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Navigating the Ethical Use of Body Language in the Legal Setting


 

“To the ordinary observer, a man is just a man. To the student of life and human beings, every pose and movement is a part of the personality and the man.”

Clarence Darrow
How to Pick a Jury; Esquire Magazine (May, 1936)


Utilizing nonverbal communication techniques in the legal field is not new ground, though the ethical implications are still being heavily debated among judges, litigators, and experts alike. Concerns such as witness coaching and the potential discoverability of videotaped mock depositions are forefront issues in this debate. How to navigate this evolving atmosphere and understanding the unintended implications is challenging for many in the legal industry.

With respect to mock depositions and mock trials, KT Designs recommends utilizing mock depositions for preparing both experienced and inexperienced witnesses; however we do not advise counsel videotaping these sessions because of the discoverability concerns covered in a white paper written by Jones Day’s Mark Herrmann and Pearson Bownas.

Instead, when dealing with an inexperienced witness, we recommend having a “dummy” video camera set up adjacent to the witness (but not enabled for recording) during your preparation so that your witness may acclimate to being in front of the camera.

In the United States, the ABA Model Rules of Professional Conduct provides guidelines that include how lawyers can prepare witnesses and, more specifically, forbids counseling witnesses to offer deceptive testimony or evidence. There are no rules that cover coaching witnesses on body language, demeanor or even how to appear more likable or endearing. Putting aside the impropriety of coaching witnesses on content, advising them on body language in court and, more importantly, on the witness stand, is legally and ethically acceptable.

It should be noted, however, that witnesses are unpredictable enough during examination without feeling the need to assume the role of lead actor in a courtroom drama. One of the most recent cases where accusations of such coaching arise is in the Oscar Pistorius murder trial in South Africa. The South African court system is vastly different than the US Court System, but the rules related to witness preparation are similar.

Pistorius, who was being tried for the murder of his girlfriend, Reeva Steenkamp, was accused of hiring a well-known South African actor to coach him on how to behave at his trial. On its face, the allegation of taking acting lessons sounds far- fetched. The Pistorius camp vigorously denied the claim – but could there be merit in such a contention?

While we cannot say for certain that Mr. Pistorius hired anyone to advise him on how to act during court proceedings, it is clear from his flamboyant, sniveling, vomit-laden performance that he was intentionally overt in displaying his emotions for all – especially the judge – to see. oscar-pistorius

Ultimately the question should not be ‘did he hire an acting coach’, but rather, ‘did his melodramatic theatrics in court help his cause’? The guilty verdict handed down in September 2014 suggests otherwise.

To the trained eye, Mr. Pistorius’ body language betrayed his exaggerated performance, and some experts suspect his attempt to garner sympathy from the court for his plight fell flat as well. Additionally, it is of note that Pistorius was at his most emotionally animated during testimony and presentation of evidence that contradicted his version of events and that his testimony was riddled with distancing language and inaccuracies.


This article is based on the KT Designs’ white paper “Body  Language, Technology and their Application in the Legal Industry.” To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/

KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.

This article, co-authored by Kristin Thomas, owner of KT Designs, and Noel Bagwell, President and Chief Legal Officer of Executive Legal Professionals, PLLC, was published in Volume 16 | No. 7;  October/November 2016 edition of the Nashville Bar Association’s Nashville Bar Journal. You can view the full version of the Nashville Bar Journal here.


Best Practices for Conducting Voir Dire in the Information Age

When picking a jury, attorneys must consider many details about the jurors. Everything is scrutinized, from employment, prior experiences, and the responses potential jurors give to questions to their appearance and body language. Our internet-saturated world, and especially the wide-spread use of social media, provides an additional layer of complexity to jury selection not present a decade ago.

While 76% of American adults use the internet and 65% of all US adults use at least one social media platform1, the legal industry is taking a delicate approach to its use as a research tool during voir dire. The Supreme Court of Tennessee, like many states, has weighed in on issues relating to jurors’ use of social media, but, as one might suspect, the opinions issuing from so many states’ highest courts on this issue vastly differ from one another.

To help readers improve their understanding of how other jurisdictions are handling similar questions, in this article the authors will examine a comparison between the ABA formal opinion 466, cases in Tennessee and Kentucky, and finally the New York City Bar Ethics Opinion. Also, the authors will be providing a few helpful suggestions regarding what they believe are best practices relating to the use of social media as such use relates to voir dire.

ABA Standing Committee on Ethics and Professional Responsibility Opinion 466: Formal Lawyer Reviewing Jurors’ Internet Presence

The ABA’s ethics opinion 466 is one of the more widely cited bar ethics opinions on this topic. It states, in part,

“Unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial, but a lawyer may not communicate directly or through another with a juror or potential juror.

A lawyer may not, either personally or through another, send an access request to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by Model Rule 3.5(b).

The fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of Rule 3.5(b).

