January 16th, 2014

Will Video Testimony Be Misleading? (The Future of Law?)

Apple Insider Image

Apple Insider image of how the patent would work to morph past images in with the present ones for transmission.

Video testimony has been held by many to be a big improvement over a paper transcript. You can see facial expressions, assess the tone of voice, and evaluate delays in answering. Bill Gates learned that lesson years ago with his much-maligned video deposition with the “long pauses before [he] answered the simplest of queries…[and] the hint of contempt in his voice.”

But the “what you see is what you get” belief that we have in video may change, if the testimony is electronically transmitted.  Video testimony in the coming years might not be quite as reliable as we’d like to think.

Will it be our eyes that are deceiving us? No. It may be technology. Is this the future of law?

As per Apple Insider, in discussing a new patent issued today regarding video transmission over low-bandwidth, we may be in for a subtle but significant change. This is the problem that Apple seeks to fix:

Currently, video communication over cellular data is spotty in many areas due to bandwidth restrictions and existing wireless technology. In some cases, features like Apple’s FaceTime are nearly unusable due to dropped frames, extremely low-resolution images and poor audio quality.

How does Apple want to deal with that? By taking sample frames from the call that had been used previously and morphing them into the live conversation, to give the illusion of a constant video stream. In other words — and this is the part that would interest lawyers and judges — the visual cues from the speakers’ faces may not match with the words that are actually being used.

Again, as per Apple Insider:

The U.S. Patent and Trademark Office on Thursday published an Apple invention that replaces frames dropped during a low-bandwidth FaceTime call with pre-recorded or doctored images, thereby creating the illusion of a seamless feed.

Sometimes we see problems in movies and shows where the “sound is off” — as a fraction of a second misalignment messes with our brains. But in the Apple solution, they will simply morph old frames in so that it becomes seamless. The facial expressions you see might be for a different set of words that were previously used.

Is this a problem today? No. Will it be in five years? Check back with me then.


September 23rd, 2013

Apple, Expectations and Trial Strategy

Apple 5sA week ago Apple unveiled its new iPhone 5s and some Apple-bashers had a field day criticizing it for only being incrementally better than the one released a year earlier, the iPhone 5.

And this morning Apple released blockbuster sales of over 9 million iPhones sold since the actual release three days ago.

Why the sharp difference between initial reviews and blockbuster sales. And why is this important to jury trials?

Because those that were bashing were comparing it to the model released just one year ago. But most folks buy two-year contracts when they get an iPhone. Thus, the target audience for the phones was those that bought phones two years or more ago, not the few who want to upgrade every year.

And since there is a huge difference between the one two years ago and the just released, it has tapped a substantial market.

This is all about figuring out where to set the comparison bar when deciding if something is good or bad.

If at trial you want to compare an injury to normal, you have to first figure out what that normal is and set that bar firmly in place.

Last week at trial, a defense expert decided to move the “normal” bar on the range of motion, so that when he showed plaintiff’s injuries to the jury, they didn’t look as bad as they actually were. (I hope to blog on that testimony in the future.)

Firmly forcing a witness to declare what normal is, and locking the person in who is going to give that opinion, is a critical and often overlooked piece of the puzzle that constitutes evidence. It is all about expectation and doing a proper comparison.

My two rupees on your trial tip for the day.


February 7th, 2013

The Wrong Lawyers for the Job? (BigLaw Trial Attorneys Get Bench Slapped) – Updated

Dow is the defendant. But if the jurors fell asleep during plaintiff’s opening, Dow will win regardless of what they did, or did not, do.

Really, you just don’t see this too often. Lawyers do get called out for incompetence sometimes by judges, but it doesn’t really happen too often right after opening statements, and with BigLaw coming in from out-of-state to play on the field.

But sometimes you just might not have the right lawyer for the job. And in the well of the courtroom, in front of the jury, the right lawyer for the job is the one that can tell a coherent story. Not put the jury to sleep.

And these guys put them to sleep. Literally. In the first inning of the game.

The playing field of this dispute is federal court in Kansas City. The issue involves, according to the  Kansas City Business Journal that broke the story, alleged conspiracies to fix the prices of urethane chemical products known as polyether polyols that are used to make a variety of consumer goods.

