Expedited Trials in California

California Code of Civil Procedure 630.01 to .08 allows for expedited one day civil trials, where each side gets three hours to present their case. There are serious waivers, such as motions for directed verdict, motions to set aside the verdict or any judgment rendered by the jury, or motions for a new trial on the basis of inadequate or excessive damages. CA CCP 630.08.

That being said, it could truly help “small” cases with very basic fact patterns.

Below please find a video podcast discussing California Expedited Trials, complete with insight from insurance defense attorneys who each won a trial recently.

Recovering Trial Presentation Costs in California

VintageCameraWomanCalifornia: The home of movie studios, Silicon Valley and innovation.

Now, thanks to the California Court of Appeal, the law embraces the reality of recovering trial presentation costs with a published opinion.

California law recognizes the prevailing party in litigation is entitled to reasonable costs that were “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation.” Overturning such an award would require an abuse of discretion. Bender v. County of Los Angeles, 2013 Cal. App. LEXIS 536, 44-48 (Cal. App. 2d Dist. July 9, 2013), citing Code of Civil Procedure sections 1032, 1033.5.

The prevailing Plaintiff was awarded by the Trial Court $24,103.75 for courtroom presentations, which included the following:

Trial Video Computer

PowerPoint Presentation and

Videotaped Deposition Synchronizing

Cost of Trial Presentation Professional for Nine Days

The Plaintiff’s closing argument included a detailed summary of trial testimony, exhibits, and a  “comprehensive evaluation of such evidence vis a vis jury instructions.”  Bender, at *45.

The Court explained the costs included creating deposition transcript and video excerpts, converting exhibits to TIFF and JPEG and the design of the electronic courtroom presentations. Bender, at *46.

ModernJury

The Defendants challenged the Plaintiff’s costs, claiming the costs were “specifically disallowed” by nearly 20 year old case law.  Id. 

The Trial Court awarded costs, because the services in question “enhanced counsel’s advocacy during the trial,” and the costs were “reasonably necessary to the conduct of the litigation.” Id. As the Court explained:

The court found both points to be so: the synchronizing of the videotaped depositions, for example, including the cost of employing a projectionist to recover and retrieve the excerpts selected by counsel, both enhanced counsel’s advocacy during trial and was reasonably necessary to the conduct of the litigation.

Bender, at *46.

Slides

The Court of Appeal upheld the Trial Court. Associate Justice Elizabeth Grimes said for the Court:

Almost 20 years have passed since Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1103 [46 Cal. Rptr. 2d 332]  was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined. In a witness credibility case such as this, it would be inconceivable for plaintiff’s counsel to forego the use of technology to display the videotapes of plaintiff’s interviews after his beating, in the patrol car and at the sheriff’s station, and key parts of other witnesses’ depositions. The court in Science Applications was “troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages.” (Science Applications, supra, 39 Cal.App.4th at p. 1105.) This is not such a case. The costs at issue total just over $24,000, and the trial court specifically found the trial technology enhanced counsel’s advocacy and was reasonably necessary to the conduct of the litigation. The court acted well within its discretion in allowing recovery of these costs.

Bender, at *46-47.

Bow Tie Thoughts

I think Bender is an important opinion, because it recognizes the reality of the 21st Century. Human beings are visual learners. Trial presentation technology helps jurors (and judges) understand anything from complex issues to the credibility of a witness.

We live in a world where almost everyone has a smartphone that can shoot video. There is no shortage of these instant videos being Tweeted out across social media. Attorney are well-served in representing their clients by using such relevant evidence to present the case facts to a jury.

Trial presentation technology is not cost prohibitive. Getting a synchronized video deposition for an important witness is within the world of reasonable costs. Standard trial presentation software for a laptop is less than $800. There are even multiple trial presentation apps for the iPad, ranging in cost from $10 to $90. The barriers to entry for the use of such technology to “enhanced counsel’s advocacy during the trial,” are remarkably low.

Is such technology “reasonably necessary to the conduct of the litigation”? I say yes. Our jurors have no shortage of online videos and cable television dedicated to history and science. This says nothing of the crime dramas people watch for entertainment. Modern jurors expect to see facts orderly presented, with the factual dots connected to the jury instructions. Trial presentation technology is vital to meeting the expectations of jurors for effective trial advocacy.

Tech Savvy Judges and the Challenge of Jurors Conducting Online Research

Why would a juror’s online research be a “problem” for a criminal defendant?

Because an “extrinsic influence on a jury’s deliberations violates a defendant’s Sixth Amendment rights to an impartial jury, to confront witnesses against him, and to be present at all critical stages of his trial.” United States v. Dyal, 2010 U.S. Dist. LEXIS 72489, at *38 (D.S.C. July 19, 2010).

One tech savvy judge tried to head off any Constitutional challenges that may befall modern jurors who are packing SmartPhones and a high speed Internet connection. 

