May 30, 2017 Practice Points

Getting Out of Your Comfort Zone: Alternative Litigation Tools

By Joseph Tamborello Jr.

The majority of lawyers tend to be more comfortable with tried-and-true methods of litigation preparation, particularly when more esoteric ones can be costly. Most clients aren't willing to throw money around, and it can be hard to understand the payoff for trial prep that we don't necessarily hear about as a best practice.

Compounding the problem, most of the professionals out there who label themselves "trial or jury consultants" charge a lot of money for their methods. Many attorneys feel that they need the "right case" to explore extra steps like videotaped depositions, settlement videos, or the use of a mock jury. "Right case" generally translates into "catastrophic case with sizable limits that justify the cost." These tools, however, can make a difference in legal areas like personal injury, wrongful death, or employment discrimination matters.

Uncover Gaps in Your Case with a Mock Jury
One of the most difficult tasks for any lawyer can be a candid assessment of a case's strength. As litigators we should approach every case asking what we lack. A focus group, or mock jury, helps us do that in a practical way: real people will evaluate the case and call out what's missing.

A practice trial before a mock jury, complete with witnesses and prepared evidence, can help you spot weak areas in your case. Among their many benefits, mock trials:

  • serve as a legitimate way to test your case—including the jurors' perceptions of your client and witnesses—with people plucked from the very jury pool where the case will be tried;
  • allow you to identify strengths and weaknesses on both sides in a risk-free environment;
  • provide a confidential means of evaluating your overall strategy, presentation, planned demonstratives, and approach to voir dire;
  • are very handy at delivering a reality check about the case and/or settlement value; and,
  • are fascinating.

Telling the Whole Story: The Case for Using Visual Tools
Video testimony is often part of a settlement brochure. Video presentations bring facial expressions, body language, and vocal intonations to life, and can create an impression that cannot be matched by words on a page. A well-produced video can accomplish this without being a stylized news report, or relying on a Hollywood-style budget. It can also be the perfect vehicle to deliver information to a decision-maker in a way that is most persuasive to that specific audience.

Consider these other ways that this technology can help your practice:

  • Video can be particularly helpful when dealing with insurance companies. Insurers process information on paper—attorney opinion letters, forms, medical chronologies, deposition transcripts, summaries, and the like. A video presentation allows an adjuster to see and hear the same story that the jury will see and hear, so they can better evaluate the claim.

  • As we know, some clients aren't the best ambassadors of their own cases, but they likely know someone who is. When you have a client or witness who makes a strong appearance, video from another source like a best friend or treating healthcare professional can balance a poor impression and offer additional perspective.

  • In mediation cases, it's always preferable that your decision-makers review all evidence prior to the mediation itself. When new video evidence is presented at the table, it has to be evaluated and integrated into the case knowledge on the fly. This isn't always easy, and it may not work in your favor. Advance video presentation of all evidence eliminates this risk. It also helps decision-makers set the appropriate settlement authority for the mediation itself.

  • Video can be an effective way to introduce un-deposed individuals to the opposing side in mediation, often serving to add a human element to names on paper. A video presentation can be an especially useful workaround when opposing counsel chooses not to depose a person with evidence that adds weight to your client's credibility or claims.

Ultimately, creating understanding on the part of the jury is about synthesizing the case, both substantively and visually. Using tools like mock trials and video to delve into your client's story puts you in a better position to tell that story. And not just for the "right case."

Joseph Tamborello Jr. is the founder of Just Perspective, LLC in Orlando, Florida.