Simmons Trial Practice

Telephone (503) 221-2000 – Civil Litigation

Business Litigation and Trial Presentation Software

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Most business litigation cases settle. But if your lawyer cannot go to trial, you get a bad settlement. In trial, clear and direct presentations win, while confusing and verbose presentations lose. Nevertheless, I see lawyers go into court with skimpy visual persuasion, trying to win by adding more talking.

The reality is, people are visual. “Blah, blah, blah” neither captivates the jury nor interests the judge. Compared to criminal trials, civil trials are boring. There is no blood. There is no violent conflict. There is a contract to interpret.

In the past, well-prepared trial lawyers relied on big enlargements of documents, charts and photographs, mounted on foam-core board. Big paper enlargements are still useful, because they can be left propped up and visible all the time.

But often when the trial starts, the plan changes.

“No plan of operations extends with certainty beyond the first encounter with the enemy’s main strength.” – Helmuth von Moltke, a Prussian strategist of the 19th century.

When opposing counsel departs from your expectations, it is hard to edit your big paper enlargements to respond to some brand new attack. Corrections to pre-printed exhibits can take a day or two that you may not have.

Trial is a competition. To win you use trial-specific technology to enlarge and display documents and photographs in the courtroom.

Exhibits must be shown to be effective. The efficient way to do this is with trial presentation software.

Business presentation software, e.g. PowerPoint, is for business meetings. Trials are much more adversarial than business meetings. In trial, your presentation must change, during the trial.

Recommendation: TrialSmart

The trial presentation software I have used lately is TrialSmart. It runs on Apple computers. It is so easy to use, that you do not have to use a technology assistant to run the program. Highly recommended.

For a recent arbitration, TrialSmart was a big time-saver. It had been a few months since the last time I needed to use TrialSmart, but I was able to quickly get the exhibits into the correct folder on the computer, re-learn how to put up each exhibit on the screen, and re-learn how to magnify just the relevant part of the document to a big, easy-to-read insert.

In trial you want to enlarge part of an image on the screen. Perhaps you will want to show the relevant words from a contract. The enlargement is done after first displaying the entire image. Some describe this as a “call-out”, while TrialSmart uses the expression “magnify”. Using TrialSmart, it is easy to use this powerful attention-getting technique. Here is an example of what the screen will show:

Part of Document Magnified

Part of Document Magnified

The letter (pictured above) contained the point, but showing the magnified quote emphasizes the three relevant words. Everyone remembers what you magnify and this is much better than using a yellow highlighter on a foam-core paper enlargement.

Note that the magnified part of the document is not displayed by itself. It is shown in front of the full page, still visible behind the magnified part.

Leaving the full image visible in the background has an important effect: it eliminates a potential adverse emotional reaction. It is comforting to see where you got the quote. Leaving the entire image context up as background is a major differentiator between using PowerPoint, and using trial presentation software such as TrialSmart. PowerPoint cannot do this, which is why you need trial software.

This 3-minute video from the developer shows how simple it is to use this powerful technique:
How to Magnify Exhibits and Documents in TrialSmart

Afraid of Apple?

The TrialSmart program runs on an Apple computer, typically a MacBook Pro or MacBook Air. If you want to use a Windows computer, the leading trial presentation software programs are Sanction and Trial Director. I own a copy of Sanction; I like Sanction. I prefer TrialSmart. TrialSmart is easy to use, easy to manage the exhibits on the notebook computer, and easy to show the exhibits on the screen to the fact finder. Also, Mac computers tend to be generally easier to use.

Business litigation presentation

Only a few business disputes go to trial, see the post with Judge’s comment about lack of trial experience of some lawyers.
But when a business case goes to trial, the visual presentation can tip the outcome. Endless talk about a contract is boring to the jury, boring to the judge, almost puts me to sleep and I am being paid to listen. When you follow your opponent’s bunch of talking by putting up an image, everyone perks up, out of desperation for visual stimulation.

Adverse possession litigation

Adverse possession cases are particularly in need of visual presentation. You can show the property boundaries, and you can show the proof of each element. I have won adverse possession trials, in part because I use images to prove my points. Once, I had a Judge announce, while looking at a photograph I put up, “I find that Mr. Simmons has proven adverse possession by clear and convincing evidence …”

Disclaimer: past victories are not a guarantee of future victory. Each case is different.

