It is a deposition question that too often surprises lawyers and corporate-witness deponents.  Upon return from a water or lunch recess, the deposing lawyer asks the witness: “So, tell me what you and your company’s lawyer discussed during the break?”  Can the deposing lawyer ask that?  Does the defending lawyer have an attorney-client privilege objection?

In-House and outside counsel focus their deposition preparation on reviewing the notice-of-deposition topics, selecting the most appropriate corporate employee for the deposition task, and preparing that witness with the boilerplate deposition ”dos and don’ts.”  And while many lawyers defending depositions see every break as an opportunity to consult with the witness, they neglect to consider whether these in-deposition consultations are privileged and, importantly, to prepare the witness how to answer an out-of-the break question about those consultations.

Unfortunately, there is no uniform rule on whether lawyers may have privileged conversations with witnesses during deposition breaks.  Some jurisdictions prohibit all during-the-break consultations except when necessary to assert an evidentiary privilege.  Other jurisdictions reject this draconian rule for the more practical approach of permitting break-time discussions except when a question is pending.  In my recent article, Protecting Attorney-Corporate Witness Consultations During Deposition Breaks, published by Inside Counsel, I explore the various rules on this issue and provide practical tips for preparing lawyers and witnesses for this inevitable happening.

You may access the article at this link.  How does your jurisdiction–state or federal–handle this situation?  Place your comments in this post–perhaps we can gather the local rules, judicial rulings, and local practices so that others may find answers in a single forum.

As originally published at presnellonprivileges.com 
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Rule 403 of the Federal Rules of Evidence governs the admissibility of demonstrative evidence at trial, assuming that evidence is determined to be relevant under Rule 401. Pursuant to Rule 403, a demonstrative exhibit may be excluded from the courtroom if its probative value is substantially outweighed by its unfair prejudice, its cumulative nature or if it is confusing or misleading.


Does the exhibit (1) relate to a piece of admissible substantive proof; (2) fairly and accurately reflect that substantive proof; and (3) is it sufficiently explanatory or illustrative to assist the jury? These are the questions used to establish a proper foundation for use at trial.

In addition, the exhibit should convey what it is designed to convey. For example, a computer enhanced photograph should not make an accident scene look better or worse than it actually was. Similarly, the demonstrative evidence should convey representational accuracy. The scale, dimensions and contours of the underlying evidence should all be accurately depicted. Today more than ever, the creative use of software permits trial counsel to manipulate demonstrative exhibits in ways often difficult to spot.

In an excellent article titled, “5 Demonstrative Evidence Tricks and Cheats to Watch Out For,” Ken Lopez, fouinder of A2L Consulting, provides a useful guide for spotting misleading charts and explains why they are misleading. Lopez discusses five such tricks (which are somewhat difficult to convey without having all of the graphics Lopez uses in his article to illustrate his points):

1. The Slippery Scale. This trick involves setting the the vertical y-axis on a graph in a narrow range that does not include “0.” By not including “0,” it is easy to make a relatively small change look enormous.

2. Compared to what? If the trial lawyer seeks to demonstrate a small change on a percentage basis, all he needs to do is carry the horizontal x-axis so that time is literally “on his side”

3. The Percentage Increase Trick. How many times have you heard someone talk about a 200% or 300% increase and really wonder what they mean? 

4. Tricking the Eye with 3D Charts. Flat charts with no depth or 3D aspect are harder to trick the viewer with, so always scrutinize your opponent’s charts when a third dimension is introduced. On a pie chart, when a slice of the pie (e.g., the percentage of customers injured by a purportedly defective product) is closer to the viewer, it looks much bigger.

5. Misleading Emotional Imagery. Putting an image of a homeless person in the background of a chart about increasing homelessness is designed to evoke emotion. Similarly, showing an oil-covered bird in the background in an explanation of how much oil was spilled in an accident does not add to one’s understanding of the amount of oil spilled, but seeks to trigger an emotional response in the viewer.

Perhaps the single most important Rule 403 objection you can make in a jury trial is the exhibit’s capacity to generate an emotional response such as pity, revulsion or contempt. Under these circumstances, the capacity to evoke emotion far outweighs the value of the evidence on the issues before the court and exclusion is appropriate.

As originally posted on January 9, 2013 in Toxic Torts Litigation Blog
 
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What does Rocky Mariciano, one of the greatest heavyweight boxers of all time, have to do with evidentiary privileges? Plenty, as it turns out, for it was a libel case arising from Mariciano’s comments following his famous 1952 fight against Jersey Joe Walcott that solidified the then-evolving theory that the government-information privilege applies in civil actions.


