Plaintiff Trial Lawyer Tips

FOCUS GROUP STUDIES

Posted on May 11, 2013 by Paul Luvera| Leave a comment

NOTE: My wife and I leave for Botswana Africa this week and I will not be posting anything for several weeks. Thanks for checking back later

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We all know the value of focus studies. The problem is there are so many ways of conducting focus studies that they can lead to incorrect conclusions. My own view is that mock trial studies, that is presenting a mini trial with plaintiff and defense evidence and argument is fraught with the danger of invalid conclusions. Even with professional help so much depends upon who presents the material, what is presented and how it is presented that there is a large danger of drawing invalid conclusions because a trial is battle of impression. The impression can vary greatly depending upon the previous factors. You can draw conclusions about issues, evidence and specific matters as well as gain insight about issues and even some information about jury profile. However, any broad conclusions about winning or losing and verdict amounts is very suspect.

Extensive focus studies done by professionals can be very expensive and often exceed $20,000 depending upon how they are conducted. I understand why many lawyers feel this is a bargain, but my own view is that informal focus studies are more beneficial for me, although having a professional consultant is always a good idea if you can do it.

My approach is the less that is provided by way of facts the greater the value of what you learn. I also believe focus groups can be very helpful regarding evaluation of clips of deposition testimony, exhibits you plan to use, voir dire and other case issues. I also think multiple focus groups are helpful and they do not have to be an elaborate affair.

If one conducts a mock trial focus study or a more complicated study, the question is what do you ask the jurors after it is over? I am not endorsing the procedure or the following questions, but here is a general outline of specific questions one might consider. This is not an approach I use, but I present it as a resource. The questions are no original with me, but gathered from a lot of sources I no longer recall.

What are the two most important things you have heard so far about this case?
What are the two most important things you have heard so far that help the injured plaintiff case? (Please answer this no matter which way you’re leaning)
What are the two most important things you have heard so far that hurt her cases? (Please answer this no matter which way you’re leaning
Wat are the two most important things you have heard so far that help the defendant case?
What are the two most important things you have heard so far that hurt the case?
If this case goes to trial in a courtroom, some jurors might decide that the plaintiffs should win this case. What do you think would be the two most important reasons they would do that?
If this case goes to trial in a courtroom, some jurors might decide that the plaintiffs should lose this case. What do you think would be the two most important reasons they would do that?
What could have been done to prevent this from happening?
If this case goes in front of a courtroom jury, what will be the three most important things for the plaintiffs’ attorney to tell the jury?
If this case goes in front of a courtroom jury, what will be the three most important things for the attorney for the defendants to tell the jury?
Was the defendant negligent? __ Absolutely yes___ Probably yes___ Probably not___ Absolutely not
Please explain why you feel that way:
A defendant can be negligent and still not be a cause of the harm. With that in mind. Was any negligence of defendant a cause of the harm to plaintiff?___ Absolutely yes___ Probably yes___ Probably not___ Absolutely not
Please explain why you feel that way
How much money should the defendant pay to plaintiff?___ nothing___ A very small amount___ More than a small amount but less than his lawyers are asking for___ About what his lawyers are asking for___ More than his lawyers are asking for
What else would you like to know in deciding the money?
What helped you decide how much money was the right amount in compensation?
What facts or arguments made it hard for you to decide about money?
If other jurors decide on amounts of money higher than you did, why do you think they would do that?
If other jurors decide on amounts of money lower than you did, why do you think they would do that?
What would you like to say to anyone involved in this case?
What would you like to see happen as a result of your decision-making in this case?
How do you think cases like this one might best be resolved?
What would you like to say to anyone involved in this case?

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Posted in Jury

TRIALPAD AND TRANSCRIPT PAD FOR TRIAL LAWYERS

Posted on May 4, 2013 by Paul Luvera| Leave a comment

It’s my policy to not promote products in this blog, but today is an exception. I’ve gone through a transition over the past several months regarding a new experience in trial preparation. For many years I have relied upon two hole notebooks for all of my trial materials. I should have bought stock in Bindertek who makes the notebooks I use because I’ve purchased so many of them over the years. See: www.bindertek.com.