In the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal.”2

Tennessee

During one of the better-known cases in our state, State of Tennessee v. William Darelle Smith, the accused appealed his murder conviction on the grounds that a juror communicated with the testifying medical examiner through Facebook

As a result, Mr. Smith did not receive a fair and impartial trial. Tennessee Supreme Court affirmed the decision of the trial court, stating that,

“Despite all the evidence that the two were casual acquaintances at best, the substance of the message itself raises some doubts as to the impartiality of the juror. It was highly improper for the juror to disregard the instructions which the trial court had given regarding contact with witnesses. In addition, the tone of the message, which is in substance a compliment on Dr. Lewis’s testimony, suggests partiality. Finally, we note that the discussion of the impropriety of the message appears itself improper. While Dr. Lewis testified that she intended to convey, in her response to Mr. Mitchell, that she found his communication inappropriate and that it could be the basis for a mistrial, her response as written implies that she believes that their acquaintanceship itself could be the basis of a mistrial, and it suggests doubt regarding whether the relationship will remain undisclosed. Mr. Mitchell’s reply demonstrates that he is aware of the risk of mistrial and has concealed the relationship thus far. Ultimately, Mr. Mitchell did not reveal either the relationship or the communication, although Dr. Lewis did so at once. The Tennessee Supreme Court, in remanding the case, observed the importance of avoiding contact on social media that could ‘spawn public doubt about the capacity of the modern jury system to achieve justice.’

Nevertheless, we conclude that the State has sufficiently rebutted the presumption of prejudice through the testimony of Mr. Mitchell and Dr. Lewis. As the trial court found, the relationship of the parties was very distant. Facebook ‘friendships’ frequently exist between those who are indifferent to one another. While the tone of the exchange raises the specter of prejudice, Mr. Mitchell’s unwarranted exuberance on discovering an old acquaintance does not demonstrate actual partiality, and all testimony presented at the hearing served to show that the juror did not harbor bias. Furthermore, Mr. Mitchell’s comment to Dr. Lewis was not based on his acquaintance with her but was rather his evaluation of the testimony presented at trial. A juror is, of course, free to evaluate the testimony of a witness, although communicating such an appraisal to the witness herself during trial is improper. As noted above, the proof in the case was particularly strong, and the testimony of the witness was mainly concerning uncontested issues… We conclude that the State adequately rebutted the presumption of prejudice and that the defendant has not established that juror bias deprived him of the right to a fair trial.”3

 Kentucky

The Commonwealth of Kentucky is our closest neighbor to weigh in on the issue of social media and jurors. In the case Kentucky v. Sluss, one juror had denied having a Facebook page and another failed to disclose their friend status with a family member of the deceased.

 

An appeal on behalf of Mr. Sluss was filed, in part, based on juror’s failure to disclose.

The Supreme Court of Kentucky ruled that,

“[A] juror who is a ‘Facebook friend’ with a family member of a victim, standing alone, is arguably not enough evidence to presume juror bias sufficient to require a new trial. As with every other instance where a juror knows or is acquainted with someone closely tied to a case, it is the extent of the interaction and the scope of the relationship that is the relevant inquiry.

In regard to jurors who admitted to being on Facebook, the trial court attempted to make this inquiry by asking whether they had read anything about the case on the website. That the court actually made this inquiry strongly suggests that a juror’s status on Facebook was not sufficient standing alone to decide whether the juror was disqualified. This is correct, because it is the closeness of the relationship and the information that a juror knows that frames whether that juror could reasonably be viewed as biased. The fact that jurors were ‘friends’ of April Brewer, absent other evidence of a close relationship or knowledge, is not sufficient grounds for a new trial.

The Commonwealth correctly argues that the Appellant must do more than simply speculate that the relationship might have somehow affected the jury verdict. Thus, the mere fact that Amy Sparkman–Haney and Virginia Matthews were April Brewer’s Facebook friends, which is the extent of the proof the trial court heard about their acquaintance, is not grounds for a new trial.”4

New York City Bar Ethics Opinion 2012-2: Jury Research and Social Media

One of the more controversial Ethics Opinions issued is the NYC Bar Ethics Committee, Opinion 2012-2, which warns lawyers that, while potential jurors’ digital footprints should be researched and monitored, if a juror becomes aware that one of the lawyers is viewing their social media accounts, it could be considered prohibited communication and may result in reprimand for violating the NYC Bar rules of professional conduct. In part, the opinion states,

 

“We conclude that if a juror were to (i) receive a ‘friend’ request (or similar invitation to share information on a social network site) as a result of an attorney’s research, or (ii) otherwise to learn of the attorney’s viewing or attempted viewing of the juror’s pages, posts, or comments, that would constitute a prohibited communication if the attorney was aware that her actions would cause the juror to receive such message or notification.