The Government-Informant Privilege

The government-informant privilege protects from compelled disclosure the identity of persons, or informers, who supply information about legal violations to the appropriate law-enforcement personnel. Despite the name’s implication, the privilege belongs to the government, not the informer, but protects informers from retaliation or retribution and encourages citizens to communicate their knowledge of violations of law to government officials.

The privilege is qualified, meaning that it may be overcome upon a sufficient showing of need by the defendant. In a landmark decision, the Supreme Court in Roviaro v. United States, 353 U.S. 53 (1957), explained that the privilege must “give way” when disclosure of the informer’s identity is relevant and helpful to the defense or is essential to a fair determination of the cause. And to determine whether either of these standards is met, courts must balance the public’s interest in keeping the informer’s identity confidential against the defendant’s right to prepare a defense.

There is no fixed rule on when disclosure is required; courts must make the assessment on a case-by-case basis,and have sole discretion to determine whether the evidence justifies disclosure.  The court must consider several factors when balancing the competing interests, such as the crime charged, the possible defenses, significance of the informer’s testimony, and danger to the informant if his identity is revealed.

Does the Privilege Apply in Civil Actions?

The government-informant privilege is routinely asserted in criminal cases, with the typical situation involving a criminally accused seeking to discover the identity of the informer who provided police with the tip that led to the accused’s arrest.  But the question arises whether this privilege may be applied in civil actions and, if so, whether the same standard governs the privilege.

The situation can arise in two situations.  First, a plaintiff may seek disclosure of an informer’s identity during a civil action against the government, such as a civil rights action under 42 U.S.C § 1983.  Similarly, a party involved in a civil action against another private party may seek third-party discovery from a law-enforcement agency.  Second, the question arises whether private entities may assert the government-informant privilege to preclude disclosure of a whistleblower, or one who reported misconduct up the corporate chain of command in addition to a regulatory enforcement agency.

In the latter situation, most courts hold that the privilege does not apply where the whistleblower’s identity is sought from the private entity, but in the former situation, most courts hold that the privilege applies where the informer’s identity is sought from a governmental agency.  And a case involving one of the greatest fights–and knockout punches–of Rocky Marciano’s career illustrates the point.

Rocky Marciano & the Greatest Punch of All-Time

With a record of 49-0, Rocky Marciano is the only boxer to retire as heavyweight champion with an undefeated record and is recognized as one of the greatest boxers of all time.  Marciano won his title on September 23, 1952 when he defeated reigning champion Jersey Joe Walcott by a Round 13 knockout.  Marciano later described the knockout punch as “the best punch I ever landed,” and boxing historians generally agree that Marciano’s punch was one of the greatest punches in all of boxing history. 

As originally posted on November 27 on Presnell on Privileges
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On June 25, 2012, the California Supreme Court set forth new rules regarding the discoverability of witness statements in Coito v. Superior Court of Stanislaus County, No. S181712 (Cal. 2012).  The issue before the court was what work product protection, if any, should be accorded two items: (1) recordings of witness interviews conducted by investigators employed by defendant’s counsel, and (2) information concerning the identity of witnesses from whom the defendant’s counsel obtained statements.        

The California Supreme Court concluded that witness statements procured by an attorney are entitled, as a matter of law, to at least qualified work product protection.  Regarding the level of work product protection, the court held that the witness statements may be entitled to absolute protection if the attorney resisting discovery of the statements makes a preliminary showing that disclosure would reveal his or her impressions, conclusions, opinions, or legal research or theories.  The opposing party can overcome this privilege only by demonstrating that denying discovery will unfairly prejudice her in preparing her claim or will result in an injustice. 

As to the identity of witnesses from whom defendant’s counsel obtained statements, the court held that such information is not automatically entitled to absolute or qualified work product protection.  To invoke the privilege, the party resisting discovery must persuade the trial court that disclosure would reveal the attorney’s tactics, impressions, or evaluation of the case.  If defendant could do so, such information should be afforded absolute protection.  If, on the other hand, the defendant persuades the trial court that disclosure would result in opposing counsel taking undue advantage of the attorney’s industry or efforts, the information should be afforded qualified protection. 