If you have a business litigation matter that may go to trial or arbitration,
call E. J. Simmons at 503-221-2000 to set up a consultation about your case.

Another unfortunate arbitration agreement

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In March of 2009, the United States Court of Appeals for the Ninth Circuit upheld the dismissal of a case with prejudice. The plaintiff had agreed to arbitration but could not afford the $220,000 advance arbitration fee. Kam-Ko Bio-Pharm v. Mayne Pharma, No. 07-35449. This left the party with no remedy.

The decision follows settled law. That is, if you are a business (not a consumer or employee) and you sign an arbitration contract, you are bound by the contract terms. But the unfortunate parties who sign ridiculous arbitration contracts do not understand the implications of an agreement to arbitrate.

There are 2 problems with the arbitration process: It is more expensive than Court proceedings, and the decisions are of lower quality, i.e., arbitrary.

I recommend arbitration generally in situations where you are wealthier than the other party and you do not care about the outcome.

Arbitration is expensive

As in the case cited, the parties have to pay for private arbitration.

On the other hand, in the Court setting, access to the system is a benefit of our government, already paid for by our taxes. For a $350 filing fee you get the benefit of an excellent system.

Lower quality because of less experience

Many arbitrators are attorneys who are considering becoming Judges someday. The typical arbitrator has heard a small fraction of the number of cases heard by the typical Judge.

“Early on the learning curve” translates to “increased probability of mistakes”.

To lesson the effect of random factors, the arbitration agreement can require 3 arbitrators. Of course, this triples the arbitrator fees.

Lower quality because of lack of feedback

Arbitrators and Judges are human. As a result, they make mistakes.

If a Judge makes a mistake in a big case, the parties may appeal. But there is no appeal from a wrong arbitration decision. So the arbitrator who makes incorrect decisions may never learn.

Furthermore, there is no public record of incorrect arbitration decisions. Data on the performance of arbitrators in actual proceedings is, to be charitable, incomplete. You can ask around, but this is not as reliable as the written record of appeals.

Those who prefer arbitrations believe that arbitrations are fast and less expensive. They may be faster, but flipping a coin is faster and less expensive yet. So consider this thought experiment: would you be willing for disputes under this contract to be decided by flipping a coin? If so, then sign the arbitration clause, and specify one random arbitrator.

When an arbitration clause is used

Some clients want an arbitration clause. In a few situations, arbitration is better for the client. In such situations I add a requirement to the arbitration clause: the arbitrator selected must be a retired Judge.

If the arbitrator is a retired Judge, then you get an experienced decision maker. This greatly increases the quality of the process and the quality of the decision at no added expense.

If you have an arbitration experience or comment to share, please leave your comment below. And to my arbitrator friends: I am not writing about you.

– E. J. Simmons

Forcing Efficient 30(b)(6) Deposition Testimony

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For a link to a notice of deposition form, scroll down to the end of this post. A deposition under Federal Rules of Civil Procedure 30 (b) (6) requires an adverse organization to provide a  witness who will give up its information on the specified topics.

“FRCivP 30 (b) (6) Notice or Subpoena Directed to an Organization.
In its notice or subpoena, a party may name as the deponent a public or private corporation, a partnership, an association, a governmental agency, or other entity and must describe with reasonable particularity the matters for examination. The named organization must then designate one or more officers, directors, or managing agents, or designate other persons who consent to testify on its behalf; and it may set out the matters on which each person designated will testify. A subpoena must advise a nonparty organization of its duty to make this designation. The persons designated must testify about information known or reasonably available to the organization. …”

However, an adverse witness is motivated to not cooperate and to neither know nor remember anything specific. This makes the discovery process less efficient, more costly, and maybe incomplete.

To lessen the chance of stalling and delaying deposition answers (not that any witness would ever try to stall or delay), I have found it helpful to send a letter with the notice of deposition commenting on the company’s obligation to investigate and review the topics of a 30(b)(6) notice of deposition.

