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The Litigation Consulting Report

Boston Bomber Death Penalty - Mitigating vs. Aggravating Factors

Posted by Laurie Kuslansky on Wed, Apr 8, 2015 @ 04:46 PM

 

Dzhokhar-Tsarnaev-mitigating-aggravating-death-penalty-jury-consultant-sandwhichby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

It must be so hard to defend someone as unpopular as Dzhokhar Tsarnaev and plead for his life, while he does everything to make it harder.  How does one lessen his involvement when he carried out so many explicit and intentional acts and has been so consistent: remorseless.

He shed no tears for the 3 civilians and 1 M.I.T. police officer killed, the 264 people injured, or the countless others traumatized.  Instead, he went and got a sandwich. 

When his brother was killed, did he turn himself in and say, “I didn’t want to do it; I’m so sorry; my brother made me.”? No.

He is now 22, but at the time, Dzhokhar was a 19 year-old American college student at U. Mass, Dartmouth with the right to drive and be judged as an adult.  The “My-brother-made-me-do-it” defense went nowhere.  His counsel wanted him to be perceived as an impressionable adolescent misled by his older brother, but has he done anything to reinforce anything his defenders tried to assert?  No.

The defense conceded his actions, but tried to pass the buck to the alleged influence of the defendant’s deceased older brother. One problem:  Dzhokhar never blinked while he was involved or since.

In the sentencing phase, what could possibly matter? It is hard enough to overcome one count that carries the death penalty, let alone 17.

Although the assessment of mitigating factors v. aggravating circumstances is not simply a quantitative matter, but a qualitative one, no doubt the jurors will take an inventory, likely to result in something along these lines:

mitigating-vs-aggravating-circumstances-jury-consulting

Is a contemptuous defendant with 5 aggravators per mitigating factor enough to convince even one juror to withhold the death penalty? Is the mother of two – not one – terrorists sympathetic? Unlikely, but time will tell.   

The jurors are de facto death-penalty qualified, lest it be discovered later that this was a falsehood.  What may save the defendant isn’t the defense, but other factors (e.g., not giving him the satisfaction of becoming a martyr by dying for his so-called cause, latent rejection of the death penalty in the largely Catholic jury pool, or jurors holding themselves above his conduct).  If he is spared, it will be because of who the jurors are and what they believe, not because of anything the defense does or fails to do.

He certainly can’t complain about the quality of his public defender, Judy Clare Clarke, who defended other notorious defendants and overcame the death penalty for child-killer, Susan Smith. 

His public defender may deserve sympathy.  Dzhokhar Tsarnaev?

Other articles related to high-profile defendants, criminal trials and jury consultants from A2L Consulting include:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Juries, Voir Dire, Jury Selection, Criminal, White Collar, Boston

How PowerPoint Failures in Demonstrative Evidence Can Sink a Case

Posted by Ryan Flax on Mon, Feb 2, 2015 @ 04:28 PM

 

demonstrative-evidence-powerpoint-warning-cautionby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

We strongly advocate that counsel must use a visual presentation to support his or her oral argument at trial (and anywhere they need to be persuasive). This most commonly happens during opening statements and closing arguments at trial and the dominant format for such presentations is PowerPoint – a very good tool. However, like cutting your own hair or doing your own dental work, we must again caution you that you must really know what you’re doing because your case may depend on it.

On January 22, 2015, the Supreme Court of the State of Washington published its opinion in State v. Walker, overturning the State Prosecutor’s conviction of an accused murderer because the attorney went too far with his demonstrative evidence in closing. A murderer has potentially been freed because, in the Court’s view, counsel was inflammatory in his presentation and “appealed to passion and prejudice” of the jury.

Certainly as zealous advocates we do want to appeal to the passion of jurors on some level. We need their emotions to be in sync with the law and evidence, but what might be too much so as to prejudice the proceedings? Let’s explore the Washington Supreme Court’s opinion to see.

What Did the Prosecutor Do?

defendant-walker-guilty-of-premeditated-murderI’ll preface these notes with the fact that based on the Court’s findings of facts, the evidence was pretty overwhelming against the defendant, and he appeared to be a cold-blooded killer. The prosecution proved its case.

