The Rockford Litigation Lawyer : Rockford Business Litigation Lawyer & Attorney : Tim Whitham : Schlueter Ecklund Law Firm : Illinois Corporate Law & Tort Commentary

During this time of year, I don't know about you, but I enjoy a white, snowy Christmas in my part of the country. I enjoy getting together with family, buying presents for my kids, seeing a child's face on Christmas morning when they see the presents under the tree and the overall optimistic atmosphere of the season. Yes, I said "optimistic."

Watch the myriad of "Christmas" or "Holiday" programs that come across your television this season. The stories are varied, classic and just plain fun to watch. (I can't help but watch a Charlie Brown Christmas over and over again). What is common to each story at this time of year is the ending. Each ends with everyone "happy," the situation resolved, or just plain a tear jerk er that leaves you satisfied there is some good in all of us.

Now, what does all of this have to do with Litigation? Well, think about the stories we try to tell to the juries. What story do we try to relate? What is our goal? First, we try to paint a picture or tell the story that shows how our client is really the party who should win this case. Then we try to persuade that the evidence supports our client. Then we finish by telling the story based on the "facts" of the case. This model is for both the prosecution and the defense of a case.

So, at this time of the year, I ask the real question every juror is asking of you (the attorney or client) - what is the true story? I am not going to go into a recitation of Linus from the Peanuts (even though I do agree with the story). But, I think if you look at all the "holiday" specials, you see one theme that yours and my jurors like - good wins, people are overall good, that we all want the best for our lives not just this time of the year, but all year.

So now, our goal is to present the facts of our case to jurors so they will decide the "good" that is to come by their verdict. Not an easy task no matter what time of the year it is. The real question the juror is facing from all the perspectives of the witnesses is "what is the real story?"

Enjoy your Holidays! Have a Merry Christmas and Happy New Year!

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It is always of interest to me to come across a case like this one. Mike Fauss' article in the New York Law Journal  "Felony Conviction Reversed due to Lawyer who Slept During Trial"  brought it to my attention. As I have instructed students in the various areas of law, they can't fathom an attorney sleeping during a trial. I can't imagine it either. It appears an attorney in New York has done so in People v. Irizarry.

I am so nervous, wound up or however you want to express it, as I prepare for a trial and then deliver during a trial, I can't imagine sleeping in court. I admit I am worn out after a trial, but I make sure I am paying attention to the questioning of witnesses and the arguments of opposing counsel.

This case also shows what can happen when evidence is "inadvertently" allowed back to a jury that was not presented to them in trial. A couple of good lessons to be learned by all.

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Now ladies and gentlemen of the bar, a judge's perspective on presenting evidence to a jury. While the ideas are not earth shattering, there is no better teaching method than repetition and no better teacher than a judge. The Illinois State Bar Journal re-published this article in its June Issue:

In her article, Making Evidence Meaningful, which appeared in the May 2009 issue of ISBA's Civil Practice and Procedure Section newsletter, Judge Barbara Crowder of Illinois's Third Judicial Circuit supplies lawyers with some helpful suggestions for presenting evidence so both juries and judges can better understand its significance.

It is an easy read with some great input on presenting your case to a jury, even if it is a bench trial.

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How will I come across to the jury? This is usually the last question a lawyer is thinking as he or she is preparing for trial. The trial attorney is to busy working on his examinations of witnesses, preparing his evidence exhibits, preparing his witnesses for testifying, etc. How the jury will react to him is the last thing he worries about. He wants the jury to believe his evidence and make a decision in his favor.

Anne Reed brings up a good point in her blog posting of June 2nd "Flavor Who?" when she observed how two lawyers handled an unexpected answer from a potential juror. How they reacted to the answer could give the jury a sense of who the attorneys as people, not just their roles in the court case.

Trial work is sometimes, okay, a lot the time, thinking and responding "on your feet." So how you respond to what occurs moment to moment in a trial will already be determined by your personal habits and personality. I also think it also shows your preparation. If you are comfortable with your case because you have prepared, you will come across as prepared, relaxed and able to work the case, while still showing proper emotion when necessary. I have watched unprepared attorneys, and myself when unprepared, come across unnatural and not be able to interact with the jury in a quality manner.

