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JDSupra & Legal Technology Learning

Hello again friends,

From trial presentation to video depositions, the only constant in legal technology is change.  Constant fluctuation in equipment, best practices, and strategy require responsible legal consultants, like Legalsized, to continue learning and searching for the next great advantage.

The team at Legalsized has been a huge fan of JDSupra.com for years. The beauty of the site is its collection of case studies, articles and reports created by expert users.  While we are all quite familiar with “user driven content” it’s still all to rare in the legal community.

JDSupra.com allows us to learn from our trial consultant colleagues and to share the knowledge we have gained through hundreds of trials.  Are you interested in articles on the proper attire for a video deposition?  Are you looking for tips on a killer trial PowerPoint?  It doesn’t matter what your legal question is, JDSupra contributors are waiting with the answer.

Now you know….and knowing is half the battle.

Don’t Provide Visuals in Trial? Jurors will get them.

From: http://www.cbc.ca/canada/nova-scotia/story/2009/05/19/novascotia-serbu-murphy.html

JUROR TOOK PHOTOS OF CRIME SCENE

A Nova Scotia defence lawyer whose client was convicted of breaking and entering is alleging that a juror created evidence not presented at trial.

Kelly Serbu believes his client, Marcel Shaun Murphy, was convicted last week based on 10 photographs a juror collected outside of court.

“Obviously, someone from the jury had those photographs — one or more,” Serbu told reporters outside Nova Scotia Supreme Court on Tuesday. “It’s my opinion that this is a direct violation of the court’s direction that they’re not to do any private investigation.”

Murphy was convicted last Tuesday of breaking and entering into a warehouse in Dartmouth’s Burnside industrial park in the spring of 2006.

The next day, both the defense and the Crown were called back into court after a clerk logging evidence discovered an envelope containing 10 photographs of the two warehouses at the heart of the case.

Neither lawyer had seen the images before.

In court Tuesday, Serbu called for a mistrial, saying the 8×10 photos were not entered into evidence. He said it appears a jury member took the photos, had them developed, then brought them into the jury room, breaching an oath to consider only the evidence presented at trial.

Serbu said one of the photos had a handwritten message on a label, while nine others had computer-generated labels identifying the location.

The Crown didn’t introduce any photos of the warehouses during the trial, he noted.

Prosecutor Peter Craig told reporters that one set of photos showed the warehouse where property was taken from. The other, he said, centered on the warehouse where the property was stored.

Craig said he doesn’t know where the images came from, though he said they were in the jury room.

“We’re still trying to sort out all the details, but this a highly unusual situation,” Craig said. “I think the most significant fact that still needs to be determined is whether or not the jury saw these photographs, and that’s obviously something that people will be trying to find out.”

Craig said he has informed Halifax Regional Police.

A police spokesman, Const. Brian Palmeter, said officers have yet to determine whether a criminal investigation is warranted.

Though Serbu requested a mistrial, Justice Nick Scaravelli ruled that the matter is out of his hands and he can’t declare one because the case is over. He said the matter will have to be sorted out on appeal.

Serbu said his client hasn’t made a decision, though he’s confident an appeal will proceed.

MCBA VLP & Sandra Day O’Connor

For more than a year, Legalsized Inc. has had the pleasure of being the preferred legal video partner to the American Bar Association Judicial Division.  (Click on the ABAJD link to review video clips)  Recently, state and regional bar associations have followed the ABA’s lead and requested the Legalsized team record both basic CLE events and their most important annual events.

On Monday May 4th, 2009 the Maricopa County Bar Association Volunteer Lawyers Program had their annual award ceremony luncheon.  The event honored the Arizona attorneys who generously give their time and talent to benefit those less fortunate in legal troubles.  In this rough economy, the need for Pro Bono volunteers will continue to grow.

