The True Crime Story
The communication of ideas and feelings through storytelling and visual art reaches back to the earliest stages of human history. Myths developed to explain the mysteries of the universe and pictographs and hieroglyphics spoke both of daily life and religious insight. Given the susceptibility of human beings to the visuals and narratives, these modes have been used successfully by attorneys in courtrooms to convince a jury of peers about innocence or guilt.
Lately trial lawyers have started to use the power of technology to join story and exhibit in a compelling visual and audio tale. The result is juries that are sitting tall and attentive — more easily following the thread of the story, better assimilating the evidence, and more aware of the context.
Michael Rogers, president of the New York-based Ronin Consulting, was first introduced to using technology in presentations when he started to teach for the National College of District Attorneys about a decade ago, and he began using PowerPoint and other software in the courtroom.
In 2000 he approached the dean of the Chicago Kent College of Law at the Illinois Institute of Technology, where he earned his JD and had been an adjunct professor since 1994, to get his support in developing a curriculum for litigation technology. He ended up with enough material for a book, “Litigation Technology: Becoming a High-tech Trial Lawyer,” published by Aspen in 2006.
Rogers is teaching a class for the New Jersey Institute for Continuing Legal Education on “Becoming a High-Tech Trial Lawyer,” on Saturday, May 17, at 9 a.m. at the Sheraton at Woodbridge Place in Iselin. Cost: $169. For more information and to register, go to www.njicle.com.
Rogers shares an example of one of the electronic tales he has created to convince juries in personal injury cases.
A vital woman was hit by a van at 71st Street and Columbus Avenue in New York City and as a result will be spending the remainder of her years at her sister’s home staring out the window, not even able to do the needlepoint she had loved. In an examination before the trial, the lawyers had interviewed a civilian witness and asked her to draw a stick figure on a photograph of the corner where the accident occurred. Rogers then used the picture as an opening frame in the storyboard he was developing to make his case. “The case is a story,” says Rogers, “and the beginning in this story is a woman getting injured.”
The story builds as Rogers displays more pictures to tell it, drawing legal conclusions from character, setting, and plot as the tale plays itself out: a van driver whose license had been suspended, the ambulance report of profound swelling to the left eye, marks on the Glasgow Coma Scale indicating the patient was near death, X-rays of fractures and of a filter to stop blood clots; a CT scan of bleeding in the brain; a picture of irreparably broken axons; and so on.
Rogers hit the mark and won $3 million for the woman. “It gave her family enough to take care of her for the rest of her life,” he says.
Rogers offers a number of suggestions for using technology to prepare a compelling case:
Get to the raw data from state and local police departments. An effective subpoena can force the police to turn over raw data rather than the more standardized and massaged data stored in electronic data warehouses. Once Rogers obtains the raw data, he uses the Sanction software package to scan it, converts it to machine-readable text, and build a database.
Consider how to make the story speak to people who have nothing to do with the case. Ask yourself, suggests Rogers, “What document, image, video clip, or demonstrative device can I come up with to make this story make sense?”
Develop the theme of the case. The theme should be the answer to the following question, says Rogers: “What are the moral and legal reasons that jurors can consider when deciding that my side should win?”
Organize the case materials and establish a timeline for the case. Rogers suggests working methodically through the case materials, thinking strategically and tactically about effective visuals. The goal is not a flashy presentation, but figuring out how to put the pieces together in a way that makes sense to the jury.
Putting together a visual presentation of a case requires lawyers to organize their thoughts. “The more you think about what you want to do and say in front of people, the better organized you will be,” observes Rogers. And the storyboard will in turn help focus the jury’s attention both on the facts and the legal deductions they suggest.
To start organizing the masses of material for a case into a visual presentation, Rogers suggests starting with the basics. “If you are the plaintiff, what proves the elements of the case?” he asks, “and if you are the defense, where is their weakness?” And as attorneys are sorting through the material, they should continually be asking themselves, “What is the objective here? What am I trying to prove?” Then he adds, humorously but with deadly seriousness: “No, what am I really trying to prove?”
“In the storyboard you have focused what you will show the jury and your thinking about what the jury will take from what the witness says,” says Rogers.
As a check on the storyboard’s effectiveness, Rogers advises attorneys to envision themselves talking to their mothers over a kitchen table. “You should be able to ask these two questions: What did I say? Who should win?” he says. “If the answer to either of these questions is confusing, work on the story again.”
