Top 10: Trial Support List

By Noah Wick, M.A.
Ten things every attorney should have ready when going to trial

Every Saturday morning, usually before my coffee, I’m handed a list. My fiancée lets me know each weekend that she would “like” me to complete chores and promptly offers me a “list.” I can’t complain because honestly, if I did not have a list, the house would be a disaster (but at least I would know the details on Brett Favre’s latest retirement decision!).

Oftentimes I hear litigators say that they wish they used a jury/trial consultant but there isn’t enough time. They wish they had created a better timeline or had tech support in court, yet they always manage to leave it till the last moment. So for those trial attorneys potentially headed to mediation/trial in the coming months, here is “my list” of trial support options for you to consider. These support options will help you prepare for trial, tell your story more effectively at trial and win more cases.

Case Strategy/ Theme Development

Getting a case down to “clear and simple” is one of the most important challenges that today’s litigators face. No matter how complex the underlying issues are, you may need support from a trial consultant to work with you to frame and anchor your case in the bedrock principles of sound communication and strategic design.
While there are many issues and dimensions to each case, Case Strategy sessions help develop the most compelling story so that the jury can not only understand what the evidence is, but also understand what it means in the context of the litigation.

Witness Preparation

In any trial, witnesses may feel anxious or combative, may be too elaborate and generally ineffective as communicators. Often, these difficulties are rooted in and emphasized by the stress of trial. Proper witness preparation seeks to alleviate this stress by giving your witness the tools he / she needs to feel confident and in control during trial.

When working with a jury consultant, you will want their program to be tailored for each witness to optimize his / her clarity and effectiveness to the overall trial strategy. Witness preparation sessions are ideal for witnesses who feel angry, indignant, inadequate or shy. These emotions, as well as others, can often manifest in a way that can complicate your case.

Demonstrative Evidence/Graphics

As your litigation moves toward trial, it becomes increasingly important to focus your message in the most impactful way. In this media-savvy and commercially saturated world, it is vital to include demonstrative exhibits during your mediation or trial. Flowcharts, timelines, opening & closing statements with PowerPoint graphics, callouts, charts, animations, exhibit boards, and other litigation visuals enable you to tell your story in a way that resonates with your judge and jury.
PowerPoint(TM), the ubiquitous corporate presentation toolset, has become a mainstay in the courtroom. It’s easy to program, easy to use, and an effective way to present information, particularly during opening statement and closing argument. But, just because PowerPoint has many presentation features (text dissolves, zooms, fades and other snazzy transitions) does not mean that one should use each and every one of them. Moreover, not everyone is adept at graphic design, and the effective display of information on each slide is an art that develops with practice.
When it comes to trial graphics, sometimes less is more. As with expert witnesses, one word or sentence can be more valuable than hours of testimony. Conversely, sometimes it becomes essential to provide a large amount of information to ensure your judge and jury understands the full breadth of your case.

Online Surveys

Online Surveys are a cost-effective tool which provides feedback about case issues, case value, and juror profiles. The online survey can target research participants in specific venues. Online respondents are presented with a case narrative, arguments and exhibits, and the verdict form. The online presentation may also include audio narratives, video presentations, timelines, photographs, graphics, and other features that enhance interest, comprehension, and quality feedback.
Online Surveys have many advantages…

* Cost-effective
* Large sample sizes
* Quick turnaround
* Web respondents are opinionated and provide honest, frank feedback
* Data collected, stored, and delivered from our secure server
* Questionnaires can contain exhibits, interactive timelines, other graphics, audio and/or video presentations
* Create on-line panels for ongoing responses to new issues as they develop

Mock Trial

A mock trial provides feedback about the factors that will be pivotal to the jury’s verdict. Advance feedback from mock jurors can help the trial team evaluate, reformulate and refine trial strategies from the juror’s perspective. The aim of a mock trial is two-fold: (1) to assess and understand a juror’s reaction to specific case arguments; and (2) to develop persuasive, research-based trial strategies.

