Monthly Archives: July 2014
Trials, Lies & Videotapes
“One Picture is Worth a Thousand Words” – 1918 Newspaper Advertisement for the San Antonio Light.
Often I look to my own law practice and find inspiration for a topic on trial advocacy. In preparation for an upcoming trial and mediation, I decided that a sprawling case involving boxes of documents, video interviews, audio recordings, printed newspaper articles, internet blogs, and TV news reports would benefit from the same approach that a movie director or a cutting room editor might apply to a documentary or a movie.
My family is pretty creative and even a little artsy at times. My younger brothers every Christmas have put together family theatrical productions/movies and pseudo-documentaries together with PowerPoint, iMovie and Windows Movie Maker. One of my younger brothers is studying sports broadcasting and is in fact quite talented at putting news reports together. So I hired him to put together my client’s story. We used my detailed demand as our working script and pieced together our case in a visual format. The collaborative result was an impressive and focused narrative that I provided which was interspersed with segments of evidence we had collected as part of the discovery process.
I have increasingly been taking video-taped depositions of the key players in cases. I then present video clips from the deposition as part of my presentation at mediations and in trials. In a video deposition, the witness cannot hide. He cannot say “that is not what I said” or “the court reporter must have misunderstood me.” He is much less likely to rewrite his deposition with his errata sheet, as well. If your opponent objections or tries to coach the witness, you can let the objections in to show what is really happening or edit them out for clarity and flow. Pregnant pauses can be eliminated to develop pace and increase interest.
In this day and age, people want information presented in an easily digestible format. In my most recent case, there were a number of media formats. These sources included TV news conferences, video depositions, video interviews, audio clips, surveillance videos, documentary evidence, as well as, informational clips summarizing the topics of liability, the law and damages. The whole presentation was cut down to about 15 minutes and I was able to stop the “movie” on separating slides, narrate and highlight the upcoming clip with my own headlines, outline or off-the-cuff observations.
I knew it was powerful and persuasive when my opponent remarked that “well it is not as clear and clean as you wanted to make it.” Nonetheless, all the information that was pieced together was objective and irrefutable. I did not make it up. The order in which it was presented made it easy to follow and see why it was damaging to my opponent’s position. The most damaging video clips came directly from my opponents discovery and depositions or from news interviews found on the Internet or YouTube.
In one instance the other side was testifying about a supposed “head-butt” committed by my client. I was able to play the few seconds of taped footage from a squad car showing the event, then immediately play the other party’s testimony describing the event he saw. While he described the event during his video deposition, I was able to superimposed in the lower corner of the screen, a video clip (no audio) which cycled through the supposed “head-butt” several times as he testified about it. The party’s description of the event could be immediately compared with his deposition testimony. The viewer could judge instantly whether a crime had been committed as suggested by the deponent or whether it was an overblown post hoc justification for an unlawful arrest.
60 Minutes is an excellent show that competently digests and puts together an array of interviews, media and information in a concise and persuasive fashion. Today these technique are now available to the average person at minimal cost. Keep this mind for your next case as you move forward.
Zen and the Art of Trial Advocacy
“The moon does not fight. It attacks no one. It does not worry. It does not try to crush others. It keeps to its course, but by its very nature, it gently influences. What other body could pull an entire ocean from shore to shore? The moon is faithful to its nature and its power is never diminished.”
~ Deng Ming-Dao
Staying focused and on course in a trial is important. There are so many things to distract, delay and confuse the jury. Objections, irrelevant evidence, innuendo directed towards your client or witnesses, judicial pontification and other assorted events distract and confuse jurors. It is important that you are not one of them. That is why having an even demeanor and a clear theme for your case is critical.
A case’s value or outcome often turns on the credibility and likeability of you and your client. If you can remain calm through the ups and downs of a trial, it will not go unnoticed. Jurors will look to you when a harmful piece of evidence is revealed to see how you react in order to gauge the event’s importance. You need to impart a Zen like demeanor. This calms your client and witnesses. It also sends a subtle message to the jury that everything is going to be alright.
Staying calm is an important strategy to share with your client and witnesses. Jurors often gauge how important or critical an line of questioning is by how your client or witness reacts when confronted by your adversary on cross-examination. The only thing one has absolute control over is their behavior and demeanor. By emphasizing this point with your client and witnesses, you can both empower and relax them. No matter how rude or aggressive the other attorney is, it’s important for them to remain calm and composed. By doing so, the examination will typically be shorter. When an adverse attorney senses he has drawn blood, he will bore in with more of the same. A client or witness can tactically overcome this by simply remaining calm. Likewise, the client or witness must avoid sarcastic, insincere or solicitous remarks. This is their chance to make a good impression and answer what is asked. It is not their job is to exchange verbal jabs with the other attorney or “win the case”. There is an old saying, “If you wrestle with a pig, you’re bound to get dirty.” Don’t let your client or witness get dirty by wrestling with the other attorney, because ultimately, they will lose.
A theme is the glue that binds your case. It draws the jury into your view of the evidence and keeps them there. A theme is important because it gives you and the jury a clear course to follow and a lens to view the evidence through. A theme can be as simple as a “man must be true to his word” or “sloppy police work leads to unreliable evidence and reason to doubt the state’s case.” Have you ever seen a movie that consisted of a lot of “good scenes” but was overall unwatchable? Why does this happen? Usually the movie has no clear unifying “plot” to hold all of the “good scenes” together in a coherent fashion. You as the “director” of your case need to have a clear “plot” or “theme”. Without a theme the jury gets lost and forgets or misinterprets the evidence. You want the jury to be looking for ways to fit the evidence into your view of the case, not your opponent’s. The theme should be presented during juror voir dire, opening statement, direct examination, cross-examination and closing argument. One of the best ways to do this is to prepare your opening statement well in advance of trial while discovery is still underway. This will help inform every aspect of your case and preparation. It will help you evaluate what is needed and what should be left on the cutting room floor.
Remember Young Weed-Hopper, “If you stay faithful to your case’s true nature, its power will never be diminished”.
The Barrister's Toolbox 