A Litigator's Guide to Thriving in the Digital Age -- Recap of Division 1's Lunch Program in Austin

What applications should I buy?

How do I try a case without carrying 4 boxes everyday? 

Email - love it and hate it, how do I find a balance?

Karl, Rob, Drew, and Tom gave answers to D1 members in Austin.

Karl Seelbach, Rob Ruesch, Drew Harris, and Tom Dunn

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Rob Ruesch, Division 1 Steering Committee Member, the lunch program for Divisions 1 and 2 at the Fall Meeting in Austin, Texas.  The topic maxed out the occupancy of the room given to us and there was active participation by the attendees during the program.  

During the presentation, Karl Seelbach talked about technology and the mobile litigator.  He highlighted the "go to" applications. I asked Karl to recap his presentation for Division 1 members who could not join:

Attorneys who want to stay organized and get a leg up on the competition should use technology to their advantage. Consider using a task management app (e.g., Todoist) to organize your projects, assign tasks to your entire team and monitor their progress. Stop printing reams of paper and carrying heavy boxes to depositions. Instead, use electronic exhibits (e.g., AgileLaw) to go paperless. Stop writing your notes on paper. Instead, use a note taking app (e.g., Evernote) to make your notes searchable and shareable with team members. Or at the very least, scan your handwritten notes for safekeeping (bonus:  some apps convert your handwritten notes to searchable text). If you’d like more free tech tips or a list of recommended apps for attorneys, contact me at karl@doyleseelbach.com or sign up for my monthly newsletter at http://www.doyleseelbach.com/. 

Drew Harris walked us through Trial Director for ipads.  He demonstrated the "must have" tools for a trial attorney's toolbox and conducted a live demonstration of trial he recently conducted.  By the end of the presentation, the vast majority of the attendees raised their hand that they will consider using an ipad for their next trial.

I (Tom Dunn) spoke about email practice management.  I went through the answers to the 10-Question survey of Division 1 members and shared my own experience / strategies to manage and control email and not let it control me.  Click HERE to view my presentation.  

Thank you to all of the Division 1/2 members who attended the meeting.  If you want access to some of the written materials provided at this program (or past programs), please contact Nick Holmes (nholmes@devinemillimet.com), Division 1 Chair, for access to the Division 1 dropbox account.  

If you come across new applications or strategies to deal with the "digital age" as a litigator or trial attorney, please contact one of the editors of The Dispute Resolver and we may be able to share it with Division 1 members.

#ABAConstruct #FCLAustin #TheDisputeResolver

Overview of AAA and DecisionQuest's CaseXplorer Arbitration

In our large, complex jury trial cases, many Division 1 members are likely using focus groups and mock juries to assist in the development of themes, evaluate the effectiveness of witnesses, and to develop presentation strategies. 

What about arbitration?  Are mock juries and focus groups worthwhile? 

I (Tom Dunn) talked about this issue with Michael Powell at a conference a couple of months.  Mr. Powell is a Vice President of the American Arbitration Association.  He oversees the Western States: Alaska, Arizona, California, Hawaii, Idaho, Montana, Nevada, New Mexico, Oregon, Utah, and Washington.  He told me about a new service offered by AAA and DecisionQuest that offers "mock arbitration" services.  The service is Called CaseXplorer Arbitration.  I asked Mr. Powell if he could write up a brief summary about the service. It is below. 

Open Questions for D1 Members: What have you done to test themes in the context of your construction arbitrations?  Have you attempted to find "mock arbitrators" that share some of the characteristics of your selected arbitrator?  Other evaluative tools? Has anyone had an opportunity to use the CaseXplorer Arbitration service?

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Have you ever wanted cost-effective feedback on your case from a mock arbitration panel, just to be sure that you are giving your client an objective assessment of their case? Well, the American Arbitration  Association^® (AAA^®) and DecisionQuest^® teamed up to create the online tool CaseXplorerArbitration, a lower cost alternative to in-person mock arbitrations. It enables users to receive an objective evaluation of their case from experienced arbitrators. CaseXplorer Arbitration can be utilized before an arbitration case has been filed or while the actual arbitration is pending. 

