On March 24, 2015, I sat in the back of Judge Harold Kahn’s crowded courtroom in San Francisco Superior Court. The parties in the Ellen Pao v. Kleiner Perkins sex discrimination case were delivering closing arguments.
Both sides used modern trial tools: trial presentation software, trial graphics, and presumably trial consultants. After Pao lost, Kleiner Perkins sought costs of nearly $1,000,000.
Trial is never cheap, but does it really take a million in costs to effectively try a case today?
To answer that question, I asked several trial attorneys including Ellen Pao’s attorney Therese Lawless and trial consultants Mary Jo Koonan and George Kich.
Using Trial Consultants Efficiently
Trial consultants can be as expensive as attorneys, and many clients are unwilling to take on the extra cost. But one can engage a consultant cost-effectively. Consider:
- Engage early, before the close of discovery. Two hours early on can help focus discovery and avoid wasted attorney hours.
- Hire consultants for a day to prepare key witnesses. Effective ones can correct witnesses more effectively than trial lawyers.
- Have the consultant spend one day helping you decide which evidence to highlight and which witnesses are best to present that evidence to the jury.
Conduct Mock Juries Yourself
If a case is worth trying, it is worth testing. Some tips:
- Hire strangers and don’t let on which side you’re representing. Offering $100 on Craigslist should be enough to yield a demographic similar to your jury.
- Pay attention to the negative reactions more than the positive ones.
- Consider two separate mock trials. If both groups are concerned about the same issue, it’s not an anomaly and you must pay attention. Use the data to guide your voir dire.
Cost-Effective Exhibit Management
Avoid expensive trial software that requires a manned hot seat. Instead, manage exhibits yourself. Today, document cameras no longer cost thousands. Try the Ipevo VZ-1 document camera ($138). Save your trial budget for professional trial graphics on key issues.
Trial is expensive, but winning comes down to the story. Technology and expensive experts shouldn’t stand as a barrier to a winning presentation.
About the author:
Charles H. Jung is a trial lawyer at Nassiri & Jung, based in San Francisco and Los Angeles. His practice emphasizes trial advocacy and litigation in trade secrets, class actions, and employment law.