During closing arguments the prosecutor used a PowerPoint presentation of approximately 250 slides – that’s a lot of slides. Over 100 of those 250 were titled “DEFENDANT WALKER GUILTY OF PREMEDITATED MURDER.” They also included a slide with the defendant’s face and the text “GUILTY BEYOND A REASONABLE DOUBT” superimposed thereover in bright red letters. As you see in the slides reproduced above, the prosecutor argued (visually at least) that the defendant was guilty because he spent the stolen money on toys, safes, and a lobster dinner.

The prosecutor showed slides composed of trial exhibits – photographs – with the prosecutions take on the significance. For example, one slide showed a table littered with stolen money – real evidence – captioned with “MONEY IS MORE IMPORTANT THAN HUMAN LIFE,” which was not a statement in evidence. Another showed a photograph of the murder victim in life, captioned with “DEFENDANT’S GREED AND CALLOUS DISREGARD FOR HUMAN LIFE.”

During the prosecution’s closing, defense counsel objected unsuccessfully to the prosecution’s discussion of premeditaiton and a slide analogizing it to stopping at a railroad crossing, but never objected to the PowerPoint slides mentioned above.

Why Did the Court Find It Wrong?

rule-404-demonstrative-evidence-powerpoint-warning-problemsThe Court indicated that “[t]he primary question in th[e] case [was] whether those [accomplice to first degree murder, first degree assault, first degree robbery, solicitation, and conspiracy] convictions must be reversed in light of the PowerPoint presentation the prosecuting attorney used during closing argument.”

The Court held that “prosecutorial misconduct violated Walker’s right to a fair trial” because of the prosecution’s PowerPoint presentation. Why?

The real reason is that a prosecutor represents the state and the judiciary and must be impartial so as to act only in the interest of justice. According to Washington, “advocacy has its limits, and a prosecutor has the duty to ‘subdue courtroom zeal,’ not add to it.”

The Court professed to have had “no difficulty” holding that the prosecutor’s PowerPoint presentation was “egregious misconduct.” Why?

The Court felt that the prosecutor had presented “altered versions of admitted evidence” and “derogatory depictions of the defendant.” [recall, this defendant is pretty much, absolutely a murderer – his also-guilty girlfriend testified to it]. The Court took offense to the inflammatory nature of the PowerPoint slides – the superimposing of text and captions that suggested the defendant “should be convicted because he is a callous and greedy person who spent the robbery proceeds on video games and lobster.” The Court indicated that the presentation “plainly juxtaposed photographs of the victim with photographs of [the defendant] and his family, some altered with racially inflammatory text.” Finally, the prosecution’s slides “repeatedly and emphatically expressed a personal opinion on [the defendant’s] guilt.”

The Court found all this a “clear effort[] to distract the jury from its proper function as a rational decision-maker.” It held that “[t]he voluminous number of slides depicting statements of the prosecutor’s believe as to defendant’s guilt . . . is presumptively prejudicial and may in fact be difficult to overcome, even with an instruction.”

mock jury webinar a2l kuslansky

Finally, the Court suggested that there is a “serious need to curb abuses of such visual presentations” and encouraged “trial court judges to intervene and to preview such slides before they are shown to a jury.”

How to Navigate the Minefield.

This all seem a bit crazy to me, but I do get it from the perspective of the State needing to exert control over itself as it’s represented in the judicial system. State prosecutors are held to a higher standard than other lawyers in the courtroom. I suspect that had the defense used a similar counter-point PowerPoint presentation in its own closing arguments, it would not have been misconduct or even close thereto. But, the State is supposed to be more even-handed and tempered.

I’m fairly certain that the prosecutor made his own PowerPoint presentation and had absolutely no guidance from anyone that knew how such a presentation should be made – this is fairly clear from the examples of slides above. First, regardless of how long the closing argument was, there is simply no reason that there should have been 250 slides. I cannot imagine what all these slides presented and how each one could be needed to tell the simple story of how very bad this bad guy was. So, the fact that there were 100 or so slides that expressed the prosecution’s flaming belief that the defendant was guilty of premeditated murder is, to say the least, excessive.