Anne does bring up a quick thinking attorney tool and that is to quick check the Internet for the answer. As more courtroom's become Internet capable, this may be very helpful.

In front of a jury, just be yourself. But, be prepared and ready for your case and for your client. Also, when you talk with jurors at the end of your case, don't just ask how they arrived at their decision, also ask how your presentation helped or hurt your case.

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Here is another sampling of articles dealing with jury issues and trial issues in the technology age. Pretty soon cell phones will not be allowed in the court houses and we will see pay phones starting to pop-up around the corridors.

Texting while on the witness stand: Mistrial Declared Over Executive's Texting from the Witness Stand by Alana Roberts

Blogging by Jurors: How Blogging Affects Legal Proceedings by Richard Rasmin and Peter Brown.

Jury Deliberations issues: Jury Deliberation in the Digital Age by Ken Strutin.

Another note on our Digital Age: Legal Duties in an Age of Digital Chatter by Stanley P. Jaskiewicz

It's hard enough to keep up with the technology I try to incorporate in my business, now we have to keep one step ahead of those we trust to decide our cases in an unbiased manner.

Good Luck!

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One of our assistants at our office just recently was called for jury duty. Knowing she worked for a law firm, she thought she would never be selected for a jury. Well, she was - for a criminal trial. After two days, the case was dismissed on Atechnicality@ that the state failed to prove their case. But, that is not the reason for this post.

She was very disappointed in the whole process and very bored. She felt that the process was slow. The listening to the facts of the case was just drug out way too long. As I listened to this, I thought, what could we do as litigation lawyers to make the experience of serving on a jury more positive, and possibly less boring.

In this day and age of quick news, immediate gratification and the ever pervasive >entertainment=, it is no wonder our jurors feel like the courtroom drama is just not happening fast enough. The court shows have the investigation, trial and conviction all over within one hour. Plus, the storyline and sequence of dialogue is much more to point and dramatic.

In order to overcome some of this we as litigators must educate our jury during the selection process of what they will see during the trial. The court, being the judge, needs to highlight to the jury their civic duty, but also what is going on in the court room even when they (the jury) are not present. This will still not overcome the mundaneness of the jury trial process. The >entertainment= point of the process must also come into play. Use of technology is now playing an important role for a jury. Gone are the days of just putting on a case without some type of visual evidence or props. Items or photos blown up and put on foam board, computer visual programs, such as Microsoft's PowerPoint or Apple's Keynote, are now becoming a vital part to the jury trial process. More courtrooms are being equipped for the use of such items. Now it is up to us, as litigators, to use the technology as best we can depending on the case.

We still cannot go all the way to just entertaining the jury. Our visuals must still abide within the legal guidelines for the case. The jury must also realize just how important this process is, even if it appears to be a long drawn out, boring process. I too sometimes find the trial boring and wish it would move along a lot quicker. But, it is still one of the best systems in the world for what it accomplishes.

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There have been several blog posts lately (see The One Simple Rule When Jurors Go Online; Twitter has a Voice in Federal Court; Twittering on the Brink of Mistrial)regarding several cases where jurors were “caught” sending messages on twitter and facebook. The texts included some references to what was going on in the trial, and what the person was doing at that time.

The consensus has been that these messages have not crossed any legal lines to excuse a juror or overturn the verdict on an appeal. But as for today, the appellate courts have not ruled on the issue.

It does bring up some interesting questions that will now have to be asked during jury selection of the prospective jurors - Do they have a twitter account? Do they have a facebook account? If they answer yes, does the court have jurisdiction or authority to access the accounts and see what is being posted on them during the trial? Can a court order a juror not to use these sites during the trial?

Some courts may have to limit the use of cell phones during a trial, especially during deliberations.

The next limit is going to be the use of laptop computers by jurors as courtrooms or public buildings are equipped with Wi-Fi access. To those of us who still struggle between the new technology and the “old” methods, these thoughts and questions at times overwhelm us. It may, if we are not careful overwhelm our system and we will lose focus on the true issues of what brought the case to court in the first place.

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The Oscars are over. The Summer feels like it is never going to get here. (At least for the Upper Midwest) We long for the summer entertainment the new wave of this years movies will bring. Who will be the next big star? What will be the next big movie? We all long for entertainment.