We further conclude that the same attempts to research the juror might constitute a prohibited communication even if inadvertent or unintended. In addition, the attorney must not use deception—such as pretending to be someone else—to gain access to information about a juror that would otherwise be unavailable. Third parties working for the benefit of or on behalf of an attorney must comport with these same restrictions (as it is always unethical pursuant to Rule 8.4 for an attorney to attempt to avoid the Rule by having a non-lawyer do what she cannot). Finally, if a lawyer learns of juror misconduct through a juror’s social media activities, the lawyer must promptly reveal the improper conduct to the court.”5

Best Practices: Social Media and Jurors

The regulation of communication in the legal industry still lags behind the technological advancements which have been, and continue to be, both benefit and bane to lawyers since the Internet became ubiquitous. Even though lawyers are, now more than ever, required to exercise keen discernment regarding what is and what is not ethical communication—both in form and in substance—one of the most frustrating facets of the task of exercising such discernment is trying to divine the goals of the various regulators.

The incentives of regulators drive the rules they create, but these incentives are as varied as are the backgrounds, political opinions, and ethical postures of the regulators themselves. So, what’s a good-intentioned lawyer to do? Many prefer to let their conscience be their guide, and presume they will have an opportunity to ask forgiveness if they should stray across some invisible ethical boundary. Others prefer to play it safe, and forego even the appearance of what might possibly begin to be construed as a potential infraction.

In an effort to assist our fellow attorneys in their struggle to maneuver through the obscure ethical chaparral of the digital frontier still being slowly colonized by regulators, we submit for your consideration the following suggested best practices for lawyers, when using (or not using) social media in connection with voir dire and other juror-related activities. facebook_like_logo
  1. Know and understand the local rules. When it comes to jurors and social media, the most important thing to remember is that the local rules governing lawyers’ use of social media, in connection with voir dire and for other purposes which might impact or be perceived by jurors, substantially vary from jurisdiction to jurisdiction. When entering into a jury trial, a lawyer should briefly review the local rules respecting use of social media, especially in connection with voir dire. What a lawyer can and cannot do is ultimately governed by the local rules of the jurisdiction in which the case is being heard; ignore them at your peril.
  2. Don’t try to circumvent the rules using a proxy. Just follow the rules. Trying to be clever and get around the rules by using a proxy will not work, because, especially in New York, “it is always unethical … for an attorney to attempt to avoid the Rule by having a non-lawyer do what she cannot.” Honesty is the only policy, and honesty involves adhering to both the letter and the spirit of the law.
  3. Restrict your activity to passive observation. Generally, according to the ABA, unless limited by law or court order, a lawyer may review a juror’s or potential juror’s Internet presence, which may include postings by the juror or potential juror in advance of and during a trial. Passive review, not direct communication with a juror, is what is permitted, here. What lawyers want to avoid is any interactivity with the juror, aside from just passively browsing their Internet presence data.
  4. Don’t send access requests to (potential) jurors. Generally, according to the ABA, a lawyer may not communicate directly or through another with a juror or potential juror. This includes sending access requests to a juror’s electronic social media. An access request is a communication to a juror asking the juror for information that the juror has not made public and that would be the type of ex parte communication prohibited by ABA Model Rule 3.5(b). So, lawyers should avoid adding jurors or potential jurors as LinkedIn connections, Facebook “friends”, etc. during the course of voir dire or any other part of an ongoing trial.
  5. Be careful about triggering notifications resulting from settings! Except in New York, and possibly a few other jurisdictions, generally, according to the ABA, the fact that a juror or a potential juror may become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such does not constitute a communication from the lawyer in violation of ABA Model Rule 3.5(b). This is one of the problems with model rules; they’re not universal rules. When the Model Rules conflict with local rules, they can add to confusion about what is or is not permitted in a given jurisdiction. Always rely on the local rules, first. While, in Tennessee, it might be alright to permit a juror or a potential juror to become aware that a lawyer is reviewing his Internet presence when a network setting notifies the juror of such, a lawyer in New York might be reprimanded under the same or similar circumstances.
  6. Report crimes. Generally, according to the ABA, in the course of reviewing a juror’s or potential juror’s Internet presence, if a lawyer discovers evidence of juror or potential juror misconduct that is criminal or fraudulent, the lawyer must take reasonable remedial measures including, if necessary, disclosure to the tribunal. Lawyers have a duty to report suspected or apparent criminal activity to law enforcement and to the court, when the person responsible for the activity is a (potential) juror.

The foregoing are all rules, but they are derived from one simple, if inelegantly stated, principle:

Lawyers should avoid contact on social media that could ‘spawn public doubt about the capacity of the modern jury system to achieve justice’.

At least, that’s the Tennessee Supreme Court’s guiding principle. To this author, that principle, as stated, seems more concerned with managing appearances than with promoting actual integrity in the legal profession, but as long as following the principle has the effect of promoting actual integrity in the legal profession, that distinction may be practically unimportant.

