20+20: A Look at How Advances in Video Technology Affect Trials

2020BadgeAs we continue to celebrate our firm’s 20 years of being in practice and forecast the next 20 years, we like to reflect on the changes we’ve seen in the legal system, and how those changes will impact the future. An area of change that we find quite interesting is the court system’s adaptation of new technology. One in particular, video communication technology, has been used in legal settings for years, but the onset of streaming media may forever change the way attorneys, juries, and witnesses interact in the courtroom.

Using video testimony: then and now

Advances in technology are changing the way witness testimony is gathered and heard by juries. Twenty years ago, if a witness couldn’t physically attend a trial, attorneys would have to travel to their location to capture a written transcript of their testimony. In court, someone would physically read the questions and answers back to the jury. The process lacked the value of an in-person question and answer discussion. If an out-of-state witness couldn’t or wouldn’t come to trial (in Ohio, the state court’s power to compel a witness to come to trial only extends to the boundaries of the state), this was the only way to capture their testimony. Overall, it was an artificial and boring process.

Somewhere in the course of our practice we began videotaping witness testimony. Initially, it was very expensive, and required clunky camcorders and specialized videographers. The testimony would be recorded, and the video tape would later be played back to the jury. It often felt like watching a very dull movie. If the video testimony was played after lunch, the jury would often become tired and lose focus, and sometimes even fall asleep. Sometimes the judge would even call a short recess to get the jurors to walk around and wake up. This method made it difficult to determine if the testimony was actually being heard and understood by the jury.

Live streaming: a welcome, and useful, alternative

Over the last few years, video technology has evolved, and now live streaming testimony is available in the courtroom. The onset of video conferencing with providers like Skype and FaceTime has become a great way to capture testimony in real time, especially if the person testifying is in another country or a great distance away.

Skype is a valuable legal tool because it’s the next best thing to actually looking the witness in the eye as they deliver their testimony. It allows for a kind of human interaction that is almost as compelling as testimony given live in the courtroom. Judges have to approve the video streaming process, of course, but many of them have embraced this technology as an alternative to traditional written or recorded testimony.

There are multiple benefits of being able to interact in real time via live video streaming; first of which is the ability to cross-examine the witness—allowing the jury a greater depth of perspective into the details of the case. Additionally, streaming allows the judge to make rulings on the spot about the validity of a question, or even caution a witness that is trying to dodge a question—two key factors that are lost with remote testimony.

From a juror’s standpoint, the younger generations will be accustomed to and have experience with this technology already, so this change won’t require much of an adjustment for them. Older jurors will likely welcome the change of pace and will no longer be nodding off like they did in the days of transcripts and recorded video testimony.

Practical concerns

Benefits aside, there is just no substitute for the live experience. When testimony is given live and in-person, we can pick up on minute shifts that signal whether the witness is being truthful. In person there are subtle body language hints and almost imperceptible clues that provide more insight into what a witness may actually be thinking. These subtleties can go undetected in video communication.

Also, there is still a question as to what might be happening off camera—it’s possible that someone else in the room may be influencing the witness and their testimony. There’s no real way to control the outside influences that might be happening in a location that isn’t a courtroom.

Another major concern is the aura of the courtroom experience and the effect it has on the witness—the pressure of sitting in the witness chair with jurors and the judge watching—will be lost. On the flip side, the witness and the quality of their testimony might benefit from a lack of anxiety generated by the traditional courtroom trial experience.

Live video streaming simply doesn’t remedy all of the complications brought on by long distance testimony. There are significant challenges concerning the display of exhibits. How do you display a piece of evidence or a chart so the remote witness and the in-person jury can see it at the same time? Another concern is that critical elements like size and distance are not easily communicated in video.

Overall, we think Skype is preferable to reading someone’s testimony transcript or putting a video on a disc and pressing play. If taken to the extreme though, with all parties participating remotely, the integrity of the trial process could potentially suffer. It would completely change the traditional court system as we know it.

Embracing advances with caution

There are some logistical challenges, but it’s likely that video conferencing will be used in the courtroom more and more frequently in the future. That said, we believe erring on the side of caution with any new technology is wise. Assuming the judge agrees to it, Skype could be incredibly useful when you have a remote witness who is vital to the case, but cannot travel. But we’d hate to see Skype overused in the courtroom, becoming a convenience and not a necessity. It will be very interesting to see how this technology continues to impact us in the future.

 

*Names in this article have been changed to protect our client’s privacy. 

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

Cooper & Elliott 20/20: The Changing Landscape of Legal Research

2020BadgeAs we celebrate our firm’s 20 years in the legal profession and forecast the next 20 years, we want to highlight legal research—the cornerstone of building a solid case for a client.