The sides in this dispute must have felt that local attorneys didn’t know how to tell a story about price fixing, so they brought in the out-of-state big guns.

For the plaintiffs was Michael Guzman of Washington-based Kellogg Huber Hansen Todd Evans & Figel. This is an 83-attorney firm that one website comically calls a “boutique.”

The firm must be good, because, as per the firm’s website, they are absolutely awesome. The roster of attorneys:

includes former Assistant United States Attorneys, Assistants to the Solicitor General, and attorneys who have held senior positions in the White House, Federal Communications Commission, and the Department of Justice, including a former Assistant Attorney General and Counselor to the Attorney General. Almost all of our lawyers have served as law clerks to federal judges, and nearly one-third have clerked for Supreme Court justices.

Hey! I’m impressed!  OK?

On the other side, for the mighty Dow Chemical was David Bernickof mighty New York-based Boies Schiller & Flexner.  Are they impressive? You bet…just read their website copy:

While best known for landmark cases such as United States v. MicrosoftBush v. Gore, and In re Vitamins, we represent some of the largest and most sophisticated organizations in the world when the results matter most. In less than a decade, we have won and saved our clients billions of dollars in trials, arbitrations, and settlements. We have been described by The Wall Street Journal as a “national litigation pow­er­­house” and by the National Law Journal as “unafraid to venture into controversial” and “high risk” matters.

OK, OK, you are all now just as suitably impressed as I am.

First Guzman made “a lengthy opening statement for the plaintiffs.”  Then Bernick spoke for half an hour, handed it off to his colleague Hamilton Loeb of D.C. firm Paul Hastings (800+ lawyers) for another half-hour, then returned to Bernick for another 30 minutes.

Since I wasn’t in the courtroom I will defer to U.S. District Judge John Lungstrum who was, and who presumably has seen his fair share of trials. Was he as impressed with the lawyers as I was after reading their magnificent website copy? Would I be writing this piece if the jurors were enthralled with the legal skills on display?

OK Judge, take it away…and tell us how quickly the jurors lost interest in the story and fell asleep:

“Honestly, if I had to do it over again, I’d give you each half as much time as I did. I told you all again this is your case, you guys do it however you think you want to do it, but you have people at the beginning of opening statements who are taking notes, who were engaged and who were interested. About halfway through the plaintiffs’ opening statement, those people tuned out. Other people literally went to sleep for a while. I did not call them on it because that’s not evidence; it’s not the law.

Ouch. Not kind to plaintiff’s counsel at all. But don’t worry, he had words for defense counsel also:

“It’s the responsibility of counsel, if you want people to hear your opening statement, to present it to them in a way that keeps their attention. Defendants’ opening statement rambled all over the ballpark. I suspect nobody on the jury’s got any idea what they think the evidence is going to be except it’s going to be vaguely different from what the plaintiffs have in mind.

“Now I’m saying this to you all going forward, you owe to your clients and to this jury not to just do everything you possibly can do because somebody says you can, and I really regret giving you an hour and a half each for opening. … The closing arguments in this case will be considerably shorter than what I originally thought would have been the case because neither side evidenced the ability to focus themselves on what they’re supposed to be doing.”

I’m willing to bet that Kansas City has a lot of very fine trial lawyers, and I bet that many of them know how to tell a story without putting people to sleep or rambling all over the place.

I know nothing at all about this case, but this: If jurors fall asleep during plaintiff’s opening then the plaintiff loses. End of story; the case is already over. That shouldn’t happen in the first inning of a ballgame.

The plaintiff has the burden, and if the jurors don’t care about the case, then that burden will be impossible to meet.

Updated, 2/24/13 — Well, now about that? Despite being ripped by the judge for putting the jurors to sleep and rambling in opening, the jury returned a $400M verdict against Dow Chemical (out of one billion dollars in damages sought).

And that means I was wrong. So if I saw a judge rip lawyers in a similar fashion, I would hedge my bet, right? No, I wouldn’t.  As once was said, the race does not always go to the swiftest or the battle to the strongest, but that’s the way to bet.