When it comes to social media and jurors, be forthright, pay close attention to the local rules, and try to avoid doing anything that a reasonable third party observer might use to accuse you of improperly influencing a potential juror or the outcome of a trial.

References

1.     Andrew Perrin, Social Media Usage: 2005-2015, Pew Research Center (October 8, 2015), http://www.pewinternet.org/2015/10/08/social-networking-usage-2005-2015/

2.     American Bar Association Standing Committee on Ethics and Professional Responsibility, Lawyer Reviewing Jurors’ Internet Presence, Formal Opinion 466 ABA (2014), http://www.americanbar.org/content/dam/aba/administrative/professional_
responsibility/formal_opinion_466_final_04_23_14.authcheckdam.pdf

3.     State of Tennessee v. William Darelle Smith, No. M2014-00059-CCA-R3-CD (TN January 7, 2015), http://www.tncourts.gov/sites/default/files/smithopn_0.pdf

4.     Ross Brandon Sluss, Appellant, v. COMMONWEALTH of Kentucky, Appellee., No. 2011–SC–000318–MR. Decided: September 20, 2012 http://caselaw.findlaw.com/ky-supreme-court/1612369.html

5.     NYC Bar Ethics Committee, Jury Research and Social Media, Formal Opinion 2012-2 NYCB (2012), http://www.nycbar.org/member-and-career-services/committees/reports-listing/reports/detail/formal-opinion-2012-2-jury-research-and-social-media

What Your Jury or Judge is Saying Without Uttering a Word

As a lawsuit winds its way through the labyrinth that is our judicial system, after the years of legal writing, taking depositions, obtaining and pouring through discovery, sitting through hearings, arguing motions and failed negotiation attempts, the fate of both Plaintiff and Defendant comes to rest with judges, jurors or arbiters. Being able to understand their body language and having the flexibility to react accordingly is of benefit to any litigator, especially when dealing with jurors, who are restricted in speech.

Jurors: Voir Dire

legalserv

Depending on jurisdiction, attorneys and judges are expected to glean enough to expose potential biases or impartiality and select twelve jurors plus alternates. The average jury voir dire lasts less than an hour, and in that time most talking is done by officers of the court rather than those we entrust with rendering a fair and impartial decision.Cases can be won or lost in jury selection, and how this process is conducted is a hotly debated topic among trial attorneys and jury consultants. Warehouses full of books, articles, and other periodicals have been written on the jury selection process, its many faults, and the benefits of the in-depth examination of prospective jurors that our system affords.  Often the only occasions for substantive dialog with members of the jury are during the voir dire process and after the conclusion of juror service.  Judges and lawyers are afforded their first and only opportunity to question potential jurors during jury selection, which they do in an effort to determine if there is a reason to exclude them from service by gauging juror personalities, relevant experiences, biases, and opinions on presumption of innocence.

To say selecting a jury is a difficult task would be an understatement. Although jury questionnaires and content of (and answers to) examination questions are extremely helpful in the selection process, identifying personality can be accomplished and corroborated through other means. Concepts gaining traction in the legal industry, such as thin slicing, facial profiling and zero acquaintance, have proven to be strong tools for selecting members of a jury. These concepts focus on making quick assumptions based on all physical aspects of a potential juror’s behavior in order to ascertain personality attributes. Factors such as attire, hygiene, posture, physical presence, facial features, expressions, gestures, the subject’s interaction with those around them, and even hairstyles and manicures are taken into consideration when developing a profile.

While new concepts to the legal world, thin slicing and zero acquaintance theory are widely studied topics in psychology. They are only now gaining traction in the legal field as the validity of such concepts are proven through accuracy of results.

Jurors: During Trial

In a previous white paper, The Applicability of Learning Theory in Litigation, I advocated for the benefits of judge/lawyer-moderated but jury submitted questioning of witnesses. Often such jury questions assist in ferreting out or clarifying information for the jury. Unfortunately not all jurisdictions allow such liberties.  Litigators in jury trials often perform the dual role of “advocate for their client” and “teacher to a passive and muted audience.” The key to effective communication in court is doing both well.

So, how does one effectively teach a passive and muted audience? An audience that is unable to give feedback, ask questions, or even let you know they understand your argument?

The good news is that, whether jury questions are allowed or not, it is still possible to glean how arguments register with members of the jury. By monitoring the body language and facial expressions of jury members for subtle cues – such as the nod or turn of the head, crossing of the legs and arms, furrowing of the brows, leaning back in their chair, or touching their forehead – one can tell if a person is confused, agrees, or is put off.

Every litigator cultivates his or her own style over time – how they approach and deliver facts and arguments to a panel of jurors. Watching juror reactions and tailoring how information is presented is extremely important.  The best way to illustrate this point is through real world examples.