Over the past two decades, legal research has gone from books to digital downloads, law libraries to computers and tablets. This is mostly a good thing for our profession. Attorneys now have much greater access to relevant law, such as court decisions. But for some attorneys, it also creates a temptation to cut corners and a danger of missing out on key information vital to a client’s case.

We take research very seriously here at Cooper & Elliott, and we feel it’s important to take a look backwards, to ensure we’re headed in the right direction.

The nineties: a noteworthy step forward

In 1995, Beanie Babies were the rage, millions were glued to their TV sets for the O.J. Simpson verdict, and news outlets around the world were heralding the futuristic technology of the World Wide Web.

For attorneys digging into research for a case, there were a couple of available options:

  • Schedule a trip to the local law library (during business hours, of course), pore over countless hardbound volumes of court decisions and history, and follow each new informational nugget to the next step of the process in building the case. If you compare that to Googling today, imagine each click of a link being another book you had to pull from the library shelf.
  • Or, take advantage of the new technology that had recently become available. LexisNexis was at the forefront of developing electronic accessibility of legal documents. When we first opened our doors, this tech took the form of a “UBIQ” desktop computer terminal. A few word or term searches punched into the little (for its time) red wonder, and voilà! You could print whatever information you needed on this odd silver paper (and watch some of the ink stick to your fingers). It was much easier than a trip to the library.

Those early computer models now belong in antique shops, but they did get legal information into the minds of attorneys faster than before.

Unfortunately, faster isn’t always better.

The caveat of the computer age

With court decisions available at their ink-stained fingertips in seconds, some attorneys fell into a trap: they stopped thinking about the “why” behind legal rules. Searching for a word or phrase often brings up the most recent court rulings on an issue, which some attorneys think is all they need. Those attorneys may not bother to research and consider the history of how we got to those rulings. That’s a dangerous problem we’ve seen develop over the past two decades.

Imagine driving on a freeway and taking the wrong exit by mistake. You could drive for hours down that road. The highway signs look similar, the road is paved the same, the mile markers look familiar, but you’re headed completely in the wrong direction!

The same could be said for doing only superficial research and assuming that a particular rule applies in your client’s case. For example, a dozen court decisions might apply a rule a certain way. But if your attorney stops his or her research after a quick review of only the most recent decisions using a certain word or phrase, the attorney might never learn of historical decisions that show the rule works differently in a case with your particular facts.

A crude digital search may only present a snapshot of the relevant court decisions. It doesn’t necessarily tell you how the law developed. But how the law developed might be critical to a client’s specific case, or even support advocating an extension or change to the law.

Classic techniques working in harmony with current technology

Let’s be clear: electronic search methods are a major boon to the legal profession. It’s much faster and more efficient than hours of library searching. But an effective attorney can’t give in to the temptation of stopping his or her research after reading a few of the more recent court decisions about a given rule. The attorney has to take advantage of electronic research to go beyond the superficial search results and dig deeply into historical precedent to understand how a rule applies—or doesn’t apply—to a client’s case.

And yes, sometimes this even means a trip to the old law library when a particular resource isn’t available online.

This approach to research is especially beneficial to preparing a case before it even begins. One thing we’ve noticed over the years is the tendency for some attorneys to start their deep legal research only after filing a lawsuit. But because we understand how to use both electronic and non-electronic research tools effectively, we prefer to dig deeper and understand the relevant legal rules and their history before we even file a lawsuit.

This lets us frame the allegations of the lawsuit the right way. It also lets us ask the right questions in discovery and depositions so that we can build the support that we need to win a client’s case at trial or negotiate a better settlement. Armed with a deep understanding of the relevant legal rules and the reasons why a certain rule may or may not apply in a given case, well-prepared attorneys are able to enter the legal arena with the knowledge necessary to get to the heart of that case in its early stages.

Our firm is built on a foundation of research. We cherish learning, and we’ve seen the benefits that our method of preparation brings for our clients and their cases. Using all available research resources and taking the time to build a deep understanding of the relevant law and its history is the key.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

20+20: The Blame Game – A Defense Tactic We Don’t Allow

The blame game in court – it’s not your fault

This year marks our 20th anniversary of fighting for our clients’ rights. We’ve seen a lot during that time, enough to know the tactics defense attorneys like to use again and again—and how to combat them.

In this article, we’re taking a look back at one of our earliest cases to illustrate how the defense often plays the “blame game” in court and how our team works with the families of victims to prepare them for this tactic. In the end, we make sure everyone realizes exactly where the blame is to be placed.