Trial Database Creation and Management

Whether you are just starting a case and need help getting documents imaged and loaded into a document management database, or have an existing database that needs to be prepared for trial, trial consultants will manage your important information using one of the industry’s leading database programs.

Opening & Closing Statements

The first 30 words of the opening statement, if developed and presented well, may be the most important 30 words in your case. A jury consultant works with you to create the indelible first, and lasting impressions that will become the filter through which all evidence and testimony must pass. Keeping the promise of the open is the key to powerful summations in the courtroom and must be meaningful and supportable.

Equipment Rental

Today’s digital presentations demand the latest presentation equipment. Not all courtrooms have everything you need so you must prepare as though the courtroom is bare of technology. Make sure you have at the very least a basic package of equipment for your case, including a large screen, a high lumens (20,000+) projector, computer switcher, a document camera (ELMO) and possibly flat-screen monitors for the judge, witness and jury. There are videoconference options as well if your witnesses would be unavailable. Lastly, setup and test the equipment beforehand so you can be confident the equipment will work for you and not against you.

Jury Selection/Voir Dire

When seating a jury, it is important to identify those that bring with them biases that could be detrimental to your client and case. Often it is best to use a combination of voir dire and creating a high-risk juror profile as a means of seating a jury best suited to hear your case.

Trial Presentation

Having an experienced technology professional in the courtroom “hot seat” lets you focus on your case presentation without worry. Always ask for a CV and referrals from a trial consultant which may be sitting next to you in trial. They should be someone who has national level experience and spent at least 1,500 hours in court, therefore they are familiar with handling every situation that may arise.

Trial presentation software is the best technology to use with document intensive cases since it allows for excerpting and highlighting documents “on the fly.” This interactivity makes an otherwise laborious and dull presentation more engaging and memorable to the jury, and it uses time more efficiently. TrialDirector(TM) and Sanction(TM) are two of the most commonly used trial presentation software packages. Both of these programs use non-proprietary formats and integrate well with other programs such as Summation(TM). They serve as case “portals” where documents, video, animations and graphics are organized and easily accessed during trial.

Noah Wick, M.A. is the Director of Marketing & Business Development with Prolumina. Prolumina is a trial consulting firm specializing in litigation strategy, trial graphics, litigation support services and trial presentation. Please direct comments or questions to him at 206-622-6700, www.prolumina.net or nwick@prolumina.net.

Because juries vary in their sophistication, it’s important to get to the main point, then address nuances. There is no set formula for closing argument. Each case has different strengths and weaknesses. Moreover, juries vary widely in their sophistication and ability to comprehend arguments, and trial judges often have individual practices that shape how closings are presented.

That being said, effective closings are usually built upon a core set of strategies. We described several of them in our May18 column. There we emphasized the importance of arguing the evidence. We suggested that the beginning of most closing arguments should contain an explanation in simple terms of why your client’s case is just. We also suggested that you should address the burden of proof, regardless of whether you or your adversary must meet it. This column focuses on strategies for retaining jurors’ incomplete grasp of its implications because they have only a limited understanding of the applicable legal standards. In contrast, trial counsel has analyzed each bit of evidence in the case many times over, particularly in connection with the preparation of closing argument. When you add to the mix that many jurors have difficulty following abstract arguments, the stage is set for a jury address that misses its audience—that is, unless counsel takes a step back and thinks through how best to communicate with the jury.

Figuring out how to address the wide differences that often exist in jurors’ ability to comprehend arguments is one challenge. A simple solution here is to boil down each argument in the closing to its essentials and frame the argument so that all the jurors can understand at least the main point. The objective is not to omit essential facts or to avoid all complexity. Rather, explain the main point of each argument as quickly and simply as you can. Only after you have done so should you turn to the more complex nuances of the argument that only some of the jurors will be able to absorb.