 

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In addition to their work for their own clients in their own areas of expertise, some professionals also serve as expert witnesses in litigation.  They employ their knowledge and experience in their chosen field to analyze issues and render opinions for one or more parties to a lawsuit.  Like in any other aspect of their work, a professional serving as an expert can act negligently and make mistakes.  Sometimes these mistakes cause litigation problems for the party the professional has been retained to assist.  What happens when the professional is sued for his or her work as an expert?  What are the public policy implications of holding an expert witness liable for mistakes made in the litigation or conversely rendering the witness immune from suit?

A professional generally owes his or her client a duty of care to use the same amount of care, skill and proficiency commonly used by ordinarily skillful, careful and prudent professionals in the professional's community. See, e.g., Michaels v. CH2M Hill, Inc., 257 P.3d 532, 542 (Wash. 2011); Murphy v. A.A. Mathews, a Division of CRS Group Engineers, Inc., 841 S.W.2d 671, 674 (Mo. 1992).  Clearly, a professional retained to perform work as an expert witness in litigation owes his or her client a duty of care – a duty that can certainly be breached.

Some jurisdictions, however, have held that an expert witness's actions and testimony performed during the course of litigation are privileged.  In those jurisdictions, that privilege derives from the doctrine of witness immunity.

The Doctrine of Witness Immunity

As the Missouri Supreme Court has noted: "An immunity is a freedom from suit or liability.  The underlying premise of all immunities is that 'though the defendant might be a wrongdoer, social values of great importance require[d] that the defendant escape liability.'" Id. (quoting Prosser and Keeton on Torts 1032 (5th ed. 1984)).  The immunity for witnesses in judicial proceedings from liability for damages related to their testimony originated in English common law.See Briscoe v. LaHue, 460 U.S. 325, 332 (U.S. 1983)(citation omitted).  The basis for the immunity was the concern that, if subject to subsequent liability, a witness may self-censor his or her testimony – either by altering their testimony for fear or liability or failing to appear to testify at all. Id.  This is not to say courts have not considered the potential for harm resulting from false testimony.  Rather, courts have noted that the reliability of a witness's testimony "is ensured by his oath, the hazard of cross-examination and the threat of prosecution for perjury." Bruce v. Byrne-Stevens & Associates Engineers, Inc., 776 P.2d 666, 667 (Wash. 1989) (citing Briscoe, 460 U.S. at 332).

The immunity first arose in the context of defamation actions based on statements made by witnesses or other parties in the context of a court proceedings. Murphy, 841 S.W.2d at 675.  Different jurisdictions, however, extended the immunity in varying degrees based on the circumstances of the defamatory statement. Id. at 675-76.

Does the Doctrine Apply to Expert Witnesses?

The Seventh Circuit Court of Appeals has noted that witness immunity is particularly designed to protect and encourage disinterested lay witnesses. MacGregor v. Rutberg, 478 F.3d 790, 792 (7th Cir. 2007).   The court noted that because "they have no stake in the case and cannot be paid more than a nominal fee for testifying, [lay witnesses] would be highly reluctant to testify if the threat of a defamation suit hung over their heads." Id.  But what about an expert witness hired specifically to provide opinion testimony in a judicial proceeding?  Are they entitled to the same protection?

The Majority View Is No Immunity

The majority of courts to consider the issue in that context have held that so-called "friendly experts" are not entitled to blanket immunity for their work in preparing and communicating their opinions in litigation.  See, e.g., Marrogi v. Howard, 805 So. 2d 1118, 1128-29 (La. 2002).  InMarrogi, the Supreme Court of Louisiana analyzed whether the policy arguments used to justify the witness immunity doctrine apply in the context of a claim against an expert hired by the plaintiff in the underlying matter. It noted that the objective of encouraging forthright testimony in court "is not advanced by immunizing the incompetence of a party's retained expert witness simply because he or she provides expert services, including testimony, in relation to a judicial proceeding." Id. at 1131.

Some of the courts that have held that hired experts are not immune from suit by their client have based their reasoning on the distinction between the expert's testimony and the work leading up to that testimony.  In Pollock v. Panjabi, 781 A.2d 518 (Conn. Super. 2000), the court held that an expert witness was not entitled to such immunity, noting that the plaintiffs were not complaining about what the expert said; rather, the plaintiffs asserted that their hired expert failed to "perform work as agreed upon, according to scientific principles as to which there are no competing schools of thought." Id. at 525-26; see also Murphy, 841 S.W.2d at 680-81("These experts do not usually act solely as witnesses, but perform substantial pretrial work.").  The court held that there must be a nexus between the claimed immunity, the fact-finding function of the court and the interest in having the expert speak freely. Id. at 526.

