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The Litigation Consulting Report

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.

 

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

Today's Tech Failure at the George Zimmerman Trial Takes Center Stage

Posted by Ken Lopez on Wed, Jul 3, 2013 @ 02:33 PM


trial technology failure george zimmerman skypeBy Ken Lopez
Founder/CEO
A2L Consulting

When your trial technology fails, you fail in the eyes of your jury.

This reality was on cringeworthy display this morning at the George Zimmerman trial. While examining a remotely-located witness via Skype, a popular video calling service, one or both of the parties to that video call was Skype-bombed.

That is, as the witness testified, other Skype users, likely unknown to the witness or prosecutors, began trying to initiate a Skype call during the live testimony.

The result was a screen full of pop-up windows, an obviously annoyed judge and a healthy dose of embarrassment for all involved - all on live TV. You can see the screen shot above and the video below will show you how things head downhill starting at the 40-second mark.


 

When it comes to trial technology, if you are not planning for failure, you are absolutely planning to fail. This was certainly true in this instance, and the failure was foreseeable and easily preventable.

There are three prongs in our suite of services at A2L Consulting: trial/jury consulting, litigation graphics and courtroom technology support. In this third area of courtroom trial technology, we have to face the challenges of running a live and unpredictable production at trial all the time. The persons charged with making the lawyers look perfect are called trial technicians or hot-seaters.

Great trial techs spend as much time talking about what might go wrong as what we need to do to get it right. Among the safeguards we have in place is the fact that we generally never allow our trial laptops to be connected to the Internet. This way, we can keep a clean wall between the trial laptop and one that is used for Skype, Facebook, Outlook or other services that might interfere at trial.

Here, instead of using Skype, one could have easily used a closed and secure video conferencing system like GoToMeeting or WebEx. Then, pranksters would have not been tempted to search out the names of the prosecutor or witness to Skype-bomb them.

When you are the star of the show, you do not want your trial technology failure taking center stage. Rely on experts, practice, anticipate failure and you will be positioning yourself for success - or, perhaps more importantly, positioning yourself to avoid failure.

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Tags: Trial Technicians, Trial Presentation, Hot Seat Operators, Trial Technology, Trial Director, Humor, George Zimmerman

Knock, Knock. Misuse of Humor in Litigation and the George Zimmerman Trial

Posted by Laurie Kuslansky on Wed, Jun 26, 2013 @ 02:07 PM


humor litigation trial george zimmerman knock knockBy Laurie R. Kuslansky, Ph.D., Expert Jury Consultant

In a high-profile murder case, defense counsel began the cross-examination of the prosecution’s star witness by saying, “No questions, your honor.” But then he quickly added, “Just kidding.” The courtroom filled with laughter. Everyone had anticipated a character assassination. The legal levity not only eased tensions, but softened the blow of the attack to come.

In another trial, a dull expert witness was asked to qualify his credentials on the stand: “Why did you become an auditor?” to which he responded, “Because I didn’t have enough charisma to become an accountant.” Again, the court erupted. The witness’s humor endeared him to the jury and made him instantly more interesting.

However, humor can also be grossly misused, as it was in the defense’s opening statement on June 24, 2013, in the second-degree murder case of George Zimmerman for shooting the unarmed, 17-year-old Trayvon Martin.

Evidently referring to the jury-selection process asking prospective jurors of their familiarity with the case, attorney Don West said (here's the actual video):

”Knock, knock.

Who’s there?

George Zimmerman.

George Zimmerman who?

All right, good. You’re on the jury.”

West later apologized and said he wouldn’t make any more jokes.  Too little, too late.  He already violated trust, decorum, and common sense, and the rules of using humor in litigation appropriately.

Humor is no laughing matter in litigation because it affects being liked and believed . . . or not. In the courtroom (or your own home), it’s hard to believe someone you don’t like. Since credibility depends on likeability, and humor enhances likeability (or detracts from it if used inappropriately), it makes sense to take a serious look at humor in litigation.

Not only is it common sense, but according to the “friendship/liking rule,”[1] people are more favorable to people they know and like and are more willing to comply with their requests. This principle is borne out by one of the most successful business models to evolve: the Tupperware home party. Tupperware found that sales pitches are received more positively from friends and neighbors than from strangers, since we believe people we like more than ones we dislike.

No Sex, No Drugs, No Rock and Droll

Humor is important because persuasion depends on a variety of circumstantial factors surrounding the facts, not just the facts themselves. Like other people, jurors use two different routes of persuasion: central and peripheral. [2] Using facts is the most powerful way to persuade jurors, using the “central route.” If the facts are too complex, too dull, or both (too scientific, technical, theoretical or statistical), and the subject matter is not intrinsically interesting, thoughtful consideration of the facts is unlikely.