When you move on to an entirely different point, use strong transitions and simple demonstrative aids to regain the attention of those jurors who may have tuned out during the fine points of the last argument. By following this pattern, counsel can reduce the risk of leaving behind certain jurors without sacrificing the opportunity to make more sophisticated arguments. School teachers teach the average students first. You should consider adopting the same approach in closing argument.

For the same reasons, state your central theme or themes at the very beginning of your closing argument. These themes are the reason the jury must decide the case in favor of your client. To be effective, they must be simple, and they must appeal to the kinds of people on the jury in light of their experience and moral groundings.

Also take a few minutes early on in the closing to get to the business of picking apart your adversary’s case. Although it is often better to make your own case first so that the jury will be prepared to accept your explanation of your adversary’s take on the bad facts in your case, do not delay in addressing the weaknesses in your case. In other words, focus early in your closing argument on the hard choices that the jury must make. And when there is both direct and circumstantial evidence on a point, focus on the direct evidence first, unless the circumstantial evidence is more persuasive. Direct evidence is typically far easier for jurors to understand.
Also explain early in your closing in simple terms the key instructions that will frame the issues for the jury and then describe in detail what you are proposing that the jury do. Specifically request that the jury reach the result you want.

Addressing Tedious Evidence

Another challenge in closing argument is the need to sift through often tedious documents and testimony without boring the jury or having jurors lose track of how the specific evidence being discussed relates to the more general themes of your case. Demonstrative aids are a helpful tool. They break up the presentation. They also aid in its organization. Most jurisdictions permit counsel to use diagrams, charts or drawings during closing argument, even if they were never introduced into evidence. Take advantage of this option when you can.

Even if the evidence is tedious, resist the temptation to move away from discussing specific facts in closing. Also avoid narratives that are long on plot and short on analysis, or witness-by- witness summaries. Instead, weave the bits and pieces of evidence, together with relevant jury instructions, into a list of reasons why your client should prevail. Make numerous references to the testimony and exhibits. Use imagery and analogies so that the facts have a life of their own.

Handle the exhibits when possible. This helps jurors focus on and remember the ones you choose to emphasize. You can tell a juror multiple times in closing that your client is not liable for securities fraud because it disclosed all material investment risks, but thumbing through the thick prospectus when you refer to it in closing will likely create a more memorable point. Seeing is often more important to jurors than hearing, even in a complex-document case. Take the same approach with trial testimony. Go to the record. Read the relevant testimony to the jury. It is usually easier to keep the jury’s attention with specific passages instead of counsel’s own general recollection of the testimony.

In simplifying your argument, it is important to adopt the correct tone with the jury. Talking down to jurors, or fawning over them, will not advance your cause. Melodrama and flowery oratory rarely do the job either. It is difficult to beat the tried and true approach of planting seeds and letting the jury decide for itself. Jurors will perceive that you respect them. They also will stick with a conclusion more resolutely if they view it as the product of their own reasoning. The best way to plant seeds in closing argument is, as discussed above, to focus on specific testimony and exhibits.

Focusing on specific facts doesn’t mean that you should strip your closing of forceful arguments or blunt criticisms of your adversary’s case; Just avoid dictating the result. For example, in the government’s closing in the Iran-Contra independent counsel’s case against Admiral John Poindexter, the national security adviser during the Reagan administration who was charged with obstructing Congress’ investigation of Iran-Contra, the government first suggested that the testimony of the defense’s witnesses, including President Reagan, was largely irrelevant to the issues the jury was to decide. The government did not stop there, however. It went on to blame Poindexter for the strategy, to suggest that it was a disgrace for him to believe that, if he trotted out important government officials as witnesses, the jury would somehow be motivated to acquit him because these officials liked him. Jurors were never told what to think, but they were given the grounds from which they could infer that Poindexter would not have needed to wrap himself around the president and present a phony defense if he were innocent.