With the CaseXplorer Arbitration online case evaluation tool, users are able to obtain feedback on their arbitration case from three or five AAA evaluative arbitrators who are not associated with the actual arbitration. The user provides the selected arbitrators with written materials—facts and legal arguments—along with questions. Documents and videos may be provided as well. The arbitrators’ written responses are provided to the user once all the arbitrators have completed their responses. This process usually takes three to four days. At minimum, users will learn more about their case, and the arbitrators’ feedback may allow for cases to be resolved sooner.

Selecting the arbitrators can be the most critical and challenging component of a construction mega project arbitration. Unlike traditional arbitration where parties select a local arbitrator or panel of arbitrators, construction mega project disputes often involve parties from different states and/or countries. Consequently, it is likely the parties will need to deal with an unfamiliar sole or tripartite panel of arbitrators. CaseXplorer Arbitration’s online arbitrator search can help parties in these challenging situations.

The online search allows users to peruse the AAA’s full roster of CaseXplorer Arbitrators by keyword, expertise and locale to select three or five participating arbitrators.  As part of the process, users are required to provide party information regarding themselves as well as the other side to the dispute (i.e., names of persons, firms, companies) in order to facilitate conflict checks and disclosures by prospective CaseXplorer Arbitrators.

If you are interested in learning more about CaseXplorer Arbitration and how you can use this process for your arbitration cases, please contact Michael Powell at PowellM@adr.org or 213.362.1900.

 

Trial Tips from Practice Masters

Earlier this week, the "Your ABA" publication included an article entitled "Preparation and Attention to Detail Can Pay off at Trial."  This article arose out of a video seminar of about an hour long that can be downloaded for free by any ABA Member.

The article and seminar focused on general trial strategy related to "the little things" in the case and in presentation generally.  Discussion during the seminar ranged across all areas of trial and included everything from how to handle surprise testimony that pops up at trial for the first time (common sense tip: if it is truly a surprise to you, request a brief recess so that you can consult with your colleagues or client or call someone who can help you with the issue) all the way to how you should dress for various days of court (one panel member suggested wearing brighter ties/clothes on days when the attention should be on you, such as opening statements, closing arguments, and key cross examination days).

One of the most helpful tips from the article that I saw came in the very last sentence:

[Andrew J.] Smiley [managing partner and lead trial attorney at the New York firm of Smiley & Smiley LLP] says you have [to] look at trial like a chess match, anticipating your opponent's next move.  "You should anticipate what can go wrong and plan how you'll handle it," he adds.

The mark of a great trial lawyer is being able to make the times when you truly are surprised by testimony -- whether from opposing witnesses or your own -- and turn those times either into advantages for your client or at least not making it appear that you are caught flatfooted.  While there is no substitute for experience, watching others in action can help guide you in the right direction.

Now, here's my question for all of you: Many of us have now tried a number of cases, whether to juries, judges, or arbitral panels. If you could go back and tell your younger self one or two tips to improve your trial skills far earlier in your career, what would those tips be?

Delving Into Mock Trials and Jury Psychology

By: Galina Davidoff Director of Jury Consulting at Magna Legal Services

 Published On: Thursday, July 17, 2014 at www.enewsletters.constructionexec.com

There is hardly an experienced trial attorney who hasn’t lost what seemed like a very strong case. In fact, 68 percent of attorneys’ predictions of legal outcomes are wrong, according to a study.

It is hard to predict legal outcomes because of the great multiplicity of factors involved, especially in jury trials. While everybody knows that jurors’ pre-existing opinions matter, taking them all into account in a particular case is a challenging task. Consider the following two cases and the reactions of surrogate jurors who participated in the mock trials.

 

  

 

1.      In an upper-middle class, conservative venue, jurors discuss alleged violations of federal regulations by an owner of a construction project. The allegations are part of the defense put forward by the construction company, which in turn is accused of poor workmanship. Initially, all seems well for the construction company, but as the discussion progresses, the jurors are increasingly putting themselves in the shoes of the owner, finding more excuses for why he evaded, ignored and broke government regulations. The end result: Regulations are found to be broken, but the violations are deemed irrelevant and the construction company is viewed as responsible for all the alleged defects.

