Technology

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Atticus Never Used Powerpoint

I read all of the series of novels of Micheal Connelly's The Lincoln Lawyer series.  There are 4 books in total, and I couldn't put them down.  I read one right after another, and couldn't stop reading any of them until I finished.  I tabbed sections that I found pertinent to my everyday life as a criminal defense attorney.  Some of them were so profound, I figured the author must have done criminal defense work at some point for a living.  I found out later that he just mirrowed some attorneys at the courthouse in L.A. to gain perspective.  I have written a few blog posts about some of the contents from the books, each regarding different thoughts I had when reading each book.

One of the passages I found particularly interesting was something that Mickey Haller, the main character (played by Matthew McConaughey in the The Lincoln Lawyer movie), says when he is about to pick a jury before voir dire.

"I was strictly old school.  I liked going into the ring on my own. Minton (the lead prosecutor) could throw whatever he wanted up on the big blue screen.  When it was my turn I wanted the jury looking only at me.  If I couldn't convince them, nothing from the computer could, either."

I found this passage interesting to my own style in the courtroom for a few reasons.  I try my best to be the most prepared attorney in the courtroom.  I do not like feeling unprepared.  I feel this to be not only a disservice to my clients, but to the practice of law as well.  I also think it is indicative of what kind of lawyer I am.  I want to always communicate to whatever court I am practicing in that I will always be fully prepared.  When I was sworn in to the Federal District Court, Western District of Texas, I remember the judge who administered the oath saying that he could tolerate a lot of mistakes from attorneys.  The only thing he could not tolerate, however, was an attorney being UNPREPARED.  I remembered this, in part, because I feel that it is the same way that I would conduct my courtroom if I were a judge.

Mickey Haller's thoughts on technology in the courtroom really caught my attentinon.  As I said before, I like to try to be prepared.  To do this, I have given much though to creating a very modern powerpoint presentation to help conduct my voir dire.  It seemed to me that in this day and age an attorney might be able to use modern technology to an advantage.  After giving it much thought and deliberation, I have given up this way of thinking to a certain extent.

The only thing that I bring with me now for voir dire is my Burden of Proof chart.  I do think that this is something that aids the jury in helping understand what I believe is to be the most important legal concept they will be considering: Proof Beyond a Reasonable Doubt.  Aside from this, I do not want the minds of the jury considering anything other than me and what I have to say.

I happened to be in Austin about a month ago and randomly was able to view the voir dire presentation of a very high profile case that drew widespread media attention.  For the sake of anonymity, I will leave out names.  However, this particularly defendant was wealthy.  He had the opportunity to hire a very respected attorney, who was assisted by a person who is probably the most well-known jury consultant expert in the country.  Before it began, I was very excited to view what I thought would be something I could learn a lot from.

While I thought the voir dire presentation was okay, I thought it could have been A LOT better.  Instead of learning of things I should do, I felt I learned things that I should NOT do.

The attorney had a very advanced powerpoint presentation that I presume was created with the assistance of the jury consultant.  The attorney spent a lot of time explaning legal concepts and principles through various slides.  At certain points the jury consultant would whisper something in his ear, and he would ask another question and click to a different slide.  To be honest, the entire presentation I felt lacked energy and was dull.  Aside from the bland presentation of the subject matter, the jury panel spent the entire voir dire reading and analyzing various slides.  

Honestly, I felt I could have done much better.  For starters, I would have ditched the slideshow.  Instead of clicking through various slides communicating legal concepts, I felt the attorney was unable to have the jury focus on him, which I think is what matters most.  In my humble opinion, the jury panel should be focused on what the attorneys says, not what he shows them on a screen.

Aside from the lack of effectiveness of using powerpoint, I also feel that an attorney loses what is perhaps the most important aspect of voir dire of all.  I believe the centerpiece of an effective voir dire revolves around the ability of the attorney to begin a connection with people who will ultimately serve on the jury.  If the attorney is unable to form some sort of a connection or bond formed through the presentation of voir dire, I think they are already at a disadvantage.

After my presentation at a recent trial the prosecuting attorney said he was going to cease using his powerpoint slideshow in the future.  He commented on how I didn't use anything in this regard, and as a result he felt he lacked forming a connection with the jury after his presentation.  He felt his voir dire was impersonal, while mine was focused almost exlusively on interpersonal communication.

Another very common technique I do not advocate are slides (or boards) asking questions "On a scale of 1 to 10..."  I think this is almost useless in most cases, especially in criminal trials (not all of them, of course).  I think if an attorney had an almost endless amount of time to conduct voir dire, these could have some usefulness.  However, as any criminal defense attorney knows, time spent in voir dire can be incredibly limited.  It's not only limited on the amount of time given by the judge, but also on the attention span of the jury.  I am a firm believer that if you take too long to present information to a jury panel they will almost certainly hold it against you.  I also believe the same to be true if you are dull and boring.

I have seen other attorneys spend almost the entire time alloted for voir dire asking "On a scale of 1 to 10..." questions.  This was also the case with the trial I witnessed in Austin.  I could tell the jury consultant really thought this technique was very useful in gaining knowledge when choosing who to ultimately select for the jury.  I very humbly disagree.

I have seen many attorneys fumble over the boards when presenting, and also I've also seen technology fail.  If either of these happen it is almost certain disaster.  

Furthermore, in criminal cases especially, I believe the most fundamental aspect of voir dire is to start forming how the jury is supposed to think.  The best part of voir dire is that an attorney can almost any question they can think of (with the exception in criminal trials facts that are specific to the case itself).  To me, this means that an attorney can communicate just about anything they want.  I remember hearing Gary Trichter say once (an attorney in Houston who I believe gives one of the most effective voir dire presentations) that there is nothing that can be done to cure a "wrong-thinking" jury.  I couldn't agree more.  And this is why I spend almost my entire time trying to communicate and relate to the jury, and not on showing them flashy powerpoint presentations.  

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