Using analogies that draw upon the jurors’ experience is a particularly effective way to simplify concepts without appearing to be condescending in closing argument. The prosecutor’s explanation of the applicable reasonable- doubt standard in the 1883 murder case against Frank James (Jesse James’ brother) illustrates the point: “You are all farmers, I am told. One of you is plowing in your field; a neighbor comes…up to you…and says, ‘What are you plowing for?’ If it is springtime, you say for corn, or oats, as the case may be. But he says,
‘How do you know you are going to raise anything, I am in doubt this season….’ ‘Why,’ you say, ‘with the rarest exceptions, God has always made seed- time and harvest to come—the rains have descended and the sun has shone—and with the great bulk of evidence in my favor, I will plow on and raise my crop.’ ‘Sometimes they miss,’ he exclaims. This, gentlemen, is an unreasonable, unsubstantial doubt….If you acted similarly, you and yours would starve.” William H. Wallace’s Summation in The State of Missouri v. Frank James, Classics of the Courtroom series, foreword by James W. Jeans Sr. This, no doubt, was effective lawyering, given the jurors’ profile and the trial site.

Published September 21st 2009 in The National Law Journal. Written by Dan Webb and David Reich.

R. Craig Smith is a Senior Trial Consultant at Prolumina in Seattle, WA with over 30 years of experience with Case Strategy.  His expertise is in:

Prolumina’s overriding philosophy is: we provide increments of advantage to attorneys to assist them tell their stories more effectively and win more cases.

To contact Craig Smith call 206.622.6700 or e-mail csmith@prolumina.net

7 WAYS TO STAY HEALTHY DURING TRIAL

By Noah Wick

Your trial is on calendar and approaching all too fast. The closer you get, the more it seems there is to do, and the “more behind” you seem to get. You may lie awake into the early hours, mulling over and over in your mind the mountains of evidence and issues that you need to get down to clear and simple for the jury. What about your expert witness – will he hold up under cross? How will you deal with that bad answer your client dropped in deposition? And what could/should you do to better prepare your client for trial? What will your opening statement sound like to the jury? All of these questions are part of the experience that every lawyer goes through, no matter how many times you have been there before. The stress, anxiety and long hours begin to take their toll, sapping the energy right out of you. Of course, you want to be in your best form for your client – at the top of your game – so that you will be able to win this case.

With all of the things that you must think about, manage and consider as you prepare for and present your case in trial, one of the most important things that must NOT be overlooked is your health!

Instead of stressing, use these health tips to help yourself and your client.

1. Start off each day with positive attitude
A positive attitude leads to happiness and success and can change your whole life. When faced with a challenge, envisioning your own success can lead to success itself.
TIP: Try using some humor to keep you and your client positive during those particularly tough times during trial.

2. Feed your body with small meals throughout the day
You’ve heard it over and over again: eat smaller, healthier meals every 2 to 3 hours. Well, it just so happens to be true! If you “trick” your body into thinking you will be fed every few hours, it will tell itself to use what it needs and expel everything else. This ultimately means increase fat burning and less fat storage. Plus, by feeding yourself throughout the day, you will feel and look healthier which enables you to focus on your client’s needs and not your empty stomach.
TIP: Try preparing 3 or 4 meals to bring to work with you. If this seems to be a lot of cooking, make large batches for the week and freeze them for future use. Also, bring a power bar and water in case your lunch is replaced by working or preparing witnesses.

3. Drink plenty of water
Water is an essential nutrient. All chemical reactions in the body depend upon it. It has multiple positive effects such as combating ailments, reducing hunger and enhancing fat loss. On top of all that, studies show that increased water intake may lessen the signs of aging. Given our current health climate and your need to “stay in the game” it is essential that you drink plenty of water to reduce the risk of catching a cold or flu.
TIP: In order to meet the 8 to 12 glasses recommended a day, considering carrying a water bottle with you and choose water instead of soda. Within weeks, you’ll be sure to notice a difference in how you feel and look.

