Dinosaur Litigation in a Virtual World
With the advent of computers in the court room trial preparation and advocacy have often times been replaced by graphic recreation or simulation, and power point presentations that tell a story for the attorney, or make an argument, or display evidence.
Once documents have been admitted into evidence, the benefit of the power point presentation is the ability to summarize the evidence in a manner that provides visual reinforcement for the jury as the attorney speaks. The detriment of a power point presentation is that the computerized presentation can take away from the effective advocacy of the attorney.
The purpose of this paper and presentation is not to dissuade attorneys from taking advantage of technology that is available for trial. Rather, the question is what do we do if (1) we are not sufficiently adept with computerized presentations, or (2) we are litigating a case that may not warrant the time and expense necessary to hire a reconstructionist to do a graphic recreation of an event important to our case. How do we provide visual reinforcement and oral advocacy in a manner that is just as entertaining and cohesive as a power point presentation.
“All the world’s a stage, and all men and women merely players. They have their exits and their entrances, and one man in his time plays many parts, his acts being seven ages.”
Shakespeare must have been thinking about trial attorneys when he wrote this in As You Like It. A trial is a play with the parties and witnesses playing the role of the main characters. The attorney however is more than a mere narrator. The attorney advocate determines whether the play is a comedy or tragedy.
The attorney advocate will pull emotion from the jury, direct the jury through the various acts of the play and hopefully lead the jury to an ultimate conclusion that fits with the attorney’s theory of the case.
Texas Rules of Civil Procedure and Local Rules of Collin County
Embrace the Pretrial
Most of our judges in Collin County effectively use pretrial procedure for a means of directing the trial presentation for the jury. Pretrials are governed by Rule 166 of the Texas Rules of Civil Procedure, Section 21.001(a) of the Texas Government Code and Rule 7(a) and (b) of the Texas Rules of Judicial Administration.
Rule 166 states that the purpose of the pretrial is to narrow the issues and aid in the final disposition of the case. Griffin v. Wolfe, 626 S.W. 2d 895 (Tx. App. Ft. Worth, 1981, no writ). The pretrial can, however, do much more than simply narrow the issues. The pretrial can be used to organize your presentation for the jury.
What can the court do and not do at a pretrial?
A court cannot rule on an ultimate contested issue at a pretrial. Converting the pretrial to a trial on the merits is a violation of due process. Murphill v. Ziegelmeir 937 S. W. 2d 493 (Tx. App. Houston [1st Dist. 1995 no writ).
A court can set a time line for managing the case including:
- a) setting a trial date subject to notice requirements under Rule 245 of the Texas Rules of Civil Procedure.Loffland Bros. V.. Downey822 S.W. 2d 249 (Tx. App. Houston [1st ] 1991
- b) setting a deadline for a amendment of pleadingsTexas Commerce Bank v. Lebco Contractors, Inc.865 S.W.2d 68 (Corpus Christi, 1993 writ denied)
- c) setting discovery deadlines
- d) setting a date for hearing pending motions and dilatory pleas
- e) requiring submission of summary of facts and stipulated evidence. TRCP 166(d) and (f)Koslow v. Mackie,796 S. W. 2d 700 (Tx. 1990)
- f) identifying applicable law and legal issues. TRCP 166 (g) (j)
- g) identifying testifying experts along with subject matter and setting date for exchanging report.
- h) setting a date for exchange of witness lists including potential rebuttal witnesses if they can be reasonably anticipated before trial.
- i) Requiring parties to mark and exchange exhibits and stipulate to authenticity and admissibility of evidenceTRCP 166(l) 192.5©(2) British A.M. Ins. Co. v. Houston 877 S.W. 2d 347 (Tx. App. Houston [1st 1994 writ denied) (held that videotape not listed on exhibit list properly excluded at trial
- j) Requiring parties to file written objections to exhibits.TRCP 166(m)Owens Corning Fiberglass Corp. v. Malone 972 S.W. 2d 35 (Tx. 1998)
While at first blush you may oppose the concept of preadmission of exhibits, the preadmission of exhibits will enable you to arrange your exhibits for the jury that reinforces the story you are trying to convey. Many judges in Collin County will allow preadmission of exhibits upon request and leave ruling on objections to the time of trial. In a recent wrongful death jury trial, we preadmitted over 140 exhibits into evidence prior to the actual trial date. The effect of preadmission was to save at least a full day of trial time resulting in all evidence being submitted to the jury in three days. More importantly the jury was not lost through the procedure of establishing predicates for admissibility of exhibits that would inevitably be admitted without objection.
How do you get a pretrial
Under the Rules of Civil Procedure a Court may schedule a pretrial on its own initiative. However the Court does not have to schedule a pretrial nor can a party force a court to conduct a pretrial. Taiwan Shrimp Farm Village Assoc. v. USA Shrimp Farm 915 S.W.2d 61 (Tx. App. Corpus Christi, 1996 writ denied). If you want a pretrial request it. The Discovery Control Plan in your pleading does not necessarily control whether the court will give you a pretrial. You can still have a pretrial under a Discovery Control Plan Level 2 case. Your pretrial request should state specifically what you want the court to consider at the pretrial conference. Your pretrial order must also be in writing in order to be effective. Palacio v. Winters 26 S.W.3d 734 (Tx. App. Corpus Christi, 2000).
What is the impact of a pretrial
Once a court enters a written pretrial order, the court cannot disregard its own order. The court cannot admit testimony of expert witnesses or other witnesses if the Court’s pretrial order requires an exchange of witnesses and experts and the person sought to be called is not listed. Nor can the court admit an expert’s testimony if a report is not furnished pursuant to a pretrial order. Dennis v. Haden, 867 S.W. 2d 48 (Tx. App. TexArkana, 1993 writ denied).
The court can also order sanctions for non compliance including striking the pleadings of the offending party. Koslows v. Mackie 796 S.W. 2d 700 (Tex. 1990)
The pretrial order concerning objections to exhibits will not preserve error during the trial without proper bill of proof. Clark v. Trailways Inc. 279 S.W. 2d 644 (Tex. 1989). In Collin County, the District Judges have typically allowed preservation of objections by preadmitting by agreement exhibits and reserving the making for objections to the time the objectionable exhibits are offered into evidence.
Evidence to the Jury
Now that you have your exhibits pre admitted at pretrial and expert reports exchanged you can marshal your exhibits in a manner that fits the legal theory you are trying to factually establish. When deciding how to use your exhibits keep in mind what can and can not go to the jury room at the time of Deliberations.
A jury is not allowed to take deposition testimony into the jury room. Allowing a jury to take depositions into deliberations is reversible error. Harvey v. Culpepper 801 S.W.2d 596 (Tx. App. Corpus Christi, 1990 no writ). However, a chart that summarizes testimony is admissible and may go to the jury during deliberations. Speier v. Webster Coll. 616 S.W.2d 6176 (Tx..1981). Often times in a jury trial you will receive questions from the jury where they will request that the record be read back concerning testimony during trial. They typical response from the court is “You should use your best efforts to recollect the testimony and continue your deliberations. By creating a summary chart of the testimony that is important to your case, you will effectively have that testimony in front of the jury during deliberations.
In the event the court you are in will not allow summary testimony to be taken to the jury room (assuming the exhibit is not admitted) you may still use the summary as a jury aid during your closing statement. A good practice tip is to pull out a few quotes from the testimony, enlarge those and use them for reinforcement during your argument. Keep in mind that individuals receive information either visually, orally or emotionally as their primary manner of receiving data. The use of jury aids in the manner described here will serve to reinforce your statements to those individuals that typically require visualization in order to remember data.