A Tale of Two Cases: When Information Bites Back

We were hired by the defendants to provide trial consulting services on a personal injury case in Philadelphia at federal court. At trial, a witness deposition transcript was read into the record. This particular witness, a co-worker of the plaintiff, was not especially complimentary towards said plaintiff and had, in fact, insulted his intelligence during the deposition. Of course, defense lead counsel wanted to capitalize on this particular piece of testimony as much as possible.

After the transcript was read in, defending counsel read the insult aloud from the transcript when asking the next live witness if said witness concurred with his co-worker’s assessment of the plaintiff.  It was during this particular line of questioning that I noticed squirming in the jury box. Half of the jurors, who had up until then been listening intently with little to no cues either way, began shifting around in their seats when this question was asked. They looked uncomfortable, and the middle-aged woman in the front row momentarily flashed the look of disgust on her face. She had leaned back in her chair, crossed her arms tightly, crossed her legs away from the questioner, and a look of irritation (a raised upper lip and downturned corners of her mouth, facial contractions around the nose, and a furrowing between the eyebrows) crossed her face. I quickly and discretely nodded side to side and made a cutting gesture with my hand to my attorney who had only briefly glanced at me.

disgust
He moved on quickly to other lines of questioning and after finishing with the witness he returned to defendant’s counsel table. I feverishly scribbled a couple lines onto a legal pad and slid it over to my attorney. “Refrain from ‘dumb as a rock’ questions… jury squirmy now & lady in front middle looked offended”, it read.

For the remainder of the trial, no one on the defense team mentioned the insult, nor did they ask another question regarding the plaintiff’s intelligence or general competence. The plaintiff’s attorney, however, could not let the insult go and chose to pick up this line of questioning where defense counsel had left off. While I can only assume plaintiff counsel was hoping to garner sympathy for his client, as I expected, this line of inquiry (no matter who was actually doing the questioning) did the questioner no favors.

Result: 50-50% shared fault, $0 judgment

 

A Tale of Two Cases: When Information Bites Back

Often attorneys are focused on facts, issues, arguments, and weaving them all together in a neat story for the jury to consume, but sometimes it isn’t the facts that turn off a jury. How an attorney presents his or her case can overshadow facts and the attorney’s ability to persuade members of the jury.

We were hired by the plaintiff’s counsel to provide trial consulting services on a breach of contract matter in Philadelphia at federal court.  The material was complex but the attorneys representing the plaintiff were seasoned, top-notch litigators.  Adverse counsel, while capable, was not nearly as seasoned in front of a jury.

The problem became immediately and abundantly apparent to me upon completion of jury selection. My client, who is a well-spoken, perfectly pitched, clear communicator of ordinary height and build, had taken his seat after delivering a compelling opening statement. Defense counsel, who was of imposing stature, walked to the podium, laid several pages on its top before gripping both sides of the lectern and leaning forward in preparation to speak. It was an overtly aggressive posture.

“YOUR HONOR, MEMBERS OF THE JURY…” Opposing counsel’s voice boomed through the court audio system, taking everyone aback with the volume. The jury literally leaned back in their chairs. He wasn’t shouting at the jury, but it certainly sounded like it. After the opening arguments and the first plaintiff witness had been crossed examined by this same attorney I noticed a hysterical pattern with jury body language. I leaned over and whispered the attorney closest to me, “Watch the jury body language the next time that guy gets up to cross.”

surprise
The other plaintiff’s attorney sat down after direct examination of our second witness and the defense attorney with the high decibel voice stood up. The jurors, in response, started to show slightly panicked looks on their faces (wide-eyed, raised eyebrows and a slack jaw). Many gripped their armchairs and leaned back in their seats as if in preparation to hold on for dear life.

Half way through the proceedings, the attorney finally dumped the microphone attached to the speaker system and even apologized for his naturally thunderous voice. It had become apparent, even to him, that his presentation style was impeding on his ability to persuade the jury. Alas, even sans the audio assistance this attorney’s voice carried and he was at a loss on to how to correct the problem; so was everyone else on his team.

Result: Judgment entered in favor of Plaintiff

Obviously, no one can catch everything, especially the body language and facial expressions of multiple jury members, while also focusing on evidence, witnesses, the judge or panel, adverse counsel, and winning your case. Having an experienced and dedicated observer at trial is an asset.

 


This article is based on the KT Designs’ white paper “Body Language, Technology and their Application in the Legal Industry.”To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/

KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.

Creating Successful Demonstratives:

The Synergy of Psychology and Art in Litigation

Knowing that people learn through varying methods and that the culmi­nation of their unique experiences assists them in forming their decisions is important. One of the more effective ways to impress informa­tion upon judges and juries is through the use of demonstratives. Applying psychology and artistic principles to visually communicated information is the strongest way to create compelling demonstratives.