4. Take power naps
Power naps are a great way to give yourself a shot of physical and mental energy in the middle of your day. Sometimes, even with a good night’s sleep, your body still needs a rest in the middle of the day. Twenty to thirty minutes is the ideal length for a power nap because your body does not have the chance to fall into any kind of deep sleep. This will allow you to wake up feeling energized and ready for that afternoon deposition.
TIP: Schedule your power naps for “down” times during the day. If you’re eating more frequently throughout the day (see #2), you may be able to squeeze your power nap in during your lunch hour.

5. Exercise for at least 30 minutes a day
Exercising for at least thirty minutes a day is both physically and mentally beneficial. Exercise, in addition to its well known physical benefits, releases endorphins. Endorphins are what give your system that extra boost in confidence, stamina, and mental acuity.
TIP: Try taking a brisk walk during the day to help with concentration or plan your day with a gym workout in the morning, lunch or after work. All options have their own separate benefits.

6. Take a daily multi-vitamin
Vitamins are vital for the body to function properly. Each of the 13 essential vitamins (A, C, D, E, K, B12, and the 7 B-complex vitamins) provides the regulation of a crucial function. Humans acquire a majority of the vitamins our body needs from food and when there is a deficiency, we are in danger of becoming seriously ill. Vitamin supplementation can lessen ailments caused by vitamin deficiency, sometimes miraculously. Taking care of yourself is what adds to those increments of advantage you need in trial.
TIP: Bring your multivitamin to work and have it with your lunch. This is one of the best times to take it and can easily become routine.

7. Reduce Stress
No matter how calm and relaxed you are as a person, it’s very easy to succumb to stress throughout your day; especially while preparing for trial. The problem is that stress does not help the situation, it actually prevents you from being productive and trying your case successfully. You feel it and the jury can see it. Ultimately, stress is built up by the feeling of not being well prepared. As Benjamin Franklin once said, “Failing to prepare is preparing to fail.”
TIP: Hire a trial consulting firm to prepare your witnesses, select your jury and assist you with developing your overall case strategy. With the proper planning you can eliminate unnecessary stress and increase your trial performance.

Overall, you may be a Super Lawyer but you are not super human. By following these 7 Ways to Stay Healthy and taking care of yourself, you are, in the end, taking care of your client as well. A healthy lawyer is a strong lawyer and even the strongest lawyer needs help from time to time. In that case, partner with a trial consultant on your next trial. From intake to judgment, highly experienced consultants can support you throughout the entire process including strategic, graphics and in-court technology. Let our resources help you gain those small advantages throughout the trial that lead you to a winning performance.

Noah Wick is the Director of Marketing and Business Development for Prolumina, a trial consulting firm in Seattle, WA. In 2009, he became the first Testicular Cancer Survivor to compete nationally in Natural Bodybuilding shows. Please direct comments or questions to him at 206-622-6700 or nwick@prolumina.net.

Make It Clear by R. Craig Smith

Well-Orchestrated presentations can have a decisive effect on trials

Whether you are trying a patent case, a medical malpractice case, personal injury case, or a construction defect grievance, the courtroom challenges are virtually the same. So too are the principles of success no matter how simple or complicated the evidence. One attorney said, “You have to get all of the facts to fit into a single, simple picture that the jury can understand and believe.” That is no small task when you’re talking about complicated claims in a patent infringement suit.

The final, winning picture is a composite of many pieces of a puzzle, pulled together, arranged and refined to create a clear and simple image that makes sense to the jury. Medical malpractice and personal injury cases (and virtually all other cases that are information-intensive or technical) are generally lost because lawyers feel a need to put jurors through medical or engineering school before they entrust them with what happened tot heir client. In the interim, the jurors get so confused or bored they often end up making decisions based on which attorney wore the most colorful ties.

One must create the proper “mix” of visual tools. This allows one to choreograph and direct the examination of their experts as well as control the impressions being made on the jury during the cross-examination of opposing witnesses. Balance and variety are essential in keeping the jury interested and focused on the issues that will help them reach their verdict.

In a rapidly evolving world of electronics and multimedia, the increasingly smaller size and portability of today’s presentation tolls make it easy for trial attorneys to offer the most interesting, powerful, and memorable presentation of the evidence to juries anywhere, with minimal difficulty.