California also recognizes the exception of friendly experts from the protection of witness immunity.  In Mattco Forge, Inc. v. Arthur Young & Co., 5 Cal. App. 4th 392 (1992), the court held in favor of the plaintiff company which had sued experts it hired to perform litigation support accounting work. The plaintiff's underlying suit was dismissed allegedly based on negligent work performed by the experts. Id. at 395-96.  In its opinion, the court raised the issue of access to the courts as a policy reason in favor of the exception. Id.at 403-04.  Citing the facts of the case before it, the court reasoned that if an expert's negligence caused dismissal of the client's suit before trial, granting immunity to that expert would not expand access to the courts. Id. at 404.

The Minority Viewpoint: Immunity For Friendly Experts

While the majority of jurisdictions to consider the issue have found that expert witnesses should not be immune from suit by their client for negligence, some courts have reasoned that the immunity should attach in such situations.  The most prevalently cited opinion on this side of the issue is Bruce v. Byrne-Stevens & Associates Engineers, Inc., 776 P.2d 666 (Wash. 1989).  In that case, the Supreme Court of Washington held in favor an engineer sued by a client for negligently rendering opinions on damages issues in prior litigation.  In addressing many of the same policy issues discussed in the cases listed above, the Bruce court found that immunity of experts would encourage them to be more careful in their work and result in more reliable testimony. Id. at 670.  It stated:

Civil liability is too blunt an instrument to achieve much of a gain in reliability in the arcane and complex calculations and judgments which expert witnesses are called upon to make.  The threat of liability seems more likely to result in experts offering opinions motivated by litigants' interests rather than professional standards and in driving all but

the full-time expert out of the courtroom.

Id.  The court also discussed the alleged distinction between the expert's testimony and the work leading up to the testimony. It held that to grant immunity solely to the expert's testimony but not to the basis for that testimony would undermine the policies underlying the immunity in the first place. Id. at 672; see also Panitz v. Behrend, 632 A.2d 562, 565 (Pa. Super Ct. 1993).

Some courts have held in favor of an expert witness who has failed to provide helpful testimony to his or her client at trial, though not based on the doctrine of witness immunity.See Griffith v. Harris, 116 N.W.2d 133, 135 (Wis. 1962)(noting that "a contract [between a party and a witness] creating an obligation not only to appear but also to testify in a certain manner on behalf of a party to a lawsuit, is against public policy");Shaffer v. Donegan, 585 N.E.2d 854, 860 (Ohio Ct. App. 1990)(same); Curtis v. Wolfe, 513 N.E.2d 1139, 1141-42 (Ill. App. 1987)(same).

What About Immunity From Disciplinary Actions?

Even in jurisdictions that afford professionals witness immunity, the risk of a disciplinary action – as opposed to civil liability – may still exist.  In Kentucky State Bd. of Licensure for Professional Engineers and Land Surveyors v. Curd, -- S.W.3d --, 2012 WL 512403 (Ky. App. Feb. 17, 2012), the Court addressed the argument made by an engineer who had appealed a suspension handed down by his state's licensure board for giving dishonest testimony as an expert witness in a quiet title action.  Id. at *9-*10.  The engineer argued that subjecting experts to disciplinary action based on their testimony would affect experts' opinion and have a consequent chilling effect on the administration of justice. Id. at *9.  The Court rejected this argument, distinguishing between an expert being sued civilly and one being subjected to professional discipline pursuant to a state statute in administrative proceeding. Id.at *10.

Conclusion

While the majority of jurisdictions who have considered the argument have found no immunity for friendly experts, there is a valid position – outlined in the Bruce opinion – that immunity should apply if this issue arises in a jurisdiction that has been silent on the issue.  Because many courts have never expressed an opinion on the matter, the arguments raised in Bruce should be available to many attorneys defending professionals in this context.

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The Importance of Demonstrative Exhibits

Posted on March 20, 2012 01:49 by Blair Jones

Demonstrative exhibits are an integral part of any trial presentation.  They are the tools that help us educate the jury about products, teach them about complex technical issues and understand the evidence.  They can illustrate salient points that could be difficult to explain concisely and clearly, and can refute claims of our opponents.  If a picture is worth a thousand words, a video or reenactment may be worth millions of words.  The importance of the effective use of demonstrative aids cannot be overstated.

Demonstrative aids can run the gamut from simple drawings made on chalkboards by witnesses during their testimony to a high tech accident reconstruction video presentation.  They may consist of several blowups of significant photographs, or enlargement of pertinent documents.  The technology available today permits a wide range of possibilities, including highlighting text in a document and during testimony, enlarging and pulling out important language from a document and marking the document on the screen to direct the jury’s attention to a specific part of an exhibit.