The guest of honor and keynote speaker was former Supreme Court Justice Sandra Day O’Connor.  Hon. O’Connor carries herself with an uncommon level of intelligence, empathy and charisma.  Her words to the crowd of more than 300 focused on the responsibility of attorneys to give back to their community and educate the next generation.  It’s clear the “most influential woman in American judicial history” is not done making her mark on this world.

Legalsized Inc. would like to congratulate all of the Volunteer Lawyer Program award winners and thank the multitude of VLP attorneys and legal industry volunteers.

A Firm Take on Settlement Video Documentary

Source: http://tinyurl.com/cknmqk

A settlement video can be a powerful tool to communicate the facts of a case . Certainly, new computer and video technology has put settlement videos within reach of most trial lawyers.

There are plenty of good reasons to add settlement videos to your arsenal of offensive weapons. Settlement videos give you a chance to communicate directly - without your message being filtered by the defense attorney - with the defendants’ representatives, insurance adjustors or claims committee who make the money decisions. Settlement videos do an excellent job demonstrating a client’s catastrophic injury, including disfigurement, paralysis, and brain damage. Just consider for a moment whether it is more persuasive to send over a pile of medical reports in a written demand or to show on video the effort it takes your client to get dressed in the morning and the frustration that goes into trying to button a shirt, for example? And when well done, I believe settlement videos assist you in settling cases at the top of the settlement range you had set and maximizing the recovery for your client.

You’ve heard the old adage, “Seeing is believing”? Well, a settlement video gives the decision-makers a chance to see what sort of presentation your plaintiff and key witnesses make and how well they might perform at trial. The decision makers can see for themselves the kind of case the plaintiff could put on at trial.

Settlement videos are not the same as “day-in-the life” videos. Day-in-the-life videos are intended as evidence for trial and as such, are subject to restraints that settlement videos are not. Day-in-the-life videos depict the plaintiff’s daily routines and illustrate the ways in which those daily routines have been affected by his or her injuries. Certainly, this same kind of footage can and should be included in a settlement video but the difference is that a settlement video can be much more wideranging in content and presentation.

Settlement videos can cover issues involving both liability and damages. For example, the lawyers at King, Bryan & Wiley, who have been using settlement videos in their practice for about ten years, use their settlement videos as the opening statement at the actual mediation itself. Their settlement videos don’t shy away from complex liability issues but rather deal with opposing counsel’s arguments head-on. Bob Bryan says they will often include taped interviews with key witnesses, police officers or even their liability experts. Key documents, video of the scene, news reports, or excerpts from the videotaped depositions of the defendant’s witnesses can also be woven into this type of settlement video.

Visual Learners See Words

Visual Learners Convert Words To Pictures In The Brain And Vice Versa, Says Psychology Study

ScienceDaily (Mar. 28, 2009)

A University of Pennsylvania psychology study, using functional magnetic resonance imaging technology to scan the brain, reveals that people who consider themselves visual learners, as opposed to verbal learners, have a tendency to convert linguistically presented information into a visual mental representation.

The more strongly an individual identified with the visual cognitive style, the more that individual activated the visual cortex when reading words.
The opposite also appears to be true from the study’s results.

Those participants who considered themselves verbal learners were found under fMRI to have brain activity in a region associated with phonological cognition when faced with a picture, suggesting they have a tendency to convert pictorial information into linguistic representations

The study was recently presented at the 16th Annual Cognitive Neuroscience Society Meeting.
Future research based on the findings from this study may be able to determine whether cognitive styles are something one is predisposed to or can learn. Depending on the flexibility with which one can adopt a style, educators could cater to one style over another to improve learning.

Curious Jurors Google Up A Mistrial

From Connecticut Law Tribune - March 23rd 2009

By PAUL SUSSMAN

As we all know, the Internet has made research ridiculously easy. A world of information is as close as the nearest laptop, iPhone or BlackBerry. Most of the time, that’s a good thing. But sometimes – say, during a trial, in a courtroom, jury room or courthouse cafeteria – it can cause problems.