Her are two lessons that any litigator can benefit from in virtually any kind of trial setting:

* Diversify presentation formats and tools. In the patent infringement case noted earlier, the plaintiff’s attorneys used a creative mix of high- and low-tech tools and exhibits, each designed to achieve a specific objective with the jury. The list included an Elmo projections system, data management on laser disk, a standard videotape player, exhibit boards that included standard document blow-ups and diagrams as well as graphically designed and color-coded claim boards; these tools helped the jury understand each element of the claim language. Although the courtroom already had “built-in” electronics, the plaintiff’s attorneys (who were 3,000 miles from home) carried their own complete system in a couple of cases. The attorneys noted that frequent changes in format revived the jurors’ attention, and information presented in different formats and from different perspectives broke the monotony, which kept jurors awake and focused.

* Give the expert direct access to presentation technology. More attorneys are recognizing the impact and flexibility of the Elmo as a presentation tool. Documents, 3-D objects, X-rays, photographs, graphics, and many other forms of evidence can be projected onto a television monitor in impressive color and detail. The Elmo can be connected to an electronic “draw” pad that allows the user to highlight, circle, and otherwise emphasize certain elements of a document or graphic. This in turn can be captured and printed on a laser copier for the juror’s benefit.

The problem, however, is that if only the attorney has access to the Elmo and does the drawing, the markings or highlights on the presented image cannot be considered evidence or testimony. An Elmo with a draw pad accessible to the witness, on the other hand, lets the expert make the marks in support of his or her verbal testimony and the captured image, with the witness’ emphasis, is admissible as evidence.

Normally, the examining attorney, when referring to a document or exhibit, will ask the witness to look at a particular page or tab in the exhibit book and the jury must rely on the fact that the person in the box is seeing something and talking about it. Imagine the impact made on jurors when the attorney asks the witness, “Would you please show the jury what it is you’re looking at?” and, with the swipe of a bar-code-reading pencil by the expert, the document appears on the monitor, ready to be shared by both the court and the jurors. This gives the jurors a sense of proximity to the expert by allowing them to virtually look over the expert’s shoulder. The involvement created between jury and expert is powerful and memorable and jurors feel they are more aligned with the witness. Then, when the expert draws attention to the particular point in the document that supports your case, the jurors feel they have participated in underscoring the important point you are making, and they will tend to remember that point because of their vicarious participation.

Even on cross-examination, the Elmo draw pad can be used to reinforce your argument by having the opposing witness underline or highlight information that may be damaging to his or her credibility, undermine his or her testimony, or reinforce the point you want to make. In this case, the jury has witnessed a physical act tantamount to an admission that your position is the more correct one. Finally, balance the high-tech stuff with some old-fashioned poster boards that can be strategically placed in such a way as to be there for the jury to refer to for longer periods of time.

Craig Smith is the senior trial consultant at Prolumina in Seattle. He is a frequent CLE presenter, author of numerous articles on courtroom communication and trial strategies, and is the author of “Championship Law—Seven Keys to Winning Performance in the Courtroom.”

Prolumina- Trial Technology and Presentation at its best!

Trial Economics

Employed Intelligently, Good Tools Work and Make Money

Brought to you by Prolumina Trial Consultant, R. Craig Smith. Prolumina is a full litigation service firm that specializes in strategic trial consulting, trial graphics, trial technology, video conferencing and legal videography.

Aside from taking a case to help a close friend or family member, or to satisfy a requirement or an urge to do pro bono work, the most important questions that must be answered in reviewing a new case are, “Is it worth it?” and “What’s in this for me and/or my firm?”

As altruistic and unblemished as trial lawyers believe themselves to be, the reality is that the practice of law, like any profession, is a means of achieving a level of financial security and success that will accommodate a desired lifestyle. For most, it is not merely a means of survival but a path leading to the personal and professional satisfaction that motivates long years of study, hard work, and reaching out towards that goal.