Tragedy strikes and the blame game begins

1995 – Meredith* and Sam* were motorcycle enthusiasts who loved cruising the open road together. Sam preferred a traditional ride; Meredith opted for the three-wheeled variety. One day out riding, life changed in an instant for the couple. Meredith saw the trouble just ahead. She watched helplessly as Sam’s motorcycle slid out from under him and he was thrown into a guardrail. It happened in seconds. Just like that, Sam was gone, and Meredith lost her partner and best friend.

What she also saw that day was the thin, clear strip of diesel fuel that had leaked onto the asphalt. Because Sam hit the fuel spill first, Meredith was able to avoid it. What she could not avoid, however, was the distressing tactic we see all too often in court: pinning the blame on the victim, thus compounding the tragedy.

It’s not your fault – and we won’t let them say it is

A defense technique. A legal tactic. To the defense, it’s business as usual, and it seems like a sound method of serving their client. To a victim, or, in this case, the family of the victim, it feels like a ruthless personal attack. The worst thing for our clients is the self-doubt it can make them feel.

In the court case we’re revisiting today, the attorneys for the trucking company involved in the spill used this empty tactic to blame Sam for causing his own death. Reasoning that motorcyclists should know they’re riding on two wheels, and that they should not run over liquid on the highway, they argued that Sam knew the risks and took his life in his own hands.

But distracting a jury by wrongly pointing the finger of blame was a strategy we were not going to allow.

The emotions of our team ran high as Sam’s family related what an incredible individual he was. Sam was not a reckless or unsafe man. He had plenty of experience on motorcycles, and his actions that day were ordinary for any rider. In fact, not knowing it was diesel fuel on the highway, Meredith herself intended to drive over the liquid in the seconds before the accident.

When the jury clearly stated that Sam was in no way responsible for his own death by returning a verdict against the trucking company, there wasn’t a dry eye among his family. Sam’s reputation was defended, his family was compensated, and we at Cooper & Elliott discovered that when we take on a case, we become a part of our clients’ family. It’s a role we are immensely grateful to play—and will always take seriously.

It’s not a game to us

For a defense team that doesn’t have a leg to stand on, pointing the finger of blame is often their best bet. Whether defense attorneys are trying to prove pre-existing conditions are the cause of current medical issues, or they’re attempting to make a case that a victim’s recklessness on the job was the cause of their injury, we recognize these actions for what they are—just legal strategies—and we make that clear to our clients. The blame game is all too common in court, and we expose it for what it is so honest people don’t have to remain victims.

Over the past 20 years, we’ve become personally involved with each and every one of our clients. We’ll continue to do so in the years ahead. We are always on your side when you need us most. Give us a call—we’re here to help.

*Names in this article have been changed to protect our client’s privacy.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

20+20: Tort Reform and the Decline of the Jury System

We’ve been reflecting on our firm’s twenty years in the legal profession and anticipating the next twenty. This article looks at changes to the jury system, and how a process supposedly meant to protect litigants could actually be creating an unsafe society.

The jury system under attack

The idea that an injured person should receive fair compensation goes back to the Latin phrase “restitutio in integrum,” which means restoration to the original condition. In civil litigation, the goal is to restore an injured party to his or her original state, to compensate for what was lost.

For hundreds of years, our society has resolved legal disputes in a unique way: We use juries of regular citizens. In the hundreds of cases Cooper & Elliott has handled, we’ve found that juries are an effective means to a fair and impartial verdict.

In the past two decades, however, we’ve seen our jury system come under attack. Media reports, big business lobbying, insurance industry propaganda—all have painted a picture that today’s juries simply do not have the wherewithal to get it right.

“Tort reform” is one branch of this attack, and it’s become a big problem.

Tort reform and its impact

A tort is a wrongful act (aside from a breach of contract or trust) that harms a person, her property, or her reputation, and entitles the injured person to compensation. A car crash caused by negligence, a wrongful death, medical malpractice, and fraud are all examples of torts.

The ability to sue a person or business for injuries they’ve caused is a hallmark of our justice system. But holding insurance companies and corporations accountable costs them money, so they have sought to limit two things: the ability of plaintiffs to file civil cases, and the amount of compensation juries can determine when rendering a verdict in a civil case.

Insurance and corporate interests have labeled this process “tort reform,” and it has become a hot-button political issue in this country.

Big businesses are fed up with having to compensate the victims of their negligence. Insurance companies are also losing court cases, sometimes for tens or hundreds of millions of dollars. They paint a picture with broad strokes to give the false impression that juries are handing out huge paydays to plaintiffs for frivolous lawsuits.

Our decades of litigation experience tells us that nothing could be farther from the truth. And this type of thinking is causing a greater problem, inflicting major damage on our jury system.