Last week, the Web was buzzing about a New York Times story that focused, in part, on a recent federal trial in Florida in which the defendant was charged with illegally selling prescription drugs through an Internet pharmacy.

After eight weeks of arguments, the jury was deliberating. Then one juror contacted the judge to say that another had admitted doing research on the case on the Internet, directly violating the judges’ time-honored instructions about not reading about the case in newspapers, watching television reports, etc.

Upon questioning by U.S. District Judge William Zloch, the juror confessed to the outside research. But that wasn’t the end of it. The judge then questioned the remaining jurors. Eight more acknowledged Googling up information on the case, or scanning Wikipedia or other online sources.

The judge declared a mistrial. “We were stunned,” defense lawyer Peter Raben told the New York Times. “It’s the first time modern technology struck us in that fashion, and it hit us right over the head.”

The Times reported on at least two other cases, one in Arkansas and one in Pennsylvania, in which ill-timed Twitter tweets and Facebook postings by jurors have prompted calls for mistrials.

‘Dream World’

The newspaper story, and the seeming trend toward trials derailed by technological forces, drew swift and strong reaction. But the consensus is not what you might have expected.

Instead of taking jurors to task for ignoring instructions, Web sites and bloggers that focus on technology, the law and other topics chided the legal system for being slow to deal with the modern world.

“The fault isn’t with the technology, or with the jurors,” scolded bMighty.com, which offers technology advice to businesses. “It’s with an arrogant, controlling legal system living in a dream world that ignores fundamental changes in the way people access information…

“Technology has altered the processes and power structures in business, in culture, in communities, in socializing, and in just about every area of life you can think of. But the courts are still living in 16th century England, which is starting to cause some big problems…”

The site TUAW.com (short for The Unofficial Apple Web Site) wrote: “Many judges didn’t give a thought about jurors using their phones to do research until recently, but our do-it-all phones are likely going to force a complete rewriting of the rules.”

The InfoWorld Web site reported, tongue in cheek, that judges might soon give the following instructions: “Ladies and gentlemen of the jury, you are hereby instructed to ignore all technological innovations of the past 25 years. In fact, ignore everything newer than the rotary phone. No, wait, make that the telegraph. Or the printing press…”

Lest you think that only techies and geeks judged the courts to be out of touch, posters on the American Bar Association Web site – whom one would presume to be lawyers – were just as snippy. One suggested that the judge in the Florida case was either “naïve or woefully behind the times.”

Another ABA poster opined that: “Every juror is surfing the Web on his BlackBerry to find info on the case even when they are in deliberation. You have to know that going in and make sure you win the PR battle in the press as well as your case in the courtroom.”

Some observers suggested that, in an era when avoiding jury service has turned into a middle-class art form, it’s almost refreshing to learn there are still some jurors who are smart enough and motivated enough to use technology in an attempt to seek the truth.

“A jury of my peers understands the Internet and probably has a pretty powerful phone in his or her pocket,” wrote the author of the InfoWorld commentary. “That’s whom I’d want to see in the jury box. And if they Google me and find out all the nasty things I’ve written, well, I’m screwed, I guess.”

Looking For Answers

So what should courts do about the phenomenon? One of the ABA posters suggested that “we probably ought to do away with the rule [banning jurors from doing their own research] because no one follows it anyway.” That sort of sentiment frightens legal scholars, who say that the adversarial system depends on both sides being able to scrutinize and challenge all facts that go before the jury.

Some say the obvious answer is to take smart phones, BlackBerrys and other such devices away from jurors when they enter the courthouse. Others note, however, that this does nothing to stop non-sequestered jurors from doing research on their own time.

Another recommendation is that judges specifically mention the Internet when they warn jurors to not read about, or do any research on, the case they are hearing. But even respected legal minds suspect that admonition will fall on deaf ears.

“It’s really impossible to control it,” Douglas L. Keene, president of the American Society of Trial Consultants, told the New York Times. “There are people who feel they can’t serve justice if they don’t find the answers to certain questions.”