If I could get into my time machine and travel back in time to help this prosecutor, my advice would have been to tighten up the presentation as a whole, to use more well-crafted and less over-the-top graphics, and to make his hard-hitting, prosecutorial-belief slides just those at the very beginning and very end of the presentation (which would reduce the “inflammatory” slides from 100 to maybe 4 or 5). I can imagine prosecution counsel pounding on the lectern and shouting during closing arguments, too – my advice: don’t (the facts are on his side). I would advise counsel to have a tight and reasonable story, to develop well-composed slides that fit with this story and show the evidence, and to summarize the evidence only at the beginning and end with the thematic, “Defendant is Guilty – Defendant is a Callous Murderer – Defendant Put No Value A Real Man’s Life” slide. I suspect with this advice, the murder stays in prison and the prosecution is saved embarrassment.

In non-criminal cases and cases outside of Washington, I suspect this case and the sentiment of Washington’s Supreme Court are mostly irrelevant. It is our goal as litigators to zealously advocate for our clients and when we don’t work for the state, we probably have a lot more leeway to do so. It is imperative that we use strong and reasonable stories, themes, and well-crafted, supporting visuals to evoke sympathetic and empathetic emotions in jurors. As a professional litigation consultant, I help identify ways to do this that are not so heavy handed as Washington’s state attorneys’ tactics.

Other articles and resources related to problems with trial graphics, litigation graphics and demonstrative evidence from A2L Consulting:

litigation consulting graphics jury trial technology

Tags: Trial Graphics, Litigation Graphics, Litigation Consulting, Litigation Technology, Demonstrative Evidence, Trial Technology, Advocacy Graphics, PowerPoint, Criminal

Boston, a Bomb of a Trial

Posted by Laurie Kuslansky on Thu, Jan 15, 2015 @ 11:46 AM

 

boston-bomber-dzhokhar-tsarnaev-trialby Laurie R. Kuslansky, Ph.D.
Managing Director, Jury & Trial Consulting
A2L Consulting

Want a change of venue? Think again. Judge O’Toole and the U.S. Court of Appeals for the First Circuit turned down the defense’s attempts to change the venue. Even though Boston is where the horrifying Boston Marathon Bombing happened, that is where the jury pool will come from to judge the surviving Tsarnaev brother, Dzhokhar.

Will there be enough jurors? Here, 1200 prospective jurors will complete a jury questionnaire of 100 questions to seat a jury of 12 jurors plus 6 alternates who, if left, deliberate as full jurors in federal court.

It is disconcerting that there are only 6 alternates for such a long trial, in flu season and the Boston winter, when jurors often get sick and/or drop out for other reasons in lengthy trials. It will likely take weeks to review the questionnaire responses and voir dire the pool. Then there’s the matter of how long the trial is expected to take (months), which is likely to take many out of consideration as they simply cannot afford that much time away from their lives. Those who are willing to serve that long are not likely pro-defense, but rather, folks who want to send a message. And last, but not least, they must be willing to consider the death penalty, if (read “when”) the defendant loses. It will be interesting to learn what, if any reason, prospective jurors give to show that they are neutral and have not pre-judged the case, especially since the community was on lockdown and glued to the news at the time for their own safety. It would seem that the better part of the U.S. – and certainly New England – has nothing but contempt for the defendant.

boston-bomber-dzhokhar-tsarnaev-trial-jury-trialDefense blunder #1:  It is presumed that the defense will try to assert that the younger Tsarnaev brother was misled by his older brother, Tamerlan, but one does not sport a goatee to appear young and powerless, nor show up in court with the hair of a madman to garner sympathy to defeat the death penalty. What a difference 21 months make.

With the stakes so high, the venue so personally affected, emotions so deep, eyewitness and video evidence so strongly favoring the prosecution, there is no room for the defense to lose an inch, but an inch is already lost. Add to that the apparent limit in control the defense counsel seems to have over its client.  

This is not a case of winning, but of who will lose the most.

Other articles related to jury selection, voir dire and jury questionaires on A2L Consulting's site:

A2L Consulting Voir Dire Consultants Handbook

Tags: Jury Questionnaire, Trial Consultants, Jury Consultants, Voir Dire, Jury Selection, Criminal, White Collar, Boston

How NOT to Go to Court: Handling High Profile Clients

Posted by Laurie Kuslansky on Wed, Jul 10, 2013 @ 08:20 AM


amanda bynes courtroom attireby Laurie Kuslansky, Ph.D.
Expert Jury Consultant

On July 9th, 2013, Manhattan Criminal Court was graced with the presence of Amanda Bynes, dressed for a costume party at the gym, but not for court (photo on right).

