This is an edited excerpt from an article written by Rich Lomurro in the June 2021 edition of New Jersey Lawyer, focusing on trial advocacy and preparedness. Read the full article and issue here (login required).
The recent pandemic has forced us to think differently. The way we developed our cases for trial was often in person and intimate. Now, it is possible some clients have gone a year without being in their lawyer’s office. Discovery has been largely conducted from a computer screen. This includes depositions, mediations, arbitrations, settlement conferences, and even jury trials. It is likely things may never return to the way they were.
How then do we tell our client’s story in this new virtual world and bring that experience to trial? Thankfully, a virtual world brings opportunity along with its challenges. Figuring out how to use those opportunities is key. A great trial lawyer can use the tools within the new virtual world to maximize their client’s chances for a good outcome.
The Smartphone: A Production Company in Your Client’s Pocket.
Lawyers no longer need to hire a production company to do a “day-in-the-life” video. Smartphones have the ability to document your client’s story in clear high-quality videos and pictures taken by your client and their family.
Two hundred sixty million Americans, about 80% of the country, have smartphones, according to a Newzoo Global Mobile Market Report.
The odds are, therefore, your client has the ultimate machine for documenting their injuries and telling their story right in their pocket. They can take crystal clear pictures and video in real time and get it to their legal team for the ultimate storytelling experience at trial. There is simply no reason a jury should not see visual evidence of your client’s hardships and history at trial.
Take for example a client who had a recent back fusion. His family has a pre-paid vacation planned. Flying was not an option. They had to drive, 24 hours, to Orlando. Throughout the trip, the client’s wife took pictures of the things they did on their ride. They stopped at south of the border and the amusement park rides where the husband had to stand and watch while the kids rode the merry go round and Ferris wheel with Mom.
They went swimming in the Gulf of Mexico and built sandcastles. The client stayed at the hotel in bed as he was in pain from the ride. The client’s wife had pictures and videos of everything, including the client waiving from the hotel room at the rest of the family before they went to the beach.
She also had pictures of the client in the car in pain as he suffered through the long ride. These are the little things that go a very long way with jurors and adjusters.
And it was not just on vacation. The wife was able to record the same compelling footage when they returned home and took the kids to soccer practice, the bus stop, playing in the backyard, etc.
Lawyers should encourage their clients to be active with their smartphones.
Defense counsel used to try to use this against plaintiffs. They would make them seem like fakers out to get money by carrying around a camera to take pictures for their lawsuit. Thankfully those days are over. Your next jurors most likely have cameras in their phones and use them on a daily basis.
Being able to present pictures and videos from your client is extremely valuable at trial. Those visuals will guide the jury in their understanding of your client’s damages. After all, a picture is worth a thousand words.