The following is an example letter to send after conferring with adverse counsel about the topics, and setting a convenient time. With the letter I include a one-page summary of the law. Sophisticated adverse counsel will understand that the letter is intended to be a concise way to persuade the Judge, if a discovery dispute breaks out.

[Letter to: Attorney for adverse party]

Re: [case name], US District Court No. ______

Dear Ms. ______:

We have discussed deposition scheduling a number of times. The deposition of XYZ Company is scheduled for _______ 200_ .

To clarify the topics I wish to cover, I will depose XYZ Company under FRCivP 30(b)(6) on these topics:

1. Safety standards used or referred to by XYZ Company that relate to _______. I expect that this will include [specific references]. In any event the witness will need to testify about sources XYZ Company refers to for safety standards. The witness will need to be familiar with the specific application of the relevant standards to [specifics of case].

2. As pertaining to [a relevant contract]: what XYZ Company understood in 200_ to be its obligations for [relevant performance] as to [relevant circumstances], [relevant place], [relevant communications with others], [relevant knowledge], and [relevant action].

3. Other information about the [relevant incident].

Please note that, under FRCivP 30(b)(6), XYZ Company has an obligation for the designated witness to investigate and prepare to testify on the designated topics. See enclosed quotation from Calzaturficio S.C.A.R.P.A. V. Fabiano Shoe Company, Inc., 201 F.R.D. 33 (D.Mass 2001), and cases cited therein.

As is my practice, a formal Notice of Deposition under FRCivP 30(b)(6) is also enclosed.

Yours truly,

E. J. Simmons

Encl

………………………………………….

The following quotation is from Calzaturficio S.C.A.R.P.A. V. Fabiano Shoe Company, Inc., 201 F.R.D. 33, 36:

Indeed, the law is well-established that a 30(b)(6) deponent does have an affirmative obligation to educate himself as to the matters regarding the corporation.

Rule 30(b)(6) explicitly requires [a company] to have persons testify on its behalf as to all matters known or reasonably available to it and, therefore, implicitly requires persons to review all matters known or reasonably available to it in preparation for the 30(b)(6) deposition. This interpretation is necessary in order to make the deposition a meaningful one and to prevent the “sandbagging” of an opponent by conducting a half-hearted inquiry before the deposition but a thorough and vigorous one before the trial. This would totally defeat the purpose of the discovery process…Preparing for a Rule 30(b)(6) deposition can be burdensome. However, this is merely the result of the concomitant obligation from the privilege of being able to use the corporate form in order to conduct business…[A company] does not fulfill its obligations at the Rule 30(b)(6) deposition by stating that it has no knowledge or position with respect to a set of facts or area of inquiry within its knowledge or reasonably available….

United States v. Taylor, 166 F.R.D. 356, 362 (M.D.N.C., 1996), aff’d 166 F.R.D. 367 (M.D.N.C., 1996). See also Poole ex rel. Elliott v. Textron, Inc., 192 F.R.D. 494, 504 (D. Md., 2000) (“Upon notification of a deposition, the corporation has an obligation to investigate and identify and if necessary prepare a designee for each listed subject area and produce that designee as noticed.”); Dravo Corp. v. Liberty Mut. Ins. Co., 164 F.R.D. 70, 75 (D. Neb., 1995) (citing Marker v. Union Fidelity Life Ins. Co., 125 F.R.D. 121, 126 (M.D.N.C., 1989)) (“If the persons designated by the corporation do not possess personal knowledge of the matters set out in the deposition notice, the corporation is obligated to prepare the designees so that they may give knowledgeable and binding answers for the corporation.”); Buycks-Roberson v. Citibank Fed. Savings Bank, 162 F.R.D. 338, 343 (N.D. Ill., 1995)(stating that the duty to present and prepare a Rule 30(b)(6) designee goes beyond matters personally known to that designee or to matters in which that designee was personally involved.); Securities and Exchange Commission v. Morelli, 143 F.R.D. 42, 45 (S.D.N.Y., 1992) (citing Mitsui & Co. (U.S.A.), Inc. v. Puerto Rico Water Resources Authority, 93 F.R.D. 62, 67 (D.P.R., 1981)) (“under Rule 30(b)(6), the deponent ‘must make a conscientious good-faith endeavor to designate the persons having knowledge of the matters sought by [the party noticing the deposition] and to prepare those persons in order that they can answer fully, completely, unevasively, the questions posed…as to the relevant subject matters.'”); ABA Civil Discovery Standards (Aug. 1999), § 19(f) (“Counsel for the [corporation] should prepare the designated witness to be able to provide meaningful information about any designated area(s) of inquiry.”).