March 9th, 2012

Mitt, My Dad and Witness Prep

Romney at Daytona 500, February, 2012 (Rainier Ehrhardt/AP)

When I was a puppy lawyer my father gave me this advice about witness preparation: Never tell a client what not to say. Our conversation went like this:

Dad: If you tell a witness what not to say, the witness will blurt it out.

Me: Huh?

Dad: If you tell the witness, “Under no circumstances should you ever say Rumpelstiltskin” then the deposition will go like this: What’s your name? Rumpelstiltskin.

As Mitt Romney can attest, my dad was waaaay ahead of his time. In an article by Liz Goodwin on Yahoo! News (Why Mitt Romney can’t shut up about his money) she finds Romney has the same problem that my dad focused on when it comes to talk of wealth. Romney’s obviously been told, again and again, not to discuss it. And out it comes, time and again:

Over the space of a few months, private equity millionaire Mitt Romney has cavalierly bet a Republican rival $10,000 during a debate, enthused about the joys of “being able to fire people who provide services to me,” told Detroit voters that his wife drives “a couple of Cadillacs,” and said at the Daytona 500 that while he is not an ardent fan of the sport, he does have “some great friends that are NASCAR team owners.”

Goodwin delves into similar cases, from literature to baseball, about individuals stridently trying to avoid saying/doing something, and the problems inherent on focusing the mind that way.

This matters, of course, in the context of litigation if a lawyer tries to over-prepare witnesses by telling them what to say or not say, as opposed to finding out what happened and dealing with that. The witness, in the uncomfortable spot of a court proceeding and directed to do something that might not come naturally, will sometimes blurt out what the lawyer tried ever-so-hard to stop them from saying.

Goodwin explains:

This is because our brain is always helpfully looking around for the very worst things we could do or say in any given situation, and then actively trying to suppress them with other, more appropriate thoughts and actions. The process has two parts–the unconscious, automatic monitoring of our forbidden thoughts, and the conscious, effortful way in which we distract ourselves from it. So when a person is trying not to think or talk about something–say, to pick an example at random, his personal wealth–he needs to both monitor the forbidden thought and distract his mind with other thoughts. This is called the “ironic process,” and it usually works, otherwise we would always be blurting out our secrets and insulting our loved ones.

Thus, today’s lesson in law: Beware the danger of trying to demanding a witness say or not say something, as opposed to finding out what happened. That, of course, is in addition to the ethical issues of having a witness fail to tell the truth.

There’s a lot more in the article, and it has strong relevance to the subject of witness preparation.



February 1st, 2012

Trial Prep and Twitter

Last week I was on trial — at three days it was the shortest one I ever had — and my trial prep included this: Deleting any Twitter messages that were political. My first post on Twitter was thee years ago, January 29, 2009. Since then I have made about 800+ posts.

So the few tweets on politics that I’ve made were taken down. None were overboard on anything — regular readers know that ad hominem attack isn’t exactly the way I write — but why take the chance?

The problem is that no matter how many times a juror is told to avoid looking up the people involved, some folks can’t help themselves. They might look up the lawyer. They might see the Twitter stream.

Despite what people think of New York as a bastion of liberalism, we have plenty of conservatives. Our recent past had Rudy Giuliani as NYC mayor and George Pataki as Governor. It doesn’t really matter if you are on the left or right of the political aisle, it is guarnateed that out of a jury pool some will have differing opinions.

And if you are the party with the burden of proof in a personal injury case (me) then you can’t afford to piss anyone off. This is particularly true in a presidential election year when politics dominates the news more so than at other times.

The same problem exists for web sites, of course.  I’ve always cognizant of this (see, I Hate My Website from 2009) and try to govern myself accordingly. While there are some folks who take down their websites and replace them when on trial (or so I have heard) that isn’t something I’ve ever done.

Since no one generally cares about any tweet that is more than 10 nanoseconds old, this isn’t really an issue. But one person might care, that being the juror. So down they come.

Of course, the opposite might be true for criminal defense lawyers. With the burden on the prosecution, they need only convince that one lonely holdout. They may have a completely different view of keeping contentious political commentary up in place.