I put my trial prepration and trial materials in different colored notebooks depending upon whether it is witness’s materials, discovery, cross examination, briefs, exhibits and so on. Not only is the color a great organizational tool, they also come in different sizes and, best of all, because they are two hole they do not make a snapping noise when you open and close them in court the way three hole notebooks do. They are also much easier to open and close than three hole notebooks. I have hauled these notebooks in brief cases around the country and have had them in boxes under the audience benches in court rooms during trials and at pre trial motions. We determined how big our cases were by the number of notebooks we used. I am still a big promoter of Binderetek notebooks and continue to religiously use them.

However, while I still follow the practice of organizing the hard copies of materials in notebooks and will have the notebooks available at trial, I have been introduced to a wonderful way to use the Apple I-pad with two Apps that have made a huge difference in how I organize and use trial materials. Both are available at the Apple Store. www.apple.com. One App is TrialPad which costs $89.99 and is worth every penny and more. The other is TranscriptPad which costs $49.99 and is equally a bargain price. Lit Sofware is the creator www.litsoftware.com It should be noted that the purchase price for both comes with free (and very prompt) support and all updates are free. There are no subscription fees, no registration cost and no annual maintenance costs.

A simplistic description of the purpose of each is this: TranscriptPad is made to use in organizing depositions and exhibits and TrialPad is intended for court room presentation of trial materials and exhibits. Both of these products are strong for reporting, organization and searching. Take a look at You Tube for better descriptions about the use of these products.

Why am I enthusiastic about these products? For two reasons. One is because, at the moment, I have two large entire cases stored in my single I-Pad using these products. That includes every pleading, motion, brief, deposition, trial brief, jury instructions, photograph, video and exhibit of every kind. When I travel or go to court I have the entire cases in my I-pad and I can easily access the documents because they allow detailed organization within the Apps. I am not packing brief cases full of documents around, but rather only the hard copy I need such as the proposed orders on motions or documents I want to show the court. However, if I wanted to I could project the document from the Ipad to a screen or TV in the court room. I have the assurance of having the entire file with me without having to have the physical materials and I can access it quickly and easily in a single Ipad device.

The second reason is that TranscriptPad allows such excellent organization and designation of discovery testimony. It has features which allow me to create color coded issues and highlight deposition testimony saving under an issue heading. I can print reports of the designated testimony in a variety of ways including by issue. I can also export the work product by document or even the entire file to another device with TranscriptPad. I can e-mail designated testimony as well. That allows me to send portions of a deposition to a video tech as an instruction of what parts of the video deposition I need for court use.

In addition, TrialPad has such excellent features for designiating parts of a deposition or exhibit and enlarging it as a callout for projection on a screen or TV or for use in other ways. It includes many features for presenting the materials while putting the entire file in a device I can hold in one hand with the ability to find files quickly.

Here’s is an overview of how I am using these products. I subscribe to a software called Dropbox. www.dropbox.com This software allows one to simply and easily transfer documents from your computer to your I-Pad. While there is a free version I pay a low monthly fee for a version that allows transferring more volume for my cases. One thing to note, however, is that we use a different sofware, Box for transferring medical information because it offers security that Dropbox doesn’t offer. See www.box.com

Here’s how it works. Documents which are E-mailed to us or those created in our computers are saved and then easily moved into Dropbox program in the computer. Other documents are scanned into the computer. Once deposited they are wirelessly transferred through WiFi and deposited in the Dropbox in my I-pad. I open them in the Ipad Dropbox and quickly move them to either TranscriptPad or TrialPad. Simce Pdf is required for these products, I will originally save them in the computer in that format or, if in some other format like Word, in my I-pad move them from Dropbox to another App I have downloaded to my I-Pad: IAdobe through the Apple store. See www.adobe.com This App has features I like including conversion of documents into a Pdf format and from there moving it easily into either TranscriptPad or TrialPad.

Since both Apps allow detailed organization (in color) one can locate documents quickly as needed. I now travel or go to court with an I-Pad and even though I will have my Bindertek notebooks in the court room during the several weeks of trial I won’t be hauling them home every night. In mid-May my wife Lita and I are traveling to Botswana for a photo safari. I plan to take with me my Amazon Kindle for reading and my I-pad for my mail and with two entire cases loaded in the device. Furthermore, on this trip I’m taking my mini-IPad which has duplicate case material instead of the full size Ipad. Isn’t it amazing? Two small (5″ x 8″) devices. One with a dozen books electronically stored for my reading and the other with two large cases with every paper stored in it. I don’t have to take either one out at the security checkpoint and with a small backup battery as well as a portable WiFi connection I am prepared as possible.

