Dan Small: In a previous episode, we talked about the importance of ruthlessly cutting back on complex cases to get them ready for trial. Every lawyer handling a complex case needs to take a pair of pruning shears and sometimes a meat axe to the case to make it as manageable as possible. Now, suppose you've cut as many claims as you can and pared your witnesses down to the minimum. Your case, unfortunately, is still pretty complex.
Where do you go from here?
My first piece of advice is to think long and hard about whether you can do more, whether you can cut more. Are you really sure you've done everything you can? Are you keeping things from the case because they're truly necessary or because you're overly invested in them?
Often a football team will hold on too long to a top draft choice who hasn't panned out. Ego and embarrassment play a role in that, along with a large dose of wishful thinking. It's hard to admit, even to yourself, that you've wasted time and resources on something, and that it's time to let go and move on. Besides, you've become fond of that player or that piece of evidence. But you need to be able to cast a cold eye on your case and on every part of it and make difficult, even painful, choices to eliminate unnecessary baggage.
Second, chip away at the number of questions and words you use within the case. Don't eliminate what you really need. But it's almost always possible to find places to trim. This is another reason to sometimes use a script. It's hard to eliminate excess words from an examination that you haven't planned out.
Third, consider how your evidence can be summarized. Rule 1006 of the Federal Rules of Evidence is your magical guide. It permits the use of summaries to prove the content of voluminous writings, recordings or photographs that cannot be conveniently examined in court. The rule has been liberally interpreted by courts who want to avoid drowning in complexity. Lawyers don't use the rule as often as they should, even in complex cases. Much of the time, it's unnecessary to admit large numbers of documents to prove a particular point. That's especially true for documents like financial and tax records, which are relatively easy to summarize.
For example, the financial condition of a complex business enterprise may be summarized in a single page document, but lots of other records, such as telephone and medical records, can also be handled in a similar summary way. Rule 1006 does not contain any specific limits on the subject matter of the summary, other than the requirement that the records be, open quote, "voluminous," closed quote and, open quote, "cannot be examined conveniently in court," close quote. In fact, the rule expressly permits summaries of items such as recordings and photographs. It can thus be a tremendously helpful tool to eliminate hours of technical or repetitive testimony.
Summaries don't just save time. They generally have a more powerful impact than the mountain of evidence that they replace. They do, however, have their limitations. To maximize their impact, remember three rules.
- First, use visual aids. We live in a visual world. Juries don't just want to hear things. They want to see them. They want to see the concept, not the data. Summaries should be presented with charts, graphs or drawings. Whatever can create a visual impact that magnifies the impact of the underlying data.
- Number two, keep it simple. Don't weigh your summaries down with more information than you need. Don't overstate the facts. Don't oversimplify them. And don't omit important items. Your opponent will notice and either have your summary excluded or subject your witness to a tough cross-examination. But don't think that each summary has to summarize all of the evidence. Two or three simpler graphics can often be more effective than one overly complex summary. And yet, we see all the time, demonstratives used in court that look like the plans to the Mars Landing Rover or something. The diagram itself is so complicated, how can it help the jury to understand a complex case? With modern technology, there are lots of ways to present summaries in ways that are clear, interesting and easy to follow. By the same token, there are lots of ways to clutter them with unnecessary or distracting elements, such as pointless animations. Remember that you're not there to put on a technical show. You're there to tell the jury the story.
- Third, don't overuse summaries. The usual rule applies: all things in moderation. If you overuse summaries, there is a danger that your important points will be lost among the noise. The goal is to communicate and by communicating, to persuade.
If you're stuck trying a complex case, do everything you can to make it less complex and more understandable. Using summaries in place of voluminous records and tedious testimony is an important part of that process.