The Judge instructed the jury, both orally and in writing, the following: 

I remind you that during your deliberations, you must not communicate with or provide any information to anyone by any means about this case. You may not use any electronic device or media, such as a telephone, cell phone, smart phone, iPhone, Blackberry or computer; the internet, any internet device, or any text or instant messaging service; or any internet chat room, blog, or website such as Facebook, My Space, LinkedIn, YouTube, or Twitter, to communicate to anyone any information about this case or to conduct any research about this case until I accept your verdict.

Dval, at *8-9. 

Despite these instructions, one curious juror did a Google search and looked up two words on Wikipedia and the Free Miriam Webster Dictionary.  Dval, at * 30-31.  When the Googling Juror brought this to the attention of the Jury Foreman, he was told Wikipeda is not reliable. Dval, at *52.  Moreover, when the Googling Juror tried sharing this information with others, he was cut off from discussing it.  Dval, at * 52-53. 

The Court held a hearing after the online research was brought to light to see if the jury had been tainted in its decision.   

After questioning of each juror, the Court found that the online research was juror misconduct, because the information was an improper external influence.  However, this was not prejudicial per se.  Dval, at * 55.  

The Court found that there was “no reasonable possibility that the external influence caused actual prejudice.”  Dval, at * 55.  This was based on the extensive questioning of all the jurors, which showed the Googling Juror had little to no influence on anyone and secondly, the terms he found were consistent with the jury’s own understanding of the terms.

Bow Tie Thoughts

It is very refreshing to see a judge try to head off problems in an age where people can whip out a SmartPhone and conduct an internet search for an instant answer. 

Judge Cameron McGowan Currie’s went out of his way to remind the jurors what not to do during deliberations, specifying naming some of the most commonly used social networking sites.  The jurors to their credit also were quick to avoid inappropriate conduct.

This will not be the last time a Court will need to do this sort of review, but it is a great roadmap on what to do when there is a juror conducting online research.

Admissibility of Text Messages: Challenging Authenticity

A criminal defendant appealing his conviction on ineffective counsel and insufficient evidence to support his convictions challenged text message evidence.  State v. Loye, 2009 Minn. App. Unpub. LEXIS 660, 1 (Minn. Ct. App. 2009).

The Defendant’s key argument at trial was challenging his victim’s credibility as the only witness to his attack upon her.  Loye, 2. Judging by his conviction, this obviously did not work out well for him. 

Texting EvidenceThe Defendant argued the court erred in excluding text messages the victim sent after the assault.  The Defendant claimed these messages were relevant and were not barred as hearsay.  Loye, 3.    

The Court found no error.  Loye, 3.

Trial Procedure & Rules of Evidence

The trial court did allow some text message evidence that the victim “loved” the Defendant.  Loye, 3. 

Instead of offering text messages acquired from a cell phone with a tool such as Paraben, a collection expert who could explain collection methodology or a subpoena to a cell phone service provider to produce text messages, the Defense counsel offered a handwritten transcript of the text messages.  Loye, 4.

There was no one offered to authenticate this handwritten text message transcript.  The Prosecution objected to introducing the trial exhibit.  Loye, 3. 

The Defense successfully used the handwritten transcript to refresh the victim’s recollection and read into the record.  Loye, 4.  The handwritten notes were only admitted as a court exhibit and never went to the jury.

Flashbacks to Trial Advocacy 

Ready to RuleTrial Advocacy and Evidence professors teach law students that “authenticity is a precondition to the admissibility of evidence.” Loye, 4.  

The Court found that the Defendants failed to lay any foundation with the handwritten text message transcript, thus the trial court properly excluded the evidence.  Loye, 4.  This might have been different if the Defendant had offered either the cell phone or a transcript from the cell phone service provider.

 

“If I Can’t Have It, No One Can”

The Defense tried arguing in the alternative that no text message evidence should have been admitted.  Loye, 4-5.  The Defense claimed that since the handwritten transcript was read to the jury to refresh the victim’s recollection, “The court erred by letting defense counsel cross-examine the alleged victim with the evidence without an accurate record that could be entered into evidence.”  Loye, 5.

Claiming prejudice because a jury has to rely on their own memories instead of text messages did not fly with the Court.  The Court noted jurors often rely on testimony and there was no explaination how this was prejudicial.  Loye, 5.

Admissibility Battles Can Be Avoided

Defense counsel could have avoided their inability to authenticate text messages with better case planning.  A subpoena could have been sent to the cell phone service provider on the victim’s text messages over the relevant time period.  A collection examiner could have defensibly imaged the victim’s (or the Defendant’s) text messages.  Photos could have been taken of the phone itself with the text messages.  However, none of those things happened.

Computer Animations vs Simulations: What is the Difference?