In such instances, jurors resort instead to positive or negative “cues” that they associate with the issues (not the issues themselves) as shortcuts to base their decisions on, using the “peripheral route.” For example, jurors might be persuaded to find for a defendant because defense counsel showed more documents, brought more experts and played up their credentials better than plaintiff counsel, not because of the quality of defense arguments or opinions. The less personally involved jurors are with evidence, the more they tend to rely on peripheral cues than on an argument’s actual strength.[3] Being liked is an important ingredient in the cocktail of peripheral cues jurors use to decide whom to believe.

What Increases “Liking”?

Sales professionals know and use this information – perhaps too well. Attorneys and witnesses who do not share an existing friendship with jurors can still benefit from applying the liking/friendship rule by understanding a number of relevant factors outlined below.[4]

How?  

Appropriate vs. Inappropriate Humor in the Courtroom: What Is Funny?

Allowing jurors to see you smile, share a laugh, have something in common, laugh with you, laugh at a common enemy – this is humor. If used properly, it can be powerful. But, like knowledge, a little humor can be dangerous if misused.

Appropriate humor cannot proceed at the expense of a litigant or witness who will be hurt and sympathized with; instead, appropriate humor brings consensus, provides comic relief, or is self-disclosing, universal, and honest.

Recommendations on Using Humor Appropriately[5]

In voir dire: Humor can be used to create contact, compliments and cooperation with prospective jurors. For example, asking about driving experience (say, in vehicle accident cases) with someone who carpools children frequently, you might respond, “So, you’re a professional driver.” Instead of disdaining people like stay-at-home moms, your lightheartedness while validating and acknowledging them creates a useful bond. 

In opening statement: Humor can be used during introductions, poking fun at your own name. “My name is Laurie Kuslansky. With a name like that, it isn’t easy making reservations in a hurry.” “With a name like Bob Johnson, I have to work twice as hard and dress better so people remember that I am THAT Bob Johnson.” OR “My name is Andrje Czernovsky – which is too hard to spell, so most people call me Joe.” 

In closing argument: Remind jurors of lighter moments of the trial to show you identify with them. “There were times you’d rather be somewhere else . . . me too!” “Speaking of the technology, which, fortunately, we heard about AFTER the judge gave us all a coffee break . . .” 

Benefits of Humor in the Courtroom

Humor makes attorneys less “lawyerly,” more human and animated. Appropriate humor also provides other important benefits, besides likeability; e.g., it allows jurors to see you smile, relaxes them, disarms the authoritarian setting of a courtroom, makes you more accessible, makes jurors want to listen to you, creates bonding (if it uses a common denominator or is universal), helps jurors identify with you, enhances jurors’ attention and memory, and lightens things up when jurors feel oppressed or stressed. Evidence of jurors’ need for comic relief comes from the fact that they often come up with playful nicknames for key players in the case, including counsel, as revealed in post-trial jury interviews. 

Risks of Humor in the Courtroom: When in Doubt, Leave It Out

Don’t risk it if you aren’t sure you can. Inappropriate humor is unkind or makes others uncomfortable. A witness who is funny may be seen as disrespectful and irreverent. Inappropriate humor is at the expense of a person who draws sympathy; it shows mean-spiritedness, is an inside joke that excludes some participants, is about something others cannot relate to, is an expression of concealed hostility (such as saying “Only kidding” to dodge responsibility for a cruel remark). It is sarcastic, smug, bullying, or used in inappropriate settings. It is not appropriate in most criminal cases or ones involving individuals hurt physically or emotionally. What is funny depends on at whose expense it is expressed. Ask yourself whether it is really funny or something else, perhaps snide, veiled anger, defensive, distracting, a lack of confidence, overly self-deprecating, or to conceal your own discomfort. It is not an appropriate way to apologize. If misdirected, humor can create resentment or reduce credibility. It backfires if used as a defense/deflector when actually reacting to anxiety or anger. Humor is also an unreliable way to cover up a lack of preparation or disorganization; just be better prepared and organized.

 

Some other articles related to juries and jury consultants that you may enjoy:

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[1] Shavitt, S. & Brock, T. C. (1994). Persuasion – Psychological Insights and Perspectives. Massachusetts: Allyn and Bacon.

[2] Petty, R. E. and J. T. Cacioppo (1981; 1996). Attitudes and persuasion: Classic and contemporary approaches. CO.: Westview Press.

[3] Petty, et al. Ibid.

[4] Shavitt, et al. Ibid.

[5]   Hamlin, Sonya. (1988) How to Talk So People Listen. N.Y.: Harper & Row.

 

Tags: Trial Consultants, Trial Presentation, Jury Consulting, Litigation Consulting, Trial Consulting, Juries, Jury Consultants, Humor, George Zimmerman

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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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