One thing everyone agrees on is that many more cases will be affected by curious jurors, and that serious discussion is needed to figure out what to do about it. “How can you learn more about this issue?” quipped TUAW.com. “Google it on your iPhone, of course.”

New York Times: Supreme Court Enters Youtube Era

The Supreme Court is entering the YouTube era.

The first citation in a petition filed with the court last month, for instance, was not to an affidavit or a legal precedent but rather to a YouTube video link. The video shows what is either appalling police brutality or a measured response to an arrested man’s intransigence — you be the judge.

Such evidence vérité has the potential to unsettle the way appellate judges do their work, according to a new study in The Harvard Law Review. If Supreme Court justices can see for themselves what happened in a case, the study suggests, they may be less inclined to defer to the factual findings of jurors and to the conclusions of lower-court judges.

In 2007, for instance, the Supreme Court considered the case of a Georgia man who was paralyzed when his car was rammed by the police in a high-speed chase. The chase was recorded by a camera on the squad car’s dashboard, and that video dominated the court’s analysis.

The federal appeals court in Atlanta had ruled for the driver, Victor Harris, at a preliminary stage in the case, saying a jury should decide whether his driving warranted the aggressive measures taken by the police.

“Harris remained in control of his vehicle, slowed for turns and intersections and typically used indicators for turns,” the appeals court said of the video.

But that is not how most of the justices saw it.

Justice Antonin Scalia said at the argument that the video showed “the scariest chase I ever saw since ‘The French Connection.’ ”

Justice Stephen G. Breyer said that he was not sure how to think about the appeals court’s interpretation and that he might “end up with Chico Marx’s old question.” That is, Justice Breyer said, “who do you believe — me or your own eyes?”

When the decision in the case, Scott v. Harris, was handed down, only Justice John Paul Stevens dissented. With understated sarcasm, he highlighted the new role his colleagues had taken on.

“Eight of the jurors on this court,” Justice Stevens said, “reach a verdict that differs from the views of the judges on both the district court and the court of appeals who are surely more familiar with the hazards of driving on Georgia roads than we are.”

The court posted the video on its Web site. “I suggest that the interested reader take advantage of the link in the court’s opinion and watch it,” Justice Breyer said in a concurrence.

Three law professors accepted that invitation and made it the basis of an interesting study published in January in The Harvard Law Review. They showed the video to 1,350 people, who mostly saw things as the justices did. Three-quarters of them thought the use of potentially deadly force by the police was justified by the risk Mr. Harris’s driving posed.

But African-Americans, liberals, Democrats, people who do not make much money and those who live in the Northeast were, the study found, “much more likely to see the police, rather than Harris, as the source of the danger posed by the flight and to find the deliberate ramming of Harris’s vehicle unnecessary to avert risk to the public.”

Video creates a danger, the study said, of “decision-making hubris” by judges.

Many judges do not seem to understand, said Jessica Silbey, a law professor at Suffolk University in Boston, that video is not categorical or irrefutable proof like DNA but only a partial, volatile and dangerously persuasive account of what happened.

But video can also bring an encounter to life in a way a paper transcript never will.

Consider the video at the heart of the petition filed last month asking the court to hear another case about what may have been excessive force by the police.

This one, also recorded by a patrol car’s dashboard camera, shows Jesse D. Buckley just after he was stopped for speeding on a rural Florida road. Being pulled over is no one’s favorite experience, but it completely undid Mr. Buckley, who said in an interview that the prospect of paying a $175 ticket was just too much given his personal and financial troubles at the time.

“I just cried,” he said. “I needed to cry. I just couldn’t stop crying.”

He refused to sign the traffic citation, and he was arrested. Hands cuffed behind his back, he sat down on the ground by his car, sobbing.

Jonathan Rackard, a sheriff’s deputy, tried to lift Mr. Buckley to move him into the patrol car, but he failed. Then he threatened to use a Taser stun gun.

“I don’t care anymore,” Mr. Buckley responded. “Tase me.”