We live in an age where our jury pool watches CSI, History Channel battle re-enactments, and movies on iPods.  To say we are visual society is an understatement.  How can lawyers maximize technology to better communicate facts showing liability why an engine failed to the modern juror? 

 The first step is understanding the differences between computer animations and simulations. 

 A computer animation has the following characteristics:

  • Moving pictures not intended to simulate an event.
  • Authenticated by a sponsoring witness with personal knowledge of the content of the animation.
  • Showing that it fairly and adequately portrays the facts and
  • Helps illustrate the testimony.

 See, Lorraine v. Markel American Insurance Company, 241 F.R.D. 534, 559 (D. MD 2007)

 A computer simulation has the following characteristics:

  • Scientific Evidence
  • Generally detailed and realistic recreated computer image of the event that can be manipulated.
  • Can be portrayed from different angles or from the viewpoints of different witnesses.

See, Verizon Directories Corp. v. Yellow Book USA, Inc. E.D.N.Y., 2004 331 F.Supp.2d 136, 138

 Both animations and simulations can be very powerful in proving your case.  An animation requires a person with knowledge of the event to explain what is being presented.  Conversely, a simulation has far more science involved requiring expert testimony.  The witness will have to explain how the simulation was created.  More importantly, there might be challenges if the simulation does not have the correct lighting from the time of day.  There are additional prejudicial risks if the accident reconstruction is too graphic. 

 Regardless of what method you use to illustrate complex issues to a jury, it is imperative to recognize we have a visual society and there are tools to communicate.  

 …and as a special to Bow Tie Law Blog, here is an example of what not to use in trial…

Mock Motion in Limine Arguments to Exclude ESI

Michael Berman, Esq., of Rifkin, Livingston, Levitan & Silver, LLC, argued to excluded email messages and a voice mail at the CT Summation Best Practices Summit, held in Washington, DC on May 20th, 2008.

 The Best Practices Summit included a mock motion in limine hearing.  In the fictional case, the Plaintiffs attempted to prove breach of contract and break of fiduciary duty with email messages, native file contracts and a voice mail.  The Defendants sought to exclude these exhibits on admissibility grounds.

 Watch Mr. Berman’s arguments to see the admissibility challenges to the electronically stored information.  Also note, on the right screen you can see CT Summation iBlaze with a Real Time transcript and on the left screen the exhibits presented with Trial Director by inData Corporation. 

The People Would Like to Thank the Blogger for His Jury Service

 My friends laughed hysterically when I had jury duty last year.  Apparently, the idea of a lawyer having to do his civic duty is funny.  And yes, for the record, I did wear my bow tie.

 

 During the jury selection process, my exchanged with the judge went as follows:

 

American judgeJudge: Sir, what is your career?

 

Bow Tie: I am a lawyer, your Honor.

 

Judge: I had a feeling.

 

 

 

 

 

I was told by one of the other dismissed jurors that both the prosecutor and defense counsel were shaking their heads “no” the entire time I was answering the Judge’s questions on technology in the courtroom, e-Discovery and my job experience.  The Prosecutor apparently did not like the fact I did a little criminal defense at the beginning of my career and I was promptly thanked for my service. 

 

 Litigation support software, trial presentation technology and Web 2.0 are not just impacting how we practice law today, but jury selection as well.  There is even a specialty industry forming in jury research that checks jurors’ Facebook and MySpace pages to learn more about those jurors. [1] 

 

 There have also been attempts to dismiss jurors for their blogging.  In Gregoire v. City of Oak Harbor, 2007 Wash. App. LEXIS 2929 ( Wash. Ct. App. Oct. 29, 2007 ), an attorney tried to excuse a juror for a blog.  The attorney discovered a blog written by a juror, in which the juror blogged about his experiences dealing with suicide in his job as a youth minister.

 

 During jury deliberations, trial counsel brought the blog to the trial court’s attention and asked that the juror be excused, arguing that the blog was inconsistent with the juror’s questionnaire. The juror-blogger had answered “no” to the question regarding whether he had ever been depressed or suicidal.

 

The trial court found that the blog comments regarding the juror’s encounters with suicide in his work as a youth minister were not inconsistent with the juror’s questionnaire.  Moreover, the blog did not show any bias, thus a challenge for cause would have been inappropriate.[2]   

 

 Attorneys would serve their clients well by asking prospective jurors if their blogging practices relate to any issues of the lawsuit during voir dire.  A juror’s activity on Web 2.0 might be totally harmless and not relevant to the lawsuit, but it never hurts to ask.

 


[1] Julie Kay, Social Networking Sites Help Vet Jurors, The National Law Journal, August 13, 2008, http://www.law.com/jsp/legaltechnology/pubArticleLT.jsp?id=1202423725315

 [2] Gregoire v. City of Oak Harbor, 2007 Wash. App. LEXIS 2929 ( Wash. Ct. App. Oct. 29, 2007 ),