Recently, a television celebrity showed up for her videotaped deposition in a tight black top, complete with finger loops – all caught on tape.

In yet another example of bad behavior, a high-powered foreign bank owner did not own a white button-down shirt and never wore ties, so he had none for court.

It is not uncommon for high-profile clients to make up their own rules, or better yet – break them, at their own peril.  They are typically difficult to control because they are used to expecting special treatment. 

The problem is that judges don’t view them the same way as starry-eyed fans or star-struck followers.  Instead, such demeanor sends the wrong message to the wrong audience, one of disrespect, bordering on contempt.

What to do?

If you have a celebrity client, you know how challenging it can be to be the agent of “bad news,” i.e., telling them they can’t do whatever they please when it comes to court and litigation.

Tell the ABA you love this Litigation Blog so it appears in the ABA Blawg 100 for 2014

What may seem obvious to you is not necessarily obvious to them, so it is worth considering the following:

  1. Ask in advance what they intend to wear to a deposition, hearing or trial.  Assume nothing and don’t rely on vague descriptions (“Something appropriate.”)  You may have something very different in mind as to what is appropriate.
     
  2. If there will be media, consider how they will arrive to court.  Will it help or hurt their case to show up in a flashy limo with an entourage?
     
  3. What impression are you and they trying to make?  What steps will you both take to achieve that? 

Unless you are trying to establish that your client is, in fact, in the circus, avoid creating one when it comes to litigation settings.


Have a look at these articles related to criminal cases, courtroom decorum and celebrity clients.

complex civil litigation graphics free ebook guide download

Tags: Trial Consultants, Jury Consulting, Trial Consulting, Jury Consultants, Judges, Criminal, White Collar, Witness Preparation

George Zimmerman Trial: Use of Animation Evidence and Objections

Posted by Ryan Flax on Mon, Jul 8, 2013 @ 02:53 PM


george zimmerman animation courtroom trialby Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting

It has just been reported that prosecution counsel in the criminal trial against George Zimmerman is objecting to the defense’s use of a computer animation depicting the scene of the fatal confrontation between Zimmerman and Trayvon Martin. It appears the defense wants to give the jurors some perspective on the scene and, perhaps, show why Zimmerman was justified in doing what he did.

Prosecutors object that the animation does not show the weapon Zimmerman used to kill Martin and “only approximates” the two men’s positions based on witness accounts. All things being equal, the prosecution bears some burden to keep this demonstrative evidence out. It will depend on how the defense actually intends to use the aid.

In Florida, it is within the discretion of the court to allow or disallow demonstrative aids in the courtroom. Chamberlain v. State, 881 So 2d 1087, 1102 (Fla. 2004). The Chamberlain court laid out the following considerations for the propriety of allowing demonstrative evidence: (1) potential to mislead or confuse the jury; (2) whether the demonstrative aid is to be admitted into evidence; (3) whether the proponent of the demonstrative aid will assert that it represents fact evidence; and (4) whether the witness advancing the demonstrative aid will be cross-examined on it. Taking these issues into consideration, the Florida Supreme Court ruled that it was OK to allow a demonstrative aid that “was similar” to an actual murder weapon, although larger and different in other ways, even though the actual murder weapon was also admitted as actual evidence.

See Articles & Example Animations

However, the Chamberlain court also stated,

Demonstrative evidence is admissible only when it is relevant to the issues in the case. . . . [I]t is essential, in every case where demonstrative evidence is offered, that the object or thing offered for the jury to see be first shown to be the object in issue and that it is in substantially the same condition as at the pertinent time, or that it is such a reasonably exact reproduction or replica of the object involved that when viewed by the jury it causes them to see substantially the same object as the original.

florida computer animation trial litigationSo, the Zimmerman court has a choice to make.  If the defense animation is not misleading, won’t be admitted into the record, is not asserted to show actual evidence, and will be advanced by a witness subject to cross-examination, it seems right to allow it.  On the other hand, if the animation is not a close enough reproduction of the actual scene of the confrontation and killing, the Court has all the reason it needs to disallow it.

This situation is a good opportunity for a reflective moment for all litigators seeking to make and use demonstrative evidence.  Demonstrative evidence, like any evidence, must be relevant and the proponent of demonstrative evidence can try to have the evidence admitted into the record or can choose to use the evidence as merely a prop.

