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ADR and the Art of High-Speed Trial Presentation

Recent involvement in a large Construction Mediation, followed by a series of 2-day Chrysler Bankruptcy Arbitrations have served to remind me (along with a couple of my clients, and our opponents) of the true value of thorough preparation, coupled with the absolute necessity of delivering the most efficient and effective trial presentation possible.

Also see: How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials

Today’s economy has certainly had an effect on decisions to pursue traditional litigation, versus various forms of Alternative Dispute Resolution (ADR), which are typically perceived as shorter and less costly. While the latter is debatable, the former is generally true. That stated, showing up for a two or three-day proceeding and expecting everyone to follow along while searching for exhibits in boxes, or jumping quickly from binder-to-binder can be a recipe for disaster.

Although the fact-finder may indeed wish to mark up a copy for reference, having the ability to quickly show the “hot spots” on the exhibits is important. Zooming in on a paragraph and highlighting the key text with TrialDirector gives visual cues and direction as to what is important to your case. While you may argue that it is all important, you will likely find the Judge encouraging you to make sure and point out the real important stuff. Failure to do so may be failure to get your message heard and understood.

Preparation for this type of proceeding should not differ from traditional trial preparation. Many cases heard in ADR are of no less value than similar matters heard in court. Just because ADR is chosen as the venue does not mean that preparation should be compromised. In fact, given the shortened time in which the entire case must be presented, it is more important than ever to have everything ready to go. In ADR, a win is still a win, and a loss is still a loss.

Except in perhaps the smallest of matters, it is never a prudent idea to attempt to “save your client some money” by not taking all necessary steps for trial prep, such as scanning of exhibits, videotaping depositions or having demonstrative exhibits created. Neither is it a good idea to attempt to handle this and the trial presentation yourself, unless this is something you do on a regular basis. In any event, while you may have less people billing on the matter, the real value to the case may be compromised. There is a significant difference between someone who does something only occasionally and an expert who does the same thing regularly. Trial presentation is certainly easier these days, but unless you’re doing this full-time, you are at a disadvantage (and risk).

Along the same line, cost does not always equal value. In other words, attempting to again “save your client some money” either by doing things yourself or hiring the “cheapest” service provider available can bring a negative result. In many cases, hiring “the best” you can find brings in another level of professionalism to your trial team. In most cases in which I’ve been retained, I have been able to objectively view the case from a different perspective – more like that of a juror – and have been able to offer valuable insight, contributing to case strategy. You won’t always find this same level of service by shopping for the lowest hourly rate or by working with a large company without knowing the level of experience and qualifications of the individual(s) actually assigned to your case. If you value your client and your own reputation, don’t risk doing them a “favor” by saving a few bucks at the expense of the trial.

ADR can be likened to an Opening Statement and Closing Argument all built into one. That stated, be fully-prepared to deliver your message quickly and clearly. Don’t hesitate to engage the services of others in your firm or to bring in outside consultants when necessary. It is rarely in the best interest of your client to compromise by taking the path of least resistance or lowest cost, while potentially risking the outcome of your case. This reminds me of an old saying…

Also see: How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco
http://trial-technology.blogspot.com/
WINNER: LAW TECHNOLOGY NEWS AWARD FOR MOST INNOVATIVE USE OF TECHNOLOGY DURING A TRIAL
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