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For an example of a notice of deposition under FRCP 30 (b) (6), see the Depositions page. This form is based on a notice that was served in a personal injury case involving major injuries resulting from failure to follow safety standards. .

Preparing for Trial – Direct Examination

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Once I heard a trial lawyer making a speech. He recalled a time when he had to testify in a civil action. This lawyer was experienced, intelligent and motivated to testify clearly, completely and truthfully. But while he was testifying on direct examination, answering questions asked by his own lawyer, he could not tell for sure what facts his own lawyer wanted. “I had no idea where we were going.”

If an attorney-witness cannot read the examining attorney’s mind, imagine the difficulty facing the average witness. More nervousness, less familiarity with the elements.

A colleague of mine once was trying a case. The adverse party was being examined by the adverse attorney. The adverse attorney became visibly exasperated with his own witness for failing to give the desired answers. Of course, the witness had a common shortcoming, that is, lack of mental telepathy.

Presenting a guessing game is the wrong way for a witness to testify. You may wish to consider the most effective way to prepare a witness for direct examination.

The best method I know of is to write out, for each witness, each question to ask, and each expected answer, in the order for trial testimony.

The expected answers come from prior interviews with the witness. Preparing the question and answer memorandum forces the trial attorney to organize. You will decide which facts to introduce from which witness and in what order.

Moreover, you should write into this question and answer memorandum the exhibits to be introduced, and at what point from what witness. In a State court case, with no pre-admission of exhibits, the foundational questions can be organized and written into the memorandum. Potential objections are eliminated.

Some attorneys believe that this is too much work. I hope that all my opponents think this.

A few days before trial, when meeting with a witness, you will use the question and answer memorandum to go over the testimony. Inevitably, you discover weak spots, confusion over what you are asking, and the need to improve. After revision, you go over it again.

No witness will testify completely in accordance with your expectation. But your presentation will be much smoother and complete. Your witness will be nervous, but much less so since every question on direct will be a question the witness has heard before.

Since examples are useful, another post will provide an excerpt from a memorandum as used in actual testimony, with names changed to preserve confidentiality. (We won the prayer for relief.)

Cross Examination is Easy, Direct is Difficult

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Cross-examination is easy because it is a conflict between the lawyer and the witness. It is easy to hold the factfinder’s interest. It is easy to force the witness to concede some points. If the cross-examiner is skilled, the testimony will result in memorable answers that help the case.

Direct examination often results in lost ground because of wasted opportunities.

A United States District Court Judge was recently complaining about the lack of trial experience among attorneys. He had been surprised to observe a specific illustration of the problem, more than once, during trials before him in his Court. The Judge had sustained an objection of “leading”. The hapless attorney trying to carry out direct examination did not know what to do next. That is, the attorney did not know how to ask a non-leading question.

Why such a fundamental lack of ability? The Judge’s theory was that lots of depositions are taken. Depositions are almost all cross-examination. Objections are not much of an issue, since there is no Judge to sustain an objection. So an attorney can practice for a long time, but have witness examination experience mostly in depositions. Then, in trial, the attorney does not know how to examine a witness on direct without leading questions.

The Judge’s comments were about fundamental competence. It seems to me that a more difficult problem is boredom. Can there be a more boring experience than hearing “What happened next?” and the witness drones on.

In a business trial, the boredom problem is worse than in a personal injury trial. This is why I try to use as much visual stimulation as possible. This leads to my First Rule of Direct Examination: The only purpose of a witness on direct examination is for foundation of and comments about an exhibit.

In another post I will comment on the best practice to prepare for direct examination. This witness preparation should follow use of the best method I know to validate the themes of the presentation. Neither method is used as much as should be.