Competition and Costs

In California, for example, where nearly 150,000 lawyers vie for business, even for those who have done well, the luxury of choosing the cases one wants to litigate is becoming increasingly rare, and the need to carefully evaluate the economics of any case becomes increasingly important.

Sure the top 3 percent of heavy hitters who have to say “no” several times a day because they’re actually busy handling multimillion-dollar or high-profile cases, leave the evaluating to a well-paid team of screeners. But, laywers out there every day, slugging through the courts with soft-tissue, employment, or fender-bender cases often have to go into their own pockets to stay alive and have more difficulty saying “no” when a prospective client calls or walks through the door. More important, the ability to scrutinize the worth of a case and what it will take to make it workable, economically, may not be as objective or acute as it might be if Bill Gates called seeking representation.

The bottom line is that it costs money to go to trial. If the client is not blessed with deep pockets, a reasonable understanding of the expenses that can accrue during litigation, and a willingness to provide the resources necessary to put on the most effective and compelling case possible, then the lawyer is left to do battle in an Indy Car race with a Model T Ford. This example is not too extreme! With the resources, technology, and expertise to present information and evidence in court that is available in today’s fast-paced information age, going into trial without the best possible means of convincing a jury why your case has more merit than that of your opponent begins to approach professional negligence. There certainly will be an increasing number of actions brought against attorneys by unhappy clients who realize too late that their lawyers were simply outgunned by the other side. But, economically, in 90 percent of the cases that go to trial, how does one make it work?

The ‘Trial’ Face

When one considers the elements of success, no matter what the context or contest, it is the small, almost imperceptible increments of advantage that make the difference between triumph and disappointment. In sports, part of the pre-game ritual is the putting on of the “game face”. In law, this is called the “trial face.” Assuming a position of strength early on sends clear and strong messages to the other side: “We have confidence in our case!” “We have the resources to see it through!” “We’re prepared to go to the mat on this!”

Particularly in the early stages, during the settlement discussions and proceedings, a strong trial face tells the other side that this case is important and has merit. Settlement, after all, is risk management in its purest form. One can show up at the settlement conference with trial exhibits – the bigger the better – and other tools planned to use in front of a jury. It then is clear that the lawyer is pulling out all stops to win the client’s case. When the opponent sees what the jury will see, not only is the likelihood of settlement increased but the end value of the case is enhanced. If it doesn’t settle, however, 85 percent of the trial work has been completed. This takes careful consideration and planning, but winning often depends as much on the way a case is litigated from the very beginning as on the facts in the case themselves.

Now, assume a case has merit, but there is a lack of resources to put on a strong trial face. How does one bridge the gap between budget and power position? Here, too, as in the world of business, the business of law requires some creative thinking and planning.

For example, suppose a homeowner wants to sell the house. It’s a little old and rundown, but it’s in a good neighborhood that would be great for a family. The owner can sell it, as is, for a pretty good profit. But what if the garage door was replaced, rooms were repainted, and the kitchen was upgraded? The owner might have to go to the bank to borrow $15,000 to complete the improvements, but with the improvements, two things happen: First, once the house is on the market, people tend to be less likely to focus on the flaws. The garage door looks strong. They like the fresh smell of new paint. The kitchen sparkles, and there is no worry whether the pipes under the sink are going to leak. There is buyer confidence that the house is of value. As a result, the second thing that happens is that the asking price can be increased. By comparison to other homes in the neighborhood, with all the new improvements, the house will easily bring $30,000 to $40,000 more than it would have without the upgrades. Sure, $15,000 was spent and the homeowner had to do a little more work, but the net result increased by more than $20,000.

The same result occurs with trials. An investment in making trial powerful, memorable, and compelling for the jury, whether the case settles or goes to trial, probably will be the best investment an attorney makes toward reaching career goals. The lawyer will understand the importance of enhancing the value of the case and making sure that they’re driving the Ferrari, not the Model T.