The Use of Art as a Communication Tool

Art can tell stories, evoke emotions, hide secrets, persuade people to act, and transcend language bar­riers. Throughout human history, beginning in the days of cavemen grounding pigments and fashion­ing paintbrushes out of a harsh environment to commemorate important events on cave walls, visual art has been a preferred medium for communication. As human societies evolved, the tech­nical execution and layering of information to reinforce the story or message through visual means became more sophisti­cated. Great masters such as Jan Van Eyck, Leonardo da Vinci and Caravaggio supplied humanity with more than just breathtaking imagery. Their works elevated the understand­ing of a story for their viewers through the use of generally recognized visual symbols. Some symbols, such as those contained in the Mona Lisa, are still being discovered and decoded to this day.

Symbolic art is in landmarks, currency, flags, and every other government insignia. Art is on the packaging of the products we use, the televi­sion shows we watch, the magazines we read, and can even tell us where the bathroom is.

The Psychology of Communication

The discipline of psychology, when used in visuals, is an effective tool in persuasive communication. The psy­chology of learning theory, art theory, and comprehension are important considerations for information designers. Using such techniques to reinforce your message can facilitate audience understanding and even evoke an emotional response.

Attributes to consider when designing informational graphics are color, eye flow and readability. Choices in fonts, spacing, and thickness of letters – also known as typography – can reduce eyestrain, increase viewer attention span, and promote comprehension of presented information. The proper setting of visual ele­ments can reinforce a message and assist the viewer’s eye in following the natural flow of information throughout a demonstrative graphic. The fonts you use, the colors you pick, even the choice of line thickness and style, can attract eye flow to information or reduce that same information’s visual impact. It is best to think of a demonstrative graphic as the whole that is greater than the sum of its parts. The effect of any element is enhanced exponentially when combined with others.

The Application of Information Design in Litigation

The intent of using visu­als is to enhance viewer understanding; they should be relevant to the information being presented. Imagery explains what words fail to impress. Information is everywhere and how it is presented viewers, especially a passive audience such as a jury, can mean the difference between reinforcing your mes­sage and confusing it.

The legal industry has come to realize the value of visual interpretation of the information at the core of their legal cases. Understanding how to effectively create clear demonstratives for judges and juries is now given serious consid­eration as early as the pleadings and motions stage. Great litigation graphics consultants execute the visual arm of your legal arguments and, in that vein, are an extension of the trial team. They are able to analyze case materials and raw information to develop accu­rate and compelling visual aids that further the comprehension of the arguments at issue. Though cases differ in their set of facts and the parties involved, there are two categories of demonstratives that effectively translate to a wide array of legal disputes.

  1. Case-Framing Demonstratives
    These infor­mational graphics give the audience an overall picture of the case and aid in recognizing patterns that would be otherwise impos­sible to discern from examining pieces of information individu­ally. These demonstratives are frames of reference and can take the form of timelines of events, diagrams that explain processes, illustra­tions that provide a generalized view of concrete objects, and graphs depicting increases and decreases.

  1. Fact-Specific Demonstratives
    Another category of demonstrative, heavily uti­lized across most practice areas, is the fact-specific demonstrative. Graphics that focus on a specific piece of evidence, such as call outs, or explains foundational facts or information, such as infor­mational tables and comparison charts, are all fact-specific demonstratives. These graphics best serve to help explain and reinforce specific facts related to your argument.

Example: The ULLICO/Global Crossing Scandal

The two images show charts with similar data sets. Both charts show the Global Crossing’s share price juxtaposed with the ULLICO’s share price. It was alleged that ULLICO officers were able to sell their shares of ULLICO stock based on the value of Global Crossing’s share price from six months ago.

sample1a  The graphic on the left was prepared for a congressional hearing on the ULLICO-Global Crossing scandal.

 

The graphic on the right was created for the ULLICO v. LeBoeuf Lamb legal malpractice case. Ullico-bg

 
While still staying true to the initial graphic admitted as evidence, the graphics consultant added two additional years to the timeline to include important events and then dramatically modified the overall look and feel to facilitate viewer comprehension. The result is the successful execution of an easy-to-understand; graphically designed demonstrative.

 

Final Thoughts

The most effective visual demonstratives are those that are able to explain complex subjects and abstract concepts while revealing patterns in data that words alone do not adequately capture.

Start by asking yourself:

Will a demonstrative here add value?


Develop and refine demonstratives to answer three additional questions:

  1. Will this demonstrative visually and mentally connect with the decision-maker?
  2. Does this demonstrative efficaciously illustrate the narrative of this case or a specific argument at issue?
  3. Does the overall design of my demonstrative effectively explain information presented and reinforce the message being portrayed?

Working through these questions to develop demonstratives will promote the creation of less ambig­uous and more persuasive visuals.


This article is based on the KT Designs’ white paper “The Anatomy of Successful Demonstratives.” To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/

KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.