Over the course of a couple of minutes, Deputy Rackard applied three five-second 50,000-volt electrical shocks from the Taser. Between the second and third shocks, he walked to his patrol car and called for backup. Mr. Buckley stayed where he was.

A second officer soon arrived, and the two officers placed Mr. Buckley into the patrol car.

Mr. Buckley pleaded guilty, paid the ticket and sued over the episode. “I still have scars on my back and some on my chest,” he said recently.

Deputy Rackard’s lawyers, in an appeals court brief last year, said the use of “moderate nondeadly force in the face of spirited, though nonviolent, resistance was a reasonably proportionate response.”

“Deputy Rackard should not have to struggle to lift a heavy object like Buckley,” the brief added, “and run the risk of a work-related injury.”

Mr. Buckley’s lawyers say that there are more than 100 federal court decisions on the use of Tasers and that the lower courts need guidance from the Supreme Court.

Michael R. Masinter, a lawyer for Mr. Buckley, said that “video evidence is inherently more compelling than recorded testimony.” But he did not claim that it is always better evidence, only that it works on the brain in a different way.

“It’s less a question of law,” he said, “and more one of how we have evolved as a species.”

Attorneys to Video Record Jury Selection

Video depositions aren’t even standard operating procedure for litigation (they should be) and a few progressive attorneys are taking advantage of other legal video possibility.

From the Tuscon Citizen:  http://tucsoncitizen.com/blog/view/1118

Christopher Payne had been set to go on trial beginning this week, but the judge moved it to Feb. 17 to give defense attorneys a little more time to prepare.

Usually, the pretrial hearings have been attended by Payne’s parents, a couple of reporters and the remaining few people being court staff or people helping the defense or state.

Today, there were four spectators. One man said he knew Tyler and Ariana Payne and wanted to see jury selection. Three other men also thought jury selection began today.

This case was one of several that led to an investigation into Child Protective Services practices.

If Payne is convicted, prosecutors are seeking the death penalty.

The spectators left today before the hearing was over, one saying it wasn’t interesting enough to stay (and I wondered, “How interesting do you think jury selection is?”).

Assistant Public Defender John O’Brien, who represents Payne, argued strenuously today that he wanted Judge Richard Fields to allow the defense to videotape jurors being questioned.

O’Brien said that he and his co-counsel, Rebecca McLean, wouldn’t be able to take in all the nuances of prospective jurors’ answers in “voir dire” questioning and the videotape would help them with inflections and gestures they might miss. O’Brien said the technology was “appropriately necessary” to protect Payne’s constitutional right to a fair and impartial jury.

READ MORE: http://tucsoncitizen.com/blog/view/1118

Lie To Me - From the Courtroom to Fox

Legalsized Inc recommends this interesting article.

From the New York Times

LOS ANGELES — Paul Ekman has been picking out liars for about 40 years. That uncommon skill might have been ripe for a new kind of Fox reality show. Instead it is the basis for the latest Fox crime series. That show, “Lie to Me,” which makes its debut on Wednesday night and stars the well-regarded British actor Tim Roth, has some of the standard elements of a television police procedural.

But what makes the show distinctive — and able to draw what Fox executives reported as high marks from test audiences — is its source in Dr. Ekman’s research.

That work concentrates on the meaning of human facial expressions, body movements and speech patterns, which Dr. Ekman, a psychologist, has researched and cataloged. (He once received an infamous Golden Fleece Award from William Proxmire, the former Democratic senator from Wisconsin who denounced the spending of federal funds on silly experiments. Dr. Ekman won for studying facial expressions of tribesmen in New Guinea. But he said that he had since proved his point: that there is a universality to human reactions, no matter what the culture or language.)

Dr. Ekman has worked with governmental organizations from the F.B.I. to the Transportation Security Administration, teaching how to identify people who are under emotional duress or trying to deceive.

