addition, you can point the witness to specific provisions or passages in a document to remind him of particular points before asking your questions. Be careful of overdoing this, however, because it may undercut the credibility of the witness. Your direct examination won't matter much if the witness is cut to shreds during cross-examination. So prepare your witness — both substantively and emotionally — as much as possible. Start by making sure that you and your witnesses have read their depositions and that your direct examination is consistent with all of their answers. Nothing deflates a case faster

than letting your opposing counsel begin her cross-examination by quoting deposition passages that contradict the witness' more recent sworn testimony. But don't stop there. Think hard about how you would attack this particular witness if you were on the other side. Do some pretrial role-playing so that the witness can get used to facing hostile fire. Warn your witness that, at some point in his cross-examination he will probably be surprised or flustered by a question (often backed with a document) that you have not covered in your preparation session. Make sure that witnesses understand they can hurt their credibility by acting defensively or evasively. Tell them to keep answering each question as directly and honestly as possible. Remind your witnesses that you will have a chance to address any problems on re-direct so they should be patient on cross-examination and not try to fight the questions. No one in the courtroom will pay attention to your witness if you act bored by your own direct examination. Use your tone of voice and body language to convey that you regard what the witness is saying as very important. You also have to listen carefully to what the witness actually says to ensure that each answer is complete and persuasive and then follow up if necessary. In addition, you don't want to miss any particularly vivid or persuasive language that the witness uses because repeating that language in your subsequent questions will heighten its power and your continuity. Use moments of transition to highlight key points. After telling the witness (and, of course, everyone else who is listening) that you are about to finish with Point A, ask a few more questions to elicit a repetition of the key facts for Point A. Then take a pause and announce where you are going next. Finally, try to use demonstrative exhibits or key pieces of evidence to add variety and emphasis to the examination. For witnesses who are natural teachers, find ways to get them to stand up and go to the blackboard (or, more commonly today, a whiteboard) to diagram what they are saying. Direct examination is often more difficult and more important than cross-examination so make sure that you and your witnesses are well prepared. And try not to be discouraged by the unfortunate fact that, if you really do your job well, you may not be noticed much at all. Chip Rice, a partner at Shartsis Friese in San Francisco who specializes in securities and other complex litigation, is a regular contributor to Litigation.

High-Tech Storytelling David Cheung and Brent Larlee New Jersey Law Journal 07-06-2007 Two men hover in a small conference room staring at a white board that, at this late hour, is not as white as it is multicolored, the result of diagrams, lines and a mash of words that have been drawn, erased and drawn again. They sift through multiple versions of storyboards, step-by-step illustrations used to help them plan a set of graphics to deliver their client's message to a discerning audience. Their challenge: Craft a message and presentation that are informative and persuasive without becoming overwhelming — or worse, conveying a sense of overt salesmanship. It's a scene that could be taking place in any advertising agency or marketing firm along New York's Madison Avenue, where the art of persuasion has become a hard science. But these are not advertising executives preparing to hawk the latest sneaker or Vodka brand in a commercial. They are litigation consultants, tasked with helping their client, a national law firm, fend off charges that the law firm's client infringed on another company's patented technology. To do so successfully, the consultants will need to help the defense attorneys persuade the judge and jury that the plaintiff's patented technology bears little resemblance to the defendant's technology. Frequently coming from backgrounds more closely associated with research labs than creative war rooms, litigation consultants must create a strategy that can demonstrate their client's product and underlying technology but at the same time engage the audience. The presentation, which can include multimedia tools with interactive capabilities, will help the defense attorneys position the issues — and the case — in their favor. Strategy, multimedia and positioning are buzzwords and tactics that once were reserved for advertising professionals, but now are indispensable techniques in the courtroom and throughout the litigation lifestyle. Welcome to the new look of litigation consulting. The need for, and use of, persuasive techniques has been a staple of litigation for years. The application of these techniques traditionally has fallen on the shoulders of the trial attorneys who lead the case, while the role of litigation consultants has been, for the most part, to do whatever is necessary to help the trial attorney apply those techniques. For litigation consultants, that has meant a focus on "hard" skills, such as operating equipment like monitors and presentation software, managing documents and providing information-technology support (data backup, computer forensics, etc.). In the last few years, however, the litigation landscape has seen a proliferation of consultants who can provide "soft" skills, including media planning, visual strategy, messaging and positioning — skills more associated with advertising, marketing and business-development professionals. For many litigation-consulting veterans, this evolution is palpable but not surprising. The environment has changed in terms of how judges and jurors receive — and expect to receive — their information. The subject matter in question in a lot of trials is more complex. Jurors are more media-savvy. Litigators need to raise the bar on their presentation skills.