The Law of Inevitability:
The Panama Papers

In April of 2016, the legal industry was rocked by a monumental computer breach. Unlike the Sony, HomeDepot, and Target hacks before it, which only affected one company, this breach exposed every one of Mossack Fonseca’s clients to intense public scrutiny. Their clientele – former and current politicians, athletes, banks, and business executives – were linked to fraud, sanctions avoidance, money laundering, and tax evasion schemes when 11.5 million documents were exfiltrated from the law firm’s servers.

Ramifications were immediate and obvious, beginning with the resignation of Iceland’s Prime Minister Sigmundur Gunnlaugsson, yet the end to this fallout remains illusive. The flood of government investigations is ongoing and new allegations emerge regularly; so far one of the few certainties regarding the hack is that law firms are now keenly aware that their computer systems house a treasure trove of confidential information – an attractive target for hackers. Also clear is that the penetration of Mossack Fonseca’s computer systems was a relatively easy breach to perpetrate and, more importantly, completely preventable.

It’s time to have a candid conversation about law firms and their computer security footprint.

How To Hack Mossack Fonseca In 3 Easy Steps

Mossack Fonseca was utterly deficient in their cyber security footprint. Their website was riddled with known and fixable vulnerabilities. Their web server was also not protected by a firewall and was on the same network as their mail servers. In April 2016, researchers found multiple avenues for access but one prevalent theory has emerged: outdated and unpatched software and knowingly insecure server access protocols gave hackers easy access to the firm’s most sensitive files.

At the risk of getting too deep in the weeds I will attempt to explain one such avenue for unauthorized access to the Mossack Fonseca systems. The graphic provided below will help you visualize how a hacker can move through the system to gain the type of access that results in the theft of 2.6 terabytes of attorney-client privileged data.

PanamaPapers

Step 1: WordPress Exploit

Mossack Fonseca had a commonly used plug-in on their website named Revolution Slider. That version of Revolution Slider was outdated and known to be vulnerable to exploitation. By using this exploit, a hacker is able to gain unauthorized and unrestricted access to WordPress, including the configuration and database files. These unencrypted files contain login and password information to send emails from the mail server.

Step 2: Use Information Gained From WordPress

Using the login credentials provided by WordPress, the hacker could have then accessed the email server and siphoned off 4.8 Million emails. Mossack Fonseca was using an old version of Outlook Web Access they last updated in 2009. Assuming the privilege level assigned to the credentials used to log in is all-access, any email could be retrieved from the system.

Step 3: Drupal Exploits

Like WordPress, Drupal can be used to create websites and act in the background as an online client access portal to their data. The older version of Drupal that Mossack Fonseca utilized had at least 23 vulnerabilities at the time of the hack and was best known for the version targeted in November 2014’s “Drupageddon” hack.

5 Easy Ways To Avoid Being The Next Mossack Fonseca

I’d like to believe that Mossack Fonseca is the most disturbing case of ineptitude in website security on the planet rather than a typical case study. Unfortunately, I fear there are more Mossack Fonseca’s out there than we realize or want to admit publicly in an effort to protect those easily penetrable data goldmines. There are some very easy steps to take that can mitigate your exposure risk:

  1. Update Software

Patches are released for a reason and that reason is never cosmetic. They shore up security holes or functionality issues. That innocuous plug-in on your website looks great or may add functionality but if you don’t keep it current you are exposing yourself, your firm, and the clients it services to unnecessary risk.

  1. Encryption and Hashing

There is no reason to forego encryption of confidential communications and files. None of the data from Mossack Fonseca had encryption of any kind. Microsoft and Adobe products include encryption and password protection tools to avoid unauthorized access. Most email providers use some level of encryption and should be included in any service level agreement.

  1. Separation, Passwords And Access Restrictions

Passwords should be changed regularly and access to files, information, and systems should be limited to only those who need it. Restrictions on time and day can also be implemented. Update these access privilege credentials regularly to ensure access is only as needed. Also, consider keeping email servers and web servers on separate traffic routers to add an element of separation.

  1. Protocols And Procedures

Mossack Fonseca was ill-prepared to manage the fallout of their breach, either for themselves or their clients. Having protocols and procedures in place before a breach happens is far better than making it up as you go in a high-stress situation.

  1. Training And Refresher Trainings

Computer security best practices, particularly in fields requiring confidentiality and discretion like the legal industry, should be part of the new hire training curriculum and regularly given refresher trainings.

While these five best practices will not prevent all computer breaches, they could have prevented the Panama Papers or, at a minimum, made the hacker’s job infinitely harder. If you are interested in speaking with a security professional on how to shore up your cyber security footprint, KT Designs can put you in contact with one of our experts. Please contact us at 202.554.0272 or info@kt-designs.org.