2.      A government agency claims it has no obligation to follow its contract because it is not the contract it intended to sign. The contract involves insurance coverage for multiple construction projects. The insurance company argues that the contract was negotiated by experienced insurance brokers on both sides and clearly says what it says. The case is in a multicultural liberal, mixed-income venue. In deliberations, jurors show disdain for the government agency and its wasteful ways, and eventually find against the insurance company, which they see as being sneaky and exploitative of government inefficiency.

If the venues were switched, the results likely would have been very different. The strategies were good; they just did not match the interests and the mood of the prospective jurors. As deliberations in these mock trials demonstrated, real estate is not only always local–it is also political. Jurors try to stay away from political arguments per se, but their conservative or liberal attitudes are clearly identifiable. This by itself may not be news, but these days peoples’ attitudes can shift and become more polarized quicker than expected.

Litigants and attorneys’ perceptions of the political climate and their own political orientations also play a role in their assessment of the strength of their case. Lawyers and business leaders are as human as jurors and as such cannot fully isolate their personal views. At this time of political polarization, even experienced trial attorneys often look across the divide with a sense of incomprehension, wondering how people can believe what they believe and where do they get their facts. Evaluating cases in such climate is even more challenging.

Because construction cases touch on many issues and opinions, trial lawyers have space to be creative and find juror predispositions that help their case. Neither of the aforementioned cases was hopeless. Different trial strategies produce different results. For example, in the first case, surrogate jurors taught the attorneys that stressing violations of government regulations was not a winning strategy. But they did learn how to focus jurors’ attention on the owner’s complete control over the project and the bad choices for which he now must accept responsibility. Now, when the case goes to trial, the construction company need not lose credibility by talking about government regulations. The insurance company learned that jurors were willing to let an ignorant government agency off the hook. Based on the jurors’ feedback, the company determined how to demonstrate the government agency’s full knowledge of the contract terms and thus its full responsibility.

It is not surprising that attorneys were able to learn so much from the small groups of non-experts. Studies show that groups and even crowds consistently beat experts in evaluating complex problems, such as predicting trial outcomes (see Predicting Civil Jury Verdicts. How Attorneys Use (and Misuse) of Second Opinion). According to the studies, the more experienced an attorney is, the less likely he or she is to take into account opinions of other equally experienced attorneys. The reason groups do better than experts is that people’s mistakes tend to cancel each other out, while experts tend to be entrenched and dismissive of contrary views. Thus, if the only people who evaluate a case are all well-educated and personally invested professionals, it limits the accuracy of the evaluation. For more information on the subject, read James Surowiecki’s The Wisdom of Crowds: Why the Many Are Smarter Than the Few and How Collective Wisdom Shapes Business, Economies, Societies and Nations.

Time and again, jury research shows that outcomes can be changed with the right strategy and made much worse with the wrong one. Both academic and applied research finds that the best evaluations of complex problems such as civil jury trials are based on a variety of perspectives that come from groups and individuals with varied life experiences. Groups of disinterested observers appear to offer greater wisdom than experts alone in evaluating risks associated with complex events. Perhaps that is the reason jury trials have such an important place in the justice system in the first place.

Galina Davidoff, Ph.D., Director of Jury Consulting at Magna Legal Services, is one of the leading experts in development of winning trial strategies for complex commercial and criminal matters. Dr. Davidoff has consulted on a number of high profile cases and hundreds of cases across the nation. As a litigation and trial consultant, she has assisted her clients in the development of winning trial strategies, jury selection and voir dire, implementation of shadow juries, witness communication training, ordering evidence, opening/closing statements, the development of themes and arguments, demonstrative evidence preparation, and teaching persuasion techniques.

She can be reached at 866.624.6221 or GDavidoff@MagnaLS.com.

Reprinted with permission from Construction Executive, July 2014, a publication of Associated Builders and Contractors Services Corp. Copyright 2014. All rights reserved.