In “Lie to Me” those techniques, often illustrated by real-life examples like Mike Tyson and Bill Clinton (“I’ve been a collector of celebrity liars,” Dr. Ekman said in an interview), form the spine of the investigative work undertaken by Mr. Roth’s character, who is not, Dr. Ekman took pains to emphasize, based directly on him.

For one thing, the character is British. (Mr. Roth has retained his British accent, unlike other British actors, notably Hugh Laurie of “House,” who have Americanized their accents for roles.)

But Dr. Ekman also pointed out that the fictional psychologist does some things that he himself would never do as a professional — like use deception to secure information.

In the show’s premiere Mr. Roth’s character lies to a person being interrogated. “I completely disapprove of this,” Dr. Ekman said, “even though the Supreme Court has cleared it.”
He also said the show’s writers did not always follow his exact analysis of the meaning of movements and expressions. The first episode, for example, makes much of a person’s rubbing his nose, saying it indicates proof of lying.

Not true. “I pointed it out to them, but they liked it so much they didn’t want to take it out,” Dr. Ekman said. One of his duties as a consultant on the series will be to write a column each week for the Fox Web site that will note what in the latest episode is real science and what is, he said, “junk science.”

Read the entire article

New Tech in Schools

We thought this technology was particularly interesting.  It deals with mosquito (aka bumblebee) frequencies and there application.  Adults over 30 can’t here the noise and the applications are interesting.  Could it this technology affect the courtroom before long?-

——————

From National Public Radio:
The war between teens and authority figures has a new — or old — front: ears. British shopkeepers tired of teenage loiterers have turned to the Mosquito teen repellent, which emits a high-pitch frequency that most teenagers can hear — but not most adults.

But now teens have struck back against the Mosquito: They are using the same sound to communicate without adults’ knowledge.

At issue is a text-message ringtone that emits the same pitch as the Mosquito. Using it, students can learn about a new message while they’re in class — where they’re not supposed to be using their cellphones. Most of their teachers can’t hear the alert.

Inventor Howard Stapleton, creator of the Mosquito teen repellent, says only a few people over age 30 can hear the Mosquito’s sound. He and his 16-year-old daughter Isabel talk to Melissa Block about the sound, which has been dubbed “Teen Buzz.”

From the NY Times:

The technology, which relies on the fact that most adults gradually lose the ability to hear high-pitched sounds, was developed in Britain but has only recently spread to America — by Internet, of course.

The cellphone ring tone that she heard was the offshoot of an invention called the Mosquito, developed last year by a Welsh security company to annoy teenagers and gratify adults, not the other way around.

It was marketed as an ultrasonic teenager repellent, an ear-splitting 17-kilohertz buzzer designed to help shopkeepers disperse young people loitering in front of their stores while leaving adults unaffected.

The principle behind it is a biological reality that hearing experts refer to as presbycusis, or aging ear. While Miss Musorofiti is not likely to have it, most adults over 40 or 50 seem to have some symptoms, scientists say.

While most human communication takes place in a frequency range between 200 and 8,000 hertz (a hertz being the scientific unit of frequency equal to one cycle per second), most adults’ ability to hear frequencies higher than that begins to deteriorate in early middle age.

“It’s the most common sensory abnormality in the world,” said Dr. Rick A. Friedman, an ear surgeon and research scientist at the House Ear Institute in Los Angeles.

But in a bit of techno-jujitsu, someone — a person unknown at this time, but probably not someone with presbycusis — realized that the Mosquito, which uses this common adult abnormality to adults’ advantage, could be turned against them.

The Mosquito noise was reinvented as a ring tone.

“Our high-frequency buzzer was copied. It is not exactly what we developed, but it’s a pretty good imitation,” said Simon Morris, marketing director for Compound Security, the company behind the Mosquito. “You’ve got to give the kids credit for ingenuity.”

British newspapers described the first use of the high-frequency ring tone last month in some schools in Wales, where Compound Security’s Mosquito device was introduced as a “yob-buster,” a reference to the hooligans it was meant to disperse.