The experts tell me that when I teach to undergraduate college students, I should expect that there attention span will be about 20 minutes at most, even if they are older students (say in their 30's or 40's - who are that old). In light of that, I am instructed to plan my teaching around activities that “engage” the students and vary the my teaching methods so that I do not lose their attention. In other words, I need to entertain as well as teach.

Now, coming from the law school experience of three hour lectures with no Powerpoint presentations or movie clips to “entertain”, this task of education “entertainment” at times can be and is daunting. I know some of you are thinking, so what, we are not here to entertain, we are here to educate. I just recently watched the now classic movie The Dead Poets Society. I found some inspiration moving from traditional teaching to the free thinking the teacher Mr. Keating, the character Robin Williams portrays, shows his students. Engaging the students to think for themselves. Isn’t this what law school taught me, even with its traditions?

How does all of this apply to litigation? The very people we place on our juries are looking for “entertainment.” Whether it be the ‘older’ generation who expect to see Perry Mason or the younger generation who expect ‘Law and Order.’ A jury expects something more than just a lecture. Powerpoint presentations are in the increase as more courtrooms are updated to handle the technology. But how far can we, as attorneys, push the envelope? I recently came across this article that spoke of case in Philedelphia, PA where a Motion in Limine was filed to keep the defendant’s attorney from performing a magic trick in front of the jury. The defense attorney is an accomplished magician and has used magic in front of other juries. The motion was never heard due to the case settling, but it does bring up some interesting topics for discussion. I guess the question for the magic trick would be, does it aid the jury to understand the issue the lawyer is trying to convey? Or, is it just a distraction for entertainments sake to get the jury to ‘like’ your side?

This generation that will be filling our juries in the years to come, will expect more than just a lecture with maybe the occasional use of an overhead or enlarged photos attached to foam board. The question to ask as a case is prepared: What will enhance our presentation to prove our case, enlighten the jury and not just entertain?

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Should a judge be able to have ex parte communications with a jury? A recent decision by the Third District Appellate Court says, “no.” In People v. Johnson, the court held that the jury deliberations stage was still critical enough in the trial process that

“any communication between it and the trial court must be held in open court and in the defendant’s presence.”

However, the standard is that harm or prejudice must have resulted to set aside any verdict.

The Johnson case is a criminal case, thus the ramifications to a civil case is still questionable. Civil defendants do not have the same rights as a criminal defendant in a jury trial. The parties in a civil case may waive their rights to be present during jury deliberations. Some ex parte communications may be allowed as long as the court does not abuse its discretion in handling the situation.

Jury deliberations is an important phase of any trial, criminal or civil. I think it would be wise for us to pay attention to this most recent ruling and remind the court to contact us if any questions or requests are made by a jury during their deliberations.

(The court also, addressed other issues such as which party has the burden of proof and plain error, that I will not get into here)

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How to explain your case to a  jury has always raised some interesting discussion among trial attorneys. Some will tell you outright they don't trust jurors blaming them for the problems with our jury system. Others give jurors some credibility on a case by case basis, depending on if the attorney has won or lost the case. So when it comes to our case, how we explain it to the jury could make all the difference. Words do matter.

Deliberations, brings an interesting take regarding using "jargon" to explain your case to the jury. This is especially difficult if your case is complex or involves terms not common to most people. We bring a lot of "jargon" to a case. Whether it is legal terms we are use to or terms that apply to the case, such medical or patent terms.

I have always found it helpful to try to relate your facts in the case as a story. "Here is how Jane or John  got injured..." But this may be difficult to do in trademarks, or patent infringement cases. An area of law I am not as familiar. The one thing to keep in mind is to not bore your jury with example after example of the law during your closing argument. During your closing argument - Argue! Argue the facts, argue how your client was injured. Show the law and how it applies to your argument, but don't constantly read the law and add very little substance to it.

As a fellow colleague reminded me, lawyers take their cases very personally. If they lose, they blame the jury, if they win, they pat themselves on the back. However, the case really comes down to the facts. How they are presented and how your witnesses come across in court will make or break a case. Being diligent students ourselves of how to present a case to twelve strangers should always be a forethought in our minds as we prepare for trial.

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