I know that many of you will be saying to yourself: “He’s just now discovering all of this? What rock has he been living under?” But, I thought I’d share my personal discovery for the few that aren’t aware of the advantages and would like to investigate it. Unfortunately, I don’t get any kick back or a free anything from the makers of these products. Check them out.

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Posted in Trial

SOME IDEAS ABOUT COMMUNICATION

Posted on April 26, 2013 by Paul Luvera| Leave a comment

David W. Mykel published an article in March that discussed the importance of visual evidence. He says that almost 70% of the population are visual learners with some 49% of the people getting their information from the internet. He suggests that we are dealing with a different kind of audience, one that embraces technology. People spend a considerable amount of time in front of a television and online. We should consider how we are presenting our evidence in court. While PowerPoint can be abused and exhibits overdone, we err too often on the side of not accomodating the need of so many jurors to see it before they believe it. I recommend simple focus studies where the only issue is a review of the proposed exhibits you intend to use and the manner you plan on using to do so.

The Harvard Business Review published an article “The Visualization Trap” in which they discussed the well-known phenomenon of hind sight bias – the belief that past outcomes were predicable. In a study participants were given written diagrams and a description of how an accident occurred. Another group was given a computer animation of the accident. The groups were surveyed as to how predicable the result was from the information given them.

The group that watched the animation was more than two times confident the outcome was predicable than the other group. The animation group was even more confident than actual witnesses who were asked if they had seen it coming. When subjects were given photographs to go through at their own speed of a traffic situation they were surveyed on the same issue with another group who had seen an animation of the same situation. The results, regarding hind sight bias, were the same. Researchers concluded that movement is a critical factor in creating the effect.

Computer animation can purport to make sense out of highly complex information and influence conclusions about predictability. Today, we can create animations much more cheaply than in the past. Simple animations can make a large difference in perception. A series of photos moved one by one with illustrations and labeling can be more effective that a still photo in that regard. Think about this in cases where high sight bias could be an issue and in cases where you need to make something simple.

In his book The Social Animal, David Brooks offers insights as to how the human mind works. One thing he points out is that in persuasion, instead of telling the other person what you are offering, ask them what they want. Ask what makes them unhappy, keeps them up at night and what part of their job they like. Your message should be: “It’s all about you and not about me.” Have you considered asking a jury panel what they would want to have presented on an issue in your case. For example, where credibility is a critical issue, “How do you tell when someone is not tellling the truth? What would you want to know about that issue in making up your mind?” Or, perhaps “What evidence would you want to have in order to decide……?” Certainly, spending time talking about the juror is more rapport building than lecturing them about your case.

Brooks also writes about he influence of “priming” on our thought processes. When subjects were given a test with a series of words vaguely related to elderly people, after the test, researchers observed them moving more slowly.

When subjects were given a test with a series of words relating to aggressive behavior and annoying conduct, they found, afterwards, the subjects were much quicker to interrupt someone and act more rudely. Likewise, a group who was given stories of high achievement performed at a higher level on tests than those given stories about failure.

In another situation involving priming, a Brunswick pool table store did an experiment in sales. One week the sales people showed customers the lowest priced tables first and then the more expensive. The next week, they did the opposite. They showed the most expensive tables first and then the lower priced ones. The result was that the first week customers spent an average of one half of what customers spent the second week. The customers who were first shown high priced pool tables felt the prices for the lower priced tables were more of a “bargain” due to the previous prices by comparison. They same thing has been done by successful real estate sales people in showing more expensive homes first.

Have you considered the influence on the jury by discussing large numbered things in comparison to your request for damages? What about asking about excessive verdicts using examples of very large verdicts? It raises questions, as well, about suggesting a verdict number to the jury in voir dire or opening as a priming effect. Think about this in connection with the idea of framing. As an example, a surgeon who tells patients there is a 15% failure rate communicates something different than when he tells them there is an 85% success rate. Trial lawyers are supposed to be word masters. We need to study these important ideas about how we express ourselves during trial.

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Posted in COMMUNICATION