Availability and Options of Creative Financing

Creative financing can be accomplished in several ways. The old adage,. “The smartest way to make money is to use other people’s money,” can apply even in law. In the world of creative financing, there is a recognizable need to ensure that effective representation has access to the best available resources and adequate funding to complete a project. New alternatives are emerging that allow even sole practitioners and small firms to play with the big guns. Alternative litigation funding is not new, but it has taken a long time to get to the point where the lawyer and the public understand the obvious advantages.

Typically, there are two forms of funding that occur. The first is a credit line that is specifically tailored to the attorney or firm. A credit line is created and no moneys are repaid until the case settles or is successfully litigated. The problems occur when the verdict is against the plaintiff. At that point the loan becomes due and the attorney needs to make repayment. The other problem is that a large percentage fo firms do not qualify for the credit line.

Because litigation funding long has been unregulated, many individuals and companies have taken advantage of an identifiable need and ended up taking more than a reasonable return, charging exorbitant fees that can leave attorneys, despite an excellent result, with little or nothing to show for their work.

Another alternative is to find a company that, in effect, purchases a small percentage of the plaintiff’s case. The purchase is made on a nonrecourse loan basis so that if the case is unsuccessful, the plaintiff’s client owes nothing.

Thomas Hurley, co-founder of one such company, San Diego-based Legal Alternative Funding, explained this concept: The plaintiff’s case is evaluated for its viability. If the case merits some type of intervention, the company will provide up to 10 percent of the case’s conservative settlement value in exchange for up to 10 percent ownership in the case. An example would be a $750,000 case with an advance requirement of $75,000. This money would be used to finance significant discovery and other necessary case work-up. If the case settles or is successful, Legal Alternative would get their $75,000 back plus between 3 percent and 10 percent of the case’s gross, depending on the length of time it takes to resolve. Since not every case is successful, if the case does go south, the plaintiff client owes nothing. This appeals to both clients and attorneys. Attorneys benefit because they are relieved from the considerable costs they normally would be forced to assume for an adverse verdict. Clients like it because, like the contingency arrangement they enjoy with their attorney, they only pay if they win. The average investment made by Legal Alternative Funding is between $50,000 and $100,000 per case.

Thank you for visiting Prolumina’s blog! This week, we’re featuring our Vice President and CFO, Susan Hazelmann.

Susan is our rock behind the scenes.

Under her financial directive, Prolumina has flourished as the Northwest’s leading trial technology firm. Much of Prolumina’s success and stability can be tied to Susan’s involvement. As the primary HR liaison and hiring manager, she has worked to recruit and retain the industry’s leading personnel allowing Prolumina to offer our clients unmatched service and experience.

Previous to her work with Prolumina, Susan taught English as a Second Language (ESL) in Japan for two years, and then in Bellevue, WA for ten years after returning to the United States with her family. She has also worked as a paralegal assistant and as an abstract writer for a marketing database. Susan earned a B.A. from Oberlin College in Ohio in 1984, graduating with a Linguistics major and a Spanish minor.

Over the next few weeks we’ll be posting the professional bios of Prolumina’s team. Today, we’d like to introduce you to Chris Hazelmann, Prolumina’s CEO & President:

In 1999, Chris Hazelmann became the primary stakeholder in Prolumina. One of Chris’s first initiatives was to expand the scope of services to introduce the trial technology that has made Prolumina the most sought out firm for high-level presentation support. Under Chris’s leadership, Prolumina has extended to support graphic design, illustrative creation, trial consulting and various other strategic services. In addition to providing litigation support, Chris has designed and taught multiple Continuing Legal Education seminars. His expertise in trial technology has garnered him invitations to speak at law schools for the University of Washington and Seattle University. Chris is also a featured writer for the King County Bar Association; highlighting the effective use of technology in the courtroom.

Welcome to Prolumina’s official blog!

This site is designed to provide information about our services and company. We’ll be posting articles, notes, and links that we hope our clients will find useful and interesting.

Comments and questions are always welcome. Please feel free to reach out to us via our blog or our website.