If the evidence is marked as a full exhibit the jury may refer to the evidence during deliberations and in most jurisdictions the jury may examine the evidence during deliberations.  If the evidence is not marked as a full exhibit, the jury cannot do these things.  Whether or not a demonstrative exhibit is to be admitted on the record, there are some rules you should know when considering using any demonstrative exhibit (we’ll look at the federal rules for the sake of simplicity, but each state has its own).

Fed. R. Evid. 611(a) allows demonstrative exhibits, generally.  Fed. R. Evid. 403 is the gatekeeper rule for trial evidence. Do not make demonstrative exhibits prejudicial or confusing, but tailor them to be truthful and persuasive.  Fed. R. Evid. 901(a) requires that you back up your demonstrative exhibits with actual evidence; they cannot merely be your fantasy of best-case-scenario evidence. 

Courts have traditionally allowed summaries of extensive evidence, e.g., a chart or table reviewing a bunch of expert opinions, but now according to Fed. R. Evid. 1006 demonstrative evidence is treated similarly and is typically admissible as evidence with testimony.

Let’s stay tuned and see how it goes in the Zimmerman trial.

 

Related articles you may find valuable about computer animation, demonstrative evidence or the George Zimmerman trial:


complex civil litigation graphics free ebook guide download

Tags: Trial Graphics, Litigation Graphics, Trial Presentation, Courtroom Presentations, Demonstrative Evidence, Animation, Criminal, George Zimmerman

4 Reasons Televised Criminal Trials Get So Much Attention

Posted by Laurie Kuslansky on Thu, May 16, 2013 @ 07:00 AM


jodi arias choke hold travis alexanderby Laurie Kuslansky, Ph.D.

Although pop culture cases that capture the nation’s attention are hardly typical of trials today, many viewers believe they are and they tend to set unrealistic expectations for those who may be called for jury duty or to serve on a jury. They may expect more experts, more drama, and more interest than the reality at most trials. This underscores the need for clear presentations, litigation graphics, and experts who are aware of the added burden publicized trials may place on them.

There are various high-profile cases in the public’s awareness. One such current case is the Jodi Arias case in Phoenix, in which a young woman was just convicted of the murder of her ex-boyfriend and found to be eligible for the death penalty.

Why is there so much interest in such cases? Why the national obsession? There are several reasons. Here are some of them.

1. Because we expect evil to really look evil

jodi arias pretty charles manson mugshot what evil looks like a2l consulting

2. They strike fear in our hearts and often have an odd fascination, since – but for the outcome – the situation was so normal. 

As in the Arias case: Man meets woman. Man dates woman. Man and woman have sex. Woman becomes possessive and jealous, so man wants out, but likes the sex. Man and woman break up, make up, break up, but still have sex. Woman becomes a booty call until man reaches breaking point and wants out for good. If every man who had a booty call were slaughtered for it not being true love, how many would be left?

What should have happened next? Nothing. They go their separate ways. 

What happened here, however, was a train off the tracks: Woman stalked man, repeatedly slashed his tires, hacked his Facebook, hacked his emails, checked his messages, spied on him from outside his home hiding in the bushes, sneaked into his home and stayed there, slept under his Christmas tree, recorded their phone calls, stole an engagement ring from his home, sent threatening emails to him and his ex-girlfriend, had sex with him, then, when her last-ditch effort to manipulate him back through sex didn’t work anymore, she slaughtered him.

This case raises questions that could affect almost anyone because it is terrifying to the core to know that someone who appears normal could be so crazy and violent. The same held true in the cases of the Menendez brothers and O.J. Simpson. 

3. Often, we believe the tragic outcome could and should have been prevented, but it wasn’t.

The only way this tragedy could have happened was for every red flag to be ignored and unheeded, and it was. It is unfathomable that such extreme events went unchecked, and it is hard to believe that it could only have been stopped with the benefit of hindsight:

Jodi’s parents observed extreme and abnormal behaviors first-hand for years (extreme, unexplained mood swings, hitting her mother, moving out as a minor, claiming things that never happened), so they felt they needed to get her psychological help – but they didn’t.

They got multiple calls in the middle of the night from her friends urging them to get her psychological help because she was acting abnormally – but they didn’t.