It may be important to demonstrate how a machine works, or how technology is used.  It may be necessary to depict the biomechanical possibilities in a given accident.  Videos, computer simulations and other technologies can be very effective to bolster your case.  Timelines are a favorite demonstrative aid and with modern technology, the timeline can be “created” during witness testimony before the jury’s eyes. 

There are many creative and effective ways to create engaging demonstrative aids.  The Trial Techniques SLG will take up the topic at the upcoming DRI Products Liability meeting in Las Vegas (April 11-13).  If you have any particular questions about this topic that you would like to be considered for further discussion in Las Vegas, please post.  

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It is not surprising that plaintiffs claiming to be injured in auto accidents are often evasive about their prior medical history and treaters. In an article published by the American Medical Association, “Examinee-Reported History Is Not a Credible Basis for Clinic,” Robert Barth, Ph.D., cites numerous studies confirming that claimants tend to misrepresent their pre-claim functioning as having been “superhuman,” and distort their reported history in a fashion that potentially inflates the financial compensation for their claims.

This forces defense attorneys to utilize alternative methods in their ongoing attempt to locate the pre-accident smoking gun:

  • Jail medical records: In a recent Michigan case, a plaintiff admitted he previously suffered a closed head injury from a prior auto accident. However, he claimed that he never had seizures before a subsequent auto/pedestrian incident, and was not taking Depakote for seizures. There was a gap in his post-MVA treatment, and it was discovered he was incarcerated. Indeed, the jail medical records confirmed a year before the accident that he suffered a seizure and was taking Depakote, an anti-seizure medication, for his condition.
  • MasterTrace: This service bears fruit, particularly when a plaintiff has no prior history of health insurance, and has lived in other states. MasterTrace performs an extensive canvass profile of hospitals and pharmacies within a certain designated radius and matches up with the plaintiff’s background information to come up with potential “hits.” However, this service can be expensive, depending on the nature of the search.
  • Prescription Drug Monitoring Programs (PDMP): A PDMP is an electronic database that collects designated data on substances dispensed to a patient in the state. Thirty-seven states currently have PDMPs. On September 1, 2011, pharmacists in Florida began submitting data to the recently implemented Florida Prescription Drug Monitoring Program. Across the country, access to this information is restricted to physicians and law enforcement personnel. While defense attorneys are not able to subpoena the information, if you are lucky, the plaintiff’s treating physician may request a PDMP if he or she suspects drug abuse or doctor shopping. Generally, the physician will not supply a copy of the PDMP in a standard subpoena unless requested, or if you happen to come across it during a review of the actual file in a doctor’s deposition. If you do land such a report, it may provide an abundance of information, including prior treaters and pharmacies, and demonstrate evidence of pre-accident drug abuse.
  • Veteran Administration Records: Do not skim over the fact that a plaintiff served in the military 40 years ago. He or she may still be treating and receiving prescriptions from your local VA hospital. Further, if a plaintiff is receiving a pension from the VA, he or she periodically has to undergo a disability determination, and fill out paperwork. It is always compelling to see what the plaintiff tells the VA, as compared to Social Security Disability, workers’ compensation, and plaintiff's own treaters during the identical time frame.
  • Health Insurance Cards: Somewhere in every treater’s medical record, hospital’s intake sheet, or hidden deep within a prior auto accident claim file is a copy of plaintiff’s health insurance card (if he or she has one). If located, these health insurance records may provide a precise history of all prior hospital, doctor and pharmacy visits.

A plaintiff is not going to hand you his or her pre-accident history on a platter, so expect to do some extra digging. With enough persistence, you may ultimately discover a wealth of information that could undermine the plaintiff’s credibility and case.

Robert Abramson is an associate in the law firm of Kopka, Pinkus, Dolin & Eads in Farmington Hills, MI. He specializes in first-party, third-party and uninsured motorist claims in Michigan. Mr. Abramson is a member of DRI's Young Lawyers and Insurance Law Committees.

 

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The U.S. Supreme Court in Shute v. Carnival Cruise Lines, 499 U.S. 585 (1991) held the Shutes, who were injured on a Carnival Cruise ship in waters off Mexico, must file suit in Florida pursuant to the forum selection provision printed on the back of their ticket.   The Shutes filed suit in their home state of Washington.  The cruise ship departed from California.  Shute is still one of the most far reaching holdings enforcing adhesion-like forum selection provisions.  The Shutes also had a strong argument that they lacked notice of the forum selection/choice of law provisions.  