Creating a cycle

One benefit of tort litigation is to ensure that companies put the safety of individuals above all else. By limiting the ability to bring litigation or by capping damages, legislators effectively tell big businesses that safety does not have to be a primary concern, because they either won’t have to worry about a trial, or they’ll only ever have to pay up a ceiling of damages—just another cost of doing business.

With businesses insulated from judgment and jurors handcuffed from rendering a fair verdict, the injured parties suffer even more. It’s become increasingly difficult for victims of wrongful injury or the families in a wrongful death case to get back to the life they knew.

The end result of all of this? A society of businesses that are less concerned about safety. Less concern about safety leads then to more accidents and injuries. More injuries lead to more court cases. More court cases lead to a greater perception of frivolous lawsuits and the demand for increased tort reform. It’s a vicious legal cycle, but it’s one we hope will be broken in the future.

Our role in the future of litigation

Informing the public, educating individuals, and empowering potential jurors is part of our mission as we move into the next 20 years. Our hope is that once people realize that the steady decline we’re seeing in the jury system can be stemmed through knowledge of the facts, we’ll see a return of the ideals and principles upon which the jury system is based. Principles that encourage safety and help injured parties return to their lives.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.

20+20: The Fallacy of Frivolous Lawsuits

2020BadgeWelcome to the first in a series of articles reflecting on Cooper & Elliott’s past 20 years in the legal profession, and offering our thoughts about the next 20 years.

We’ll highlight some of the major legal events we’ve experienced inside and outside of the courtroom. We’ll discuss changes we’ve seen in the legal arena, as well as public perception of our industry. It’s a chance for us to gain perspective of where we’ve been, and forecast where we’re headed.

We’re beginning with a subject that often makes headlines: frivolous lawsuits.

Media impact on public perception

Talk of frivolous lawsuits has been around a while. Occasionally, a lawsuit may get filed with little or no chance of success because it lacks any merit at all. These lawsuits waste time, money, and resources, and they’re often meant to harass the opposition or make a quick buck off of big business.

We’ve all heard stories of burglars suing homeowners and negligent consumers suing corporations. Most infamous is the case from the early 90s, when 79-year-old Stella Liebeck sued McDonald’s because of injuries she suffered from spilling scalding coffee in her lap. The media went into a frenzy over the story. Tales of consumer negligence and a three million dollar settlement made the case a symbol of the frivolous lawsuits supposedly overwhelming our justice system.

The problem is, the details and facts of the case were lost in media sensationalism and public outcry. (You can check out the details of the story in this report.) Since that case, many people today believe that wrongful injury and death cases are frivolous by nature and are clogging up the courts. False perception took over reality.

The reality

The fact is, only about fifteen percent of the cases in our courts today are personal injury or wrongful death cases. The rest are criminal, domestic relations, foreclosures, workers compensation, businesses suing other businesses, and so on. Fifteen percent is far from a “drain” on legal resources, and the majority of injury and wrongful death cases are far from frivolous.

In the McDonald’s coffee case, some in the media simply got the facts wrong. It was reported that:

  • Stella Liebeck was driving while taking the lid off of her coffee (she was actually a passenger in a parked vehicle)
  • She received millions of dollars after the verdict (she didn’t – the final settlement amount was for less than $600,000)
  • Her injuries were minor (she actually endured numerous skin grafts to repair the third degree burns).

In addition, media reports often failed to mention that McDonald’s kept its coffee hot enough to cause severe burns within seconds, that McDonald’s had received hundreds of reports of burns caused by its coffee, and that Stella had originally asked McDonald’s just to pay her medical bills and filed her lawsuit only after McDonald’s refused.

But the damage to Stella, to both her body and her reputation, was done. Today, many cite this case as an example of a “get rich quick” scheme, but that summation could not be farther from the truth.

Turning the tide on public perception

Over the last twenty years, we’ve dealt with numerous family members involved in personal injury and wrongful death situations who hesitate filing a lawsuit because of the stigma involved with many of these cases. Businesses and insurance companies looking to avoid accountability count on this stigma to discourage people who have been harmed from even filing a lawsuit to enforce their rights.

That’s a sad situation. There are many folks out there who need to get back to their lives. They need to have some measure of quality of life restored. They need compensation because the person who took care of them is no longer with them.

Often, the first step we take is to help these individuals understand that their story has merit. Their life is meaningful. Their case is important and needs to be heard in front of an impartial judge and jury. Helping them overcome the misperception perpetuated by irresponsible businesses, insurance companies, and many in the media is the first step on the road to recovery.

For two decades, we’ve made it our mission to help people recover from terribly tragic events. And we will continue to do so in the years to come. With each case, with each family member we help, the public perception about lawsuits will change.

The outcome of any client’s case will depend on the particular legal and factual circumstances of the case.