Her father assumed she had bipolar disorder and told her to get help – but she didn’t. 

Friends of Travis Alexander, the murdered man, were alarmed that Jodi was stalking him. Her eyes were creepy. She was distant. Her soul was empty. She was eavesdropping. He made excuses for her. He was emotionally blackmailed that she’d kill herself if he left her. They warned him that she was trouble and to get out – but he didn’t.

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4. We are often dumbfounded by the conviction, frequency and speed with which someone can lie and with the narcissism that they exhibit.

Jodi’s behavior defies our wildest expectations of human behavior. It does not fit with anything in our own normal experience, conscience, or imagination. Simply put, how and how much she lied is unbelievable itself. 

Instead of showing remorse, she reveled in herself and enjoyed all the attention, utterly detached from reality. She was often cocky and pleased with herself, with an answer for everything. She sought media attention before trial. When asked to explain why she smiled for her mug shot, she replied, “There`s no reason to be upset over this in my mind. Everything -- I have faith and in the end everything will be made known, everything will come out and in the meantime, smile and say ‘cheese.’ ”

She wrote a manifesto, sold sketches from the courtroom, tweeted during trial through others, planned to be free and famous, sniped on the stand and displayed delight with herself when sparring on cross examination, always couched herself as the victim or hero, gave an interview within an hour of being convicted, but apologized to no one and shed tears for no one but herself.

What is the impact of these cases?

It is important to know whether prospective jurors have viewed them, how consistently, and what impressions they formed from them. If you don’t have many experts in your case, will they think you didn’t make your case? If they ignored a lot of evidence, will they need summary graphics or tutorial graphics to track the evidence better? Do they tend to watch courtroom or police dramas? Do they think that is how it actually works?

In these days of televised courtroom dramas playing out publicly, it is important to know what’s in prospective jurors’ minds when you face them at trial and to do what is needed to satisfy them if they end up on your jury.

Other articles and resources related jury consulting, experts and courtroom presentations on A2L Consulting's site:

using litigation graphics courtroom to persuade trial graphics a2l consulting

 

 

Tags: Jury Consulting, Courtroom Presentations, Juries, Jury Consultants, Psychology, Expert Witness, Criminal, White Collar

Litigator & Litigation Consultant Value Added: A "Simple" Final Product

Posted by Ryan Flax on Fri, Nov 16, 2012 @ 10:00 AM

foley lardner tom carlucci a2l litigation consultants Thomas F. Carlucci
Partner
Foley & Lardner LLP
 foley lardner john turlais a2l litigation consultants John E. Turlais
Senior Counsel
Foley & Lardner LLP
 a2l consulting ryan flax litigation consultant Ryan H. Flax
(Former) Managing Director, Litigation Consulting
A2L Consulting 

There is a certain irony in providing high-level litigation and litigation consulting services. Namely, if we, as litigators and litigation consultants, do our jobs correctly, the end product – whether it be a presentation to a jury or to the government – should be simple. 
not easy button simplify complex litigation consultantsFor this reason, it can be difficult for some clients to appreciate the value of the process required to create that end product, even when that end product serves the ultimate goal of a trial win or a favorable settlement. A simple end product, however, most often signifies a deliberate, detailed, and thoughtful process.

Foley & Lardner LLP and A2L Consulting recently collaborated on a project relating to an elaborate fraud carried out through numerous, complex transactions. The fraud was executed over many years and related to dozens of contracts and hundreds of thousands of pages of documents. Complicating matters further, the case proceeded on parallel litigation tracks, with civil claims being pursued by numerous sophisticated entities, while the U.S. Government investigated criminal charges. From all this, a presentation had to be prepared boiling down the complexities and complications to a simple, straight-forward, and persuasive position.

Crafting a winning litigation presentation, including the accompanying litigation graphics, can be analogized to writing a song. Take most anything the Beatles ever wrote, for example. Once you have heard the song, it seems simple – so simple, in fact, that you might proclaim: “I could do that, I could write a song.” Until you actually try doing it.

The Beatles created world-changing art, and they made it look easy. What winning litigation teams and litigation consultants strive to do is similar in that, to achieve their goals, they must take complex fact patterns and legal positions and make them both easy to understand and persuasive. They must make the case look easy.

