Tag Archives: mediation

How to Use Technology Effectively in Mediation

Posted on

Yesterday, I co-presented a CLE webinar on “Technology for Better Mediation” along with two San Francisco trial attorneys, Miles Cooper of Rouda Feder Tietjen & McGuinn, and Jeff Smith of Abramson Smith Waldsmith. One of the things I admire about both Miles and Jeff is their forward-thinking use of technology and graphics in litigation—not just for trial, but also for briefing and mediation. Since both Miles and Jeff specialize in high-end personal injury and wrongful death litigation, these type of cases were the focus of this discussion. This post summarizes the practical take-aways we shared, which we hope will help attorneys get the best results possible for their clients.

When we talk about “technology for mediation,” we’re often really talking about ways to create visualizations of the case; that is, ways to show your case in an understandable, engaging way. You might be asking yourself, “Why is this something I should bother with for mediation?” Continue reading →

Graphics to Help You Better Build Your Construction Case

Posted on

When it comes to construction issues, I feel like the actor in that old ad on TV who says, “I’m not a doctor, but I play one on TV.” I’m not in the construction field, but I litigated construction cases for over a decade and consequently couldn’t help but develop an expertise in construction standards and practices. In a similar way, some med-mal attorneys I know have a better understanding of proper standard of care than even doctors do. When you have to prosecute or defend a case that revolves around highly technical issues, you’re sure to learn the subject inside and out.

With this in mind, making the transition from litigating construction-related cases to developing graphics for those types of cases has been a natural fit for me personally and for Cogent Legal as a firm. We strengthened our foundation in this area, so to speak, by bringing two architects onto the Cogent Legal team, whom I’ll tell you about below.

One construction attorney I know mentioned to me that he hesitates to use graphic design firms for litigation since he has to spend so much time explaining what he needs and what the case is about, which is frustrating. This is a shame since there are few other areas outside of patent law cases that virtually require the use of well-done graphics to present the case, since the cases are highly technical and lend themselves to visuals that show what caused problems, what the standards of care are and other issues.

To give attorneys ideas about how they can build and present their construction cases with timelines, animations and other interactive informational graphics, I asked my office to prepare an online brochure (click here or on image below; note, it must be viewed on a Flash-enabled computer or mobile device). Continue reading →

Two Top Infographics for Mediation of Employment Cases-And How You Can Make Them Yourself

Posted on

This is an abridged version of an article I wrote for the September 2012 issue of the California Labor & Employment Law Review. Reprinted with permission of the State Bar of California and the California Labor & Employment Law Review.

It’s a simple fact that if you face a high likelihood your case will resolve at mediation, then you should put all you can into mediation to get the best result for your client. This includes using courtroom graphics not just in court for trial, but for mediation.

Having represented many clients in employment cases, from wage and hour to discrimination to class actions, I saw that certain issues arise in almost all employment cases and are especially well suited for graphic presentations.

This post focuses on two types of graphics particularly effective to use in mediation for employment cases: timelines and organizational charts. I’ll describe some basic tips to make them on your own, and discuss more advanced options.

Continue reading →

Three Tips for Attorneys to Present Economic Data (and Not Be Boring)

Posted on

At a recent seminar I attended, Judge M. Lynn Duryee of the Marin County Superior Court had a great story of an attorney who stood up in opening statement and said, “I’m going to call an economist who will testify about the damages caused by the negligence of Defendant, but I warn you it’s going to be really boring.” Many attorneys would not be so bold as to warn the jury that the economic loss part of the case is going to be boring, but I’ll bet many do think that every time.

Ask yourself if any juror is likely to remember something that is boring, and the answer clearly is no. The question attorneys should ask themselves is, “Does my presentation on economics have to put everyone to sleep?” The answer again is no. This post will provide a few key tips on how to transform economic data into engaging, easy-to-understand visual presentations. Continue reading →

How to Avoid Information Overload When Presenting Your Case

Posted on

This post is written by Cogent Legal’s Senior Producer Dave Nugent.

Whenever I begin to conceptualize a visual presentation for a client, I try to be sensitive to information overload—that is, where the bell curve of retention and cognition takes a steep dive toward Hades. But how much information is “overload” for a juror or mediator?

