TRIAL CALL

James D. Crosby – Business Trials & Arbitrations – jcrosby@hcesq.com

Juries in this media age expect to see visuals and digital presentations at trial. Is this expectation giving big firms with significant litigation budgets an advantage at trial? Is it pricing small firms and solo litigators out of all but the smallest cases?

This week I chaired a meeting of the Civil Litigation Section of the San Diego North County Bar Association (www.bansdc.org). The presenter was with a consulting firm that assists trial attorneys with visual presentations. As he demonstrated various multi-media presentations and animations, the implication was that today’s juries — and even judges — expect digital visuals at trial.

The questions posed by the audience, mostly small firm litigators, centered on cost. Sure, the demos were nifty, effective animations, but how much do they cost?

The rise of technology – computers, cheap software, connected notebooks and tablets, smart phones, and now social media – has leveled the playing field. Today small firms and solo practitioners can compete with big firms like never before.

The one caveat is in this area of visual presentations at trial. Big firms, well-heeled clients and big litigation budgets still hold the edge. Larger firms can afford IT personnel to do the work, or their clients can afford to hire the costly consultants to do it for them. They can put on a better TV show at trial. This presents a problem for smaller firms and clients with limited resources. It also gives larger firms a marketing edge. If a firm can offer its IT expertise to prepare effective trial visuals, that firm surely has an edge in marketing significant cases.

With this one exception, smaller firms and solos are generally becoming more competitive. What are their options? They can simply choose to try cases like they did 10-15 years ago, without the bells and whistles. But that could get risky with today’s juries. Or, they can hire the same consultants the big firms do. Finally, they can purchase trial presentation software, invest the time to learn it, or hire a paralegal to learn it. But these solutions increase overhead and decrease the bottom line.

There are no easy answers. Will smaller firms and solos continue to be squeezed in bigger cases by large firms, well-heeled clients and ample budgets? It will require creative thinking by small firms/solos and newer cost-effective solutions from vendors to counter this big firm competitive edge.

One thought on “Use of Visuals and Digital Presentations At Trial – Pricing Out Small Firm/Solo Litigators?

  1. Ted Brooks says:

    I enjoyed reading your post. I can see the concern for the sense of a potentially unfair position in the courtroom, based upon budget. I can say that it is certainly true that larger cases merit spending more to litigate, but will add that even in smaller matters, one can take advantage of some technology and/or professionally-created demonstratives, for as little as a few thousand dollars. Giving more citizens the opportunity to literall have their day in court is one of the main reasons behind AB 2284, the Expedited Civil Jury Trials Act. I’ve written an article for Consumer Attorneys of California, but it’s not online yet. As soon as it is published, I will add it to my blog.

    While nobody works for free, there are partial support options that most providers are willing to offer. Another thing to bear in mind is that many of these costs may be recoverable by the prevailing party.

    In any event, I would generally recommend getting assistance, rather than having counsel attempt to be a graphic designer, trial presentation expert, technology expert, etc. All of these things can demand a great deal of an attorney’s time and attention. A Trial Lawyer’s time is best spent trying the case, not the technology.

    For a couple of articles related to this topic, see:

    http://trial-technology.blogspot.com/2011/01/ab-2284-expedited-civil-jury-trials-act.html

    and

    http://trial-technology.blogspot.com/2010/06/adr-and-art-of-high-speed-trial.html

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