Try out theories of liability with a focus group. “A focus group can help a lawyer get a second opinion from people in the community about the strengths and weaknesses of his case,” says Rogers. The goal is to bring together a cross-section of people and listen to what they think about the different issues that come up in a case. During this mock trial, the lawyer also gets a feel for the effectiveness of an electronic case presentation.
Rogers developed an electronic storyboard in defense of a man who lost his leg when a train ran over it. The initial version of his presentation focused on the rules for running trains — for example, how far ahead the headlights should be illuminating the tracks. But the text-intensive presentation he had prepared did not click with the focus-group participants, and Rogers used their reactions to redo his case. “We learned that it had way too much text,” he says. “We were burying people in paper before putting in the context of the story.”
“You want to see how people react to your facts,” says Rogers. From the focus group, he culled a number of observations: The victim would have been able to see the warning lights of the oncoming train. Although the victim should have used the pedestrian bridge, his presence on the railroad bridge was unavoidable because he had gotten drunk and let himself pass out. And finally, the train company failed the negligence test, that is, “What would a reasonably careful person have do?” A reasonable person would not be pushing two gondolas with an engine in low light, just to save 15 minutes uncoupling them, and would not be traveling too fast for the low-light conditions.
As a result of the focus group, Rogers changed his approach. “We went from trains are big and dangerous to the company has a culture of indifference,” he says, “and we cut back on documents.”
In place of the endless list of rules, he included pictures: one showed that when the victim first came into view, the train was 97 feet away and had a stopping distance of only 85 feet; video clips from the deposition, one showing a guy who said that the rules would have allowed him to hit a baby carriage (on the assumption that it was discarded); one of the conductor holding a lantern, but also a radio and a cell phone, with the question “Will you pull the lamp out and look on a bridge when you don’t expect anyone on the bridge?”; the conductor offering contradictory information: he said in a deposition that the train was 20 to 30 feet away when he saw the victim crawling toward the train, and he told the police that the distance was 150 to 200 feet.
Use different segments of the storyboard as exhibits with different witnesses. In the case of the woman hit by the van, witnesses included the owner of the van company whose driver had a suspended license, the emergency medical technicians, and their descriptions of what they did at the scene; the neurologist and how he had treated the patient; the neuroradiologist and the pictures he took that delineated the victim’s medical status. Software tools can help the lawyer to select easily among the segments of the storyboard to find those relating to a particular witness’s testimony.
Rogers uses PowerPoint and Adobe Acrobat Professional as well as five other software packages: Sanction for document management and legal presentations; Verdical to store and manipulate case databases online, manage documents and transcripts, and organize and present cases; SmartDraw to create business graphics; TimeMap to create timeline graphs; and TextMap to create a database of electronic transcript files from depositions, examinations, and other proceedings.
Rogers grew up in Oak Park, Illinois, a suburb of Chicago; his father was a psychiatrist and his mother a clinical social worker who stayed home with her children. He majored in English literature and theater art and design at Regis College in Denver, Colorado, graduating in 1985.
Rogers’ transition from theater to law was not straightforward. He had been dancing for Ballet Denver and planned to go to New York, when he got into a dispute with his mentor.
He decided to walk away from the theater and learn architectural design and law to prepare for designing and building his own buildings. But a law-school class in trial advocacy changed his life. “I caught a bug,” he recalls. “I liked talking to juries and the pressure that comes from putting on a case.” He also had supportive professors who believed in him, and he competed successfully as part of the National Trial Advocacy Team and was a member of the Moot Court Society.
After getting his JD Rogers went to work at the Cook County State Attorney’s Office and stayed for 17 years. He moved from prosecuting in the juvenile courts to gang crimes and then became a supervisor in the auto theft insurance fraud investigations unit. He also prosecuted death penalty cases.
In 2005 he left the prosecutors’ office, wrote his book, and started Ronin Consulting to help lawyers organize and present cases at trials. Rogers typically consults on huge cases like plaintiff’s personal injury cases where they are looking to recover more than a $1 million in damages or defense attorneys who are defending claims of more than $5 million. He also runs an externship at Chicago Kent, taking students who did well in his classes and having them work on creating timelines and organizing huge, high-stakes, high-pressure litigation.
Rogers chose the name of his firm as a celebration of leaving the government bureaucracy and a metaphor for the work hedoes. “Ronin,” he says, “is the term for a samurai without a master.”
— Michele Alperin