In the recent running aground of the Italian Costa Concordia operated by Costa Crocier, which is controlled by Carnival, the ship departed near Rome.  Approximately 120 United States citizens were on board and two may still be missing.  With respect to notice of the forum selection and choice of law provisions, information is much easier to obtain now than it was when Shute was decided.  For example, Carnival now posts its ticket contract online.  Carnival’s contract includes a mandatory arbitration provision as well as a forum selection clause, limits on liability, and restricted statute of limitations periods.   Costa Crocier also posts their ticket contract online.  The Costa contract includes forum selection, arbitration and choice of law provisions at Section 2.    

For claims involving personal injury or death, the Costa contract includes a forum selection clause for Broward County, Florida for cruises that depart from, visit or return to a U.S. port.  In contrast, U.S. port related economic loss claims are subject to an arbitration provision.  Under the Costa contract, any cruise that does not depart from, visit or return to a U.S. port, all claims must be filed in Genoa, Italy, and Italian law applies.  The Costa contract also includes a jury waiver provision.  

When a district court applies a forum selection provision, it usually does so via 28 U.S.C. § 1404, whereas a state court would dismiss the case.  Italy is not a district to which a federal case can be transferred, so dismissal is likely remedy if court enforces forum selection provisions for U.S. citizen cases filed in their home state, or even in Florida.  See e.g., Albemarle Corp. v. Astrazeneca U.K, Ltd., 628 F.3d 643, 651 (4th Cir. 2010) (applying English law / federal common law to enforce forum selection clause via dismissal).  Albemarle also suggests that Costa Concordia related claims filed in the U.S. would still be analyzed under the four factor “unreasonableness” test set forth in M/S Bremen v. Zapata Off–Shore Co., 407 U.S. 1 (1972) (holding forum selection clause may be found unreasonable if “(1) [its] formation was induced by fraud or over-reaching; (2) the complaining party ‘will for all practical purposes be deprived of his day in court’ because of the grave inconvenience or un-fairness of the selected forum; (3) the fundamental unfairness of the chosen law may deprive the plaintiff of a remedy; or (4) [its] enforcement would contravene a strong public policy of the forum state.”).     

Here, proponents of avoiding Costa Crocier’s forum selection clause and choice of Italian law may argue factors two, three and four.  An analysis of Italian law related to factor three is beyond the scope of this blog post!
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Law.com has an interesting blog post about a recent defense tactic in the case of an alleged “mouse in a can of soda,” you can find the article here. Basically, the defendant is taking a scientific stand regarding the presence of a mouse allegedly sealed in a can of soda. Essentially, they are saying that a whole mouse would not be present in a sealed can, because the acid in the drink would have turned it to jelly. The beverage giant  may need to start competing with jelly and jam companies.  The position may be technically viable but it appears be a public relations nightmare. Do you think this is an effective stance? Does it do more harm than good? Let us know your thoughts.

Jobby is an associate in the Oklahoma City firm of Hiltgen & Brewer, P.C.  

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Jamie Oliver, a chef and a child advocate focused on ensuring kids receive proper nutrition through their school lunch programs as well as at home, has a television show, Jamie Oliver’s Food Revolution, showing how he changes eating habits in school districts (this season he is in Los Angeles).  In each episode, he creates a visual showing the terrible foods kids are putting in their bodies.  It’s one thing to tell kids (or their parents) that fast food and processed food is bad for them, it is quite another to create a visual showing how bad it is, and creating such a powerful visual that it convinces those kids, their parents and the audience watching the show (including myself) how bad those foods are.  In a recent episode, he filled a family’s house with all the fast food they consume in a year.  Every square inch of furniture and floor was covered.  In another episode, he filled a school bus with sugar to show how much sugar the school board permitted in the kids lunch meals over a year.  It was powerful images like those that made folks change their minds and change their behavior.

When preparing for trial, we can take a page out of Jamie’s book, and think about what visuals (whether a photograph, a diagram, an animation, or some other representation) that encapsulates our theme and does so in such a powerful manner that the image we create carries through the trial, into the deliberation room and turns the jurors’ hearts and minds toward our view-point and toward our position.  Keep a file folder in your office drawer where you include pictures, images and ideas you clip from magazines and newspapers.  These images may later serve you at trial.

Being that it is Monday, my partner Craig Salner has his weekly tip for young lawyers.  This week he discusses the importance of getting involved with social networking.  You can find his post at http://csalner.wordpress.com/.

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