Psychological studies and neuroscience show that we possess inherited built-in limitations to our working memory—a so-called mental bandwidth. As an attorney, you need to keep these limitations in mind when preparing your case for presentation. Continue reading →

Why It Pays to “Visualize an Injury” for Mediation or Trial

Posted on

In a personal injury case, attorneys on both sides might focus so much on the issue of liability that they give short shrift to thoroughly understanding the injury itself. This often happens in catastrophic cases where the serious consequences of an injury are undisputed.

During the many years in which I handled and tried PI cases, I myself often fell into the trap of spending so much time focused on liability issues that I didn’t fully visualize and grasp the nature of injury itself. I now recognize that this is a mistake and have since become a big fan of what I call “Visualizing the Injury.” Here’s why, and how to do it: Continue reading →

California Courts in Crisis: San Francisco Task Force Needs a “Plan B”

Posted on

Ever get the feeling there’s nothing you can do? That’s the feeling that I and perhaps many other attorneys had when we departed a meeting last week at the San Francisco Bar Association to address the fiscal crisis that is shutting trial courts statewide and hitting San Francisco particularly hard, creating an unfathomable backlog to civil litigation.

I attended the July 30 meeting looking forward to a robust discussion about creative ways that attorneys can get together to help in the court crisis situation. As detailed my earlier blog post, “5 Ideas on What Attorneys Can Do About the California Courts in Crisis,” I believe the legal community needs to face the real possibility of no additional funding and come up with a “Plan B” to cope with the reality of a decimated Superior Court. With nowhere near the number of judges and court staff needed to handle cases, we need to figure out how to keep cases moving forward until significant funding is restored—if it’s restored. Continue reading →

Visual Presentations in Court: A New Study On What Works Best And Why

Posted on

This post is written by Dave Nugent, Cogent Legal’s senior producer, and draws on a study reported by Ken Broda-Bahm, PhD, of Persuasion Strategies. My thanks to them both. - Morgan

“Don’t say the old lady screamed—bring her on and let her scream.”

That is the sage and strategic advice from one of the masters of persuasive storytelling, Mark Twain. Twain’s words are profoundly “on mark” and could be an informal mantra for how we at Cogent Legal counsel our clients to prepare their case presentation.

For ADR or trial, Twain’s call for “show, don’t tell” or what we might call “illustrative demonstration” is a winning strategy to help convey a presenting attorney’s story, decipher complex content and cogently navigate themes. Now, a comprehensive visual persuasion study involving 1,375 mock jurors not only adds hefty weight to the already well-weighted argument for visual support of legal oral argument, but also sheds light on the best ways to use graphics.

The study by Persuasion Strategies was reported recently in a five-part series on their blog Litigation PostScript. This post considers some of their key findings. Continue reading →

5 Ideas on What Attorneys Can Do About the California Courts in Crisis

Posted on

The news out of the California justice system is somewhere between dire and disastrous. All signs indicate it’s only going to get worse in California, and attorneys are scrambling for ways to deal with this crisis.

What can we in the legal community do? Below, I suggest steps attorneys can take to handle the overburdened court system and help ameliorate its unacceptable delays. First, some background:

Presiding Judge Katherine Feinstein of the San Francisco Superior Court has stated that “the civil justice system in San Francisco is collapsing.” The cuts to the San Francisco Superior Court will necessitate the closure of 25 of the 63 existing courtrooms and layoffs of 40% of court personnel. Already, eleven hearing officers/commissioners have received notices of separation. Judge Feinstein continued that, “we will prioritize criminal, juvenile and other matters that must, by law, be adjudicated within time limits. Beyond that, justice will neither be swift nor accessible.” Continue reading →

Why Attorneys Should Treat Mediation Like Trial

Posted on

These days, the case that gets tried is the exception, and the case that settles at mediation is the rule. A study by the National Center for State Courts concluded that only about 3 percent of civil cases go to trial, while the other 97 percent are settled or dismissed.

This means that mediation is the de facto trial, and you should care and prepare as you would for a judge and jury.

While the atmosphere of mediation invites informality, neither side can forget that the goal is to obtain the highest amount for settlement from the plaintiff’s perspective and the lowest amount from the perspective of the defense, just as if the case were being presented to a jury. Continue reading →