Because communication in the courtroom is becoming more sophisticated, it makes sense that the legal consulting industry is seeing parallels with advertising and marketing. With the advent of advanced Internet applications (blogs, mobile news updates, instant messaging) and the proliferation of communications outlets in general (niche cable networks, satellite radio, etc.), members of the public have more control over the information that reaches them on a day-to-day basis. They also have access to more resources to seek out specific information that they want. This trend has wrought havoc on advertising traditionalists who reminisce about how easy it was to influence the masses. "Post a picture of our product on a billboard, say that we're No. 1," they would say, "and watch the sales pour in." Today, those advertisers are forced to rethink how the average consumer operates. For litigation consultants, the task is to rethink how the average juror collects and interprets information. Today's jurors, when placed in a situation where they must make decisions based on information presented to them, may feel empowered to think and make assumptions based on their personal knowledge of that subject. And how is that personal knowledge formed? No doubt by Web sites covering just about any topic imaginable. Just about anyone can feel like an industry expert with just a few clicks of the mouse. Advances in Internet and multimedia technologies not only change the amount of information people can access, they change the way that communicators — whether in the advertising community or in the courtroom — must present information. Consumers and jurors are accustomed to receiving information through flashy Web sites, mobile phones and innovative graphics on television. Even calling this new breed of audience the "MTV generation" begins to sound quaint. The "Internet generation" is more apt. Consider that for advertisers a decade ago, effective communication or persuasion could be accomplished through a 30-second message on television, or even a simple, static advertisement in a magazine. Today, advertisers are adapting innovative technologies to reach consumers where they are more receptive. Trial attorneys are dealing with much more sophisticated and complex subject matter than ever before. Litigation consultants have to be able to put together a communications strategy that gets their clients' messages across, using the media with which jurors, like consumers, are comfortable. The diversification of message-delivery tactics has filtered over to litigation consulting; a change in how jurors take in information corresponds with a decrease in the attention span of the average juror. Combine this with the increasing number of media technologies available to present the information and the picture becomes even more complex. Although terms like "campaign" or "media" rarely appeared in conversations about litigation consulting in the past, those terms are more prevalent today. The result is visual presentation strategies that give litigators more ways to support their case themes. In a patent case, a consulting team might develop a three-dimensional animation to explain a technical process. But in addition, the team might prepare a timeline and a self-playing tutorial on CD-ROM, with interactive features combined with animated sequences so that the client can pace its presentation. Increasingly, different media types are needed to really tell a story. In his book A Whole New Mind: Why Right-Brainers Will Rule the Future, author Daniel Pink envisions a new, outsourced, automated economic age, in which individuals and organizations

will be successful only if they embrace the ability to think conceptually. In short, Pink believes that left-brained people and companies (analytical, structured) will play supporting roles to more progressive right-brainers (creative, entrepreneurial) who can generate ideas. More car designers and fewer assembly line carmakers, for instance. One of the key attributes in this new economic age is the ability to put information in context — to tell stories. It's a concept that the advertising world has adopted first. The television commercial that makes claims about the greatness of a product has been replaced by stories about how consumers' lives were improved by that product or service. The iconic Marlboro Man on billboards has been replaced by mini-dramas on television and YouTube, like the one that shows a busy father bonding with his young son while fixing the plumbing. It's a strong message, promoting a well-known brand, wrapped into a neat, 30-second story. Telling stories has really become the way to sell things, whether it's an idea, a position or a product. This is where the litigation-consulting field has changed the most. Strip away the fancy animations and graphics and it's just the attorney telling a story to a judge or juror. That attorney needs to have the resources to help him or her tell that story. Ultimately, that means the system needs litigation consultants and communications strategists who can tell stories, not with words on paper but with graphics and animation. Today's consultants must apply their high-concept right brain to a project and ask new questions. How does this one presentation graphic fit in with the whole communications strategy? Will their work help the jury understand the story they are trying to tell, the point they are trying to make? Will they get it? Is the world of courtroom presentation reaching a point where high-concept, creative thinking trumps the fundamentals of litigation? Hardly. The idea is not that stories and high-tech graphics alone will persuade juries. But litigators and their firms should be prepared to embrace professionals with the high-concept skills that have helped advertisers succeed in their craft. The legal world is not going to go from litigation consultants who look like stereotypical tech nerds to artsy types overnight. But in the courtroom or war rooms — or at an attorney's litigation consulting partner — there will be more individuals who have legal or technical backgrounds who are also comfortable talking about media mix, visual treatments or other advertising/marketing concepts. And if this doesn't happen at the individual level, then it definitely will at the team or organizational level. It's really an environment that's evolving where industry consultants are learning a lot along the way. Cheung is an account executive in the Philadelphia office of Animation Technologies Inc., a national litigation consulting firm. Larlee is executive vice president and co-founder of the firm, and is based in Boston.