Simplify the complex is the first rule in developing both a litigation narrative and the litigation graphics that elucidate it. Unlike the trial attorneys or line prosecutors, a jury has not “lived” with a case for many years. Nor, for that matter, do government attorneys high in the chain-of-command necessarily have the same deep understanding of the facts and intricacies of a case as do their investigators or line prosecutors. Dumping all of the facts on the table in the hope that the audience will latch on to a winning argument almost invariably leads to another result – confusion and, ultimately, failure. The key is to present the evidence and information in a manner that can be easily digested by those who, based on limited time and/or limited exposure to the case, want and need to see the big picture.

Making the complex simple, however, takes time, creativity, and hard work. As Blaise Pascal (French mathematician, physicist, inventor, writer, and philosopher) famously said, “I would have written a shorter letter, but I ran out of time.” (often also-attributed to Mark Twain and Abraham Lincoln). But it is through this process that value is generated.

making complex simple trial presentation consultants litigationIdeally, and when a litigation team employs a litigation consulting and litigation graphics firm, the process involves a bit of a witches’ brew. A lot of facts, ideas, theories, and storylines get thrown into the pot, and the attorneys, litigation consultants, and litigation artists must work together to explore and decide what facts fit and which story lines are most persuasive.  The process is rarely straightforward and smooth, and it involves occasionally wandering down dead ends to find the right path. But this process is necessary to chip away at marginal, unnecessary, and/or potentially distracting and detracting portions of the case.

The team of litigators must deal with thousands of discrete and related facts, sometimes millions of pages of documents, and, often, multiple interested parties forwarding their own versions of the case to the same target audiences. The litigators must figure out how to refine the mountains of information into a neat and compact outline of evidence that tells a compelling narrative. The litigation consultants and graphics firm must then take the evidence that the attorneys believe most important, understand the narrative forwarded by the trial team, and push the attorneys to further hone and sharpen the presentation of their case. The graphics must be developed with equal precision so that a narrative emerges from the slides that not only emphasizes the key evidence, but also provides simple and persuasive themes.

simplicity is power a2l litigation consultantsAt the end of the process, the team is left with a streamlined and seemingly simple presentation that the audience can readily understand and, more importantly, be compelled to agree with on some level.This streamlined and simple end-product, however, is often all the client sees as well. The work that goes on behind the scenes – the effort and expense needed to develop the themes, to frame the evidence, and to refine the message to its basic core – constitutes the majority of the work that goes into the case. When done correctly, it should look easy, as if anyone could have done it. Most importantly, clients should recognize that this is precisely the value added by their litigators and litigation consultants.

In simplicity, there is power. Give the right people the power to create simplicity, and you, as client, will get astonishing results (that look easy).
 

Click here to Download a Free Litigation E-Book

Tags: Trial Consultants, Trial Presentation, Jury Consulting, Litigation Consulting, Demonstrative Evidence, Litigation Management, Litigation Support, Articles, Storytelling, Management, Criminal, White Collar, In-House Counsel

4 Litigation Graphics Tactics When the USA is a Client or a Foe

Posted by Ken Lopez on Tue, Jul 3, 2012 @ 07:58 AM


The us government or doj as a litigantby Kenneth J. Lopez, J.D.
CEO & Founder
A2L Consulting

I created my first trial exhibit while working for the U.S. government in 1992 as a clerk in the Eastern District of Virginia. Two assistant U.S. attorneys were having a hard time explaining why a witness was able to see the defendant in a drug bust in spite of a four-foot wall. I created a simple map exhibit using my Mac and they were thrilled.

Twenty years later, my colleagues and I at A2L have had the chance to work both on behalf of and against the U.S. government on countless occasions.

On behalf of the government, we have defended air traffic controllers accused of negligence, pursued countless antitrust cases for the Department of Justice’s Antitrust Division, worked on environmental cases for the department’s Environment and Natural Resources Division, pursued securities law violators for the Securities and Exchange Commission, and even helped prosecute the 9/11 perpetrators.

Our work opposing the government has been equally varied. It has included many False Claims Act and qui tam cases, environmental disputes involving water, ground and air, bankruptcy cases, EEOC cases, labor cases, tax cases and antitrust cases. Over the last two years, we have been frequently involved in helping individuals and businesses avoid indictment or civil penalty.

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Much of this work involves our litigation graphics consultants’ efforts to create presentations that will show the government that no crime has been committed or at least that the likelihood of succeeding in front of a jury is unjustifiably low to pursue the case. This litigation consulting work is especially challenging since prosecutorial inertia is hard to stop. However with so many recent and high profile prosecution failures at DOJ, I believe fear of yet another public loss is a useful button to push.

When we are working for the government, resources are tight. The federal government seems to have only a limited capacity to spend taxpayers’ money on such services as mock trials, litigation graphics consulting or on-site courtroom technologists. On the other hand, when we are opposing the government, our clients routinely talk about the unlimited resources of the government. I think they are both right.

In my experience, the government is quite efficient in how it spends money on litigation support services including litigation graphics, mock trials and courtroom hot seat operators. On the other hand, I have seen the government relentlessly pursue a defendant, spending countless thousands of hours on what is at best a legal peccadillo.

With this background in mind, care must be taken to handle the government carefully, whether as client or opponent. Below are some techniques we recommend.

  1. Test the attitude toward the federal government: Regardless of whether the trial will be litigation graphics-intensive or not, the degree to which pro- or anti-government feelings exist varies from jurisdiction to jurisdiction and at different times is critical to evaluate. We recommend testing the jury pool's "temperature" in pretrial work and designing litigation graphics (and your case's themes) accordingly.
     
  2. If your client is the U.S. and the juror attitude is friendly, make extensive use of agency logos. For example, if the government is attempting to regulate hydraulic fracturing (aka fracking), its efforts are likely to be received differently in New York City than in pro-gas North Dakota. If we were working for the government, under such circumstances, litigation graphics and themes would make heavy use of government logos, seals and insignia in Manhattan, but in Fargo the case would take a tone more akin to "this case is brought on behalf of the people of North Dakota" and the government's identifiers would be downplayed.
     
  3. If your client is the government, stop worrying about looking big. The government is often concerned with looking too big, but I think this fear is greatly exaggerated. Like big companies worried about looking too slick (see previous posts about David vs. Goliath and trial technology), the government is the government, and everyone knows it is big. The question is not size. The question is whether it appears to be overreaching. The point to be made, perhaps, again is that "we are here to defend your (the taxpayers') rights."
     
  4. If your opponent is the government, find a way a way to make this a strength. Perhaps you are in an anti-government jurisdiction. Perhaps the government has overreached. At one time or another, particularly around April 14 each year, we all feel victimized by the government — make use of this universal feeling.
Litigating for or against the United States is a special situation. It requires different tactics than everyday civil or criminal litigation. I encourage you to leave your thoughts in the comments below.

 

Other litigation graphics resources on A2L Consulting's site:


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Tags: Trial Graphics, Trial Consultants, Litigation Graphics, Trial Presentation, Jury Consulting, Litigation Consulting, Trial Consulting, Trial Technology, Criminal

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Authors

KenLopez resized 152

Ken Lopez founded A2L Consulting in 1995. The firm has since worked with litigators from all major law firms on more than 10,000 cases with over $2 trillion cumulatively at stake.  The A2L team is comprised of psychologists, jury consultants, trial consultants, litigation consultants, attorneys and information designers who provide jury consulting, litigation graphics and trial technology.  Ken Lopez can be reached at lopez@A2LC.com.


tony-klapper-headshot-500x500.jpg 

Tony Klapper joined A2L Consulting after accumulating 20 years of litigation experience while a partner at both Reed Smith and Kirkland & Ellis. Today, he is the Managing Director of Litigation Consulting and General Counsel for A2L Consulting. Tony has significant litigation experience in products liability, toxic tort, employment, financial services, government contract, insurance, and other commercial disputes.  In those matters, he has almost always been the point person for demonstrative evidence and narrative development on his trial teams. Tony can be reached at klapper@a2lc.com.


dr laurie kuslansky jury consultant a2l consulting







Laurie R. Kuslansky, Ph.D., Managing Director, Trial & Jury Consulting, has conducted over 400 mock trials in more than 1,000 litigation engagements over the past 20 years. Dr. Kuslansky's goal is to provide the highest level of personalized client service possible whether one's need involves a mock trial, witness preparation, jury selection or a mock exercise not involving a jury. Dr. Kuslansky can be reached at kuslansky@A2LC.com.

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