 


The information in this article is sourced from the following organizations:

https://panamapapers.icij.org

https://www.wordfence.com/blog/2016/04/panama-papers-wordpress-email-connection/

http://www.wired.co.uk/article/panama-papers-mossack-fonseca-website-security-problems

KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.

Personal Security in the Digital Age:
Navigating Machiavelli’s Playground

Technology is ever growing and evolving, bringing new and exciting advances into the modern world. Computers make our lives easier in innumerable daily activities, be it instantly paying bills online, buying the latest best seller on Amazon, looking up the closest movie theatre on the car’s GPS or searching for a dinner recipe on the refrigerator’s built-in touch screen. Of course, with these daily aides comes the ever-growing risk of our technology being used against us.

Media attention has shifted to the dangers of Internet connected devices as of late, giving the public its first clear look at what the world of cyber security handles. Nearly every week, a new announcement surfaces regarding banks or big-box retailers being targeted, personal information compromised or intimate photos leaked. With each new successful attack the need for stronger security becomes ever more evident. Most of this security is focused on the larger companies – Target needs to bolster its card security, Apple needs to take more precautions with its Cloud technology – but there are things that individuals can and must do to play their part as well.

Keeping your family and yourself safe in this ever-changing environment is no small feat. However, there are a number of steps you can take to shore up your personal cyber-security. Though you may not be able to prevent every attack, you can lower your risk, stop many and be prepared for the ones that do get through.

What can one person do? The good news is cyber-security starts with the individual.

As with any confrontation, it is imperative to know what you are up against. How much of your household technology is hackable? Which can be used against you if they become compromised? Any Internet-connected device is at risk of being infiltrated, from your baby monitor to your favorite gaming console. This doesn’t mean that you can’t use them, though – there are some simple things you can do to maintain your privacy.

Tips for Safeguarding Your Computer

Even the most basic security setups require that you keep your computer up to date. Updates are not only issued to better user end software but to patch discovered security flaws. Ignoring updates is a swift way to weaken many other security options.

Use proper password etiquette! Passwords should be a minimum of eight characters. Use upper and lower case letters, numbers and symbols, but avoid grouping the different types of characters together (for instance, Password123). Do not use the same password for multiple accounts, do not share your passwords with anyone and, if you have too many passwords to remember, store a handwritten copy in a safe access-controlled place. Avoid using the password save function your computer offers.

 

In addition, virus protection software allows you to react swiftly if something malicious does make its way onto your system. There are many to choose from, ranging from run-in-the-background to system wide control, so it’s important to do your research to determine the best choice for you.

Using Common Sense

Using common sense goes a long way in the digital world. You can avoid a lot of trouble by ignoring suspicious emails and avoiding untrusted sites. Some of the easiest ways to become the victim of a scam or virus is by clicking on random links, visiting suspicious websites, opening strange email attachments and falling for phishing scams.

Keep in mind that everything you put on social media is available to everyone, and likely to be accessible in some way even if you delete it. Knowing the difference between what should and should not be private is crucial; aside from not posting sensitive information, it’s not necessary to let everyone know where you are and what you are doing. Photos of you drinking with friends are more likely to cause future trouble than a day at the park with your dog.

The same goes for information you place in the Cloud. Regardless of what Cloud service you use, your data could be at risk. When it comes to important documents that you may want to have access to, such as birth and marriage certificates, social security cards and insurance documents, keep them physically or on an encrypted CD or device that is not accessible by the Internet. Though the Cloud is convenient, it is far from impenetrable; use it for photos you don’t mind others seeing, audiobook and music files, a clean back-up of your operating system and non-sensitive application files only.

Be aware of how many cameras you have in your home and with you on the go. With the average number of devices in each home these days, it isn’t strictly necessary for someone wishing to spy on you to bug anything – in many cases you do it for them. Miss Teen USA Cassidy Wolf found out the hard way exactly how such devices could be used against her when a perpetrator hijacked her computer, turned on her webcam and took images of her undressing in real-time without her knowledge. Obviously, be mindful of what is within view of capture-enabled devices.

Security-minded Online Banking

Banking is extremely easy in the modern age, and though banks have a number of security measures in place by default, it’s your job to put them to good use and implement a few of your own. As with any site, make sure your password follows the tips set out above. Legitimate employees of any company already have access to your account, so if anyone asks for your log in information, or directs you to do anything abnormal, it is likely a scam.

There are optional security measures your bank can put in place, such as security tokens. You can ask your bank about setting up a virtual fob, which generates an instant random code, to access your account. If hackers are able to access one of your accounts within a financial institution, they may be able to draw money from all of your accounts at that institution if these accounts are linked – as, for instance, through overdraft protection. For this reason, consider opening an unconnected account at a different bank in case of emergency.

What else can I do?

You don’t need to be an information security professional to understand the basics of your own security needs. Information is available and universities offer classes on the subject to the public online. Though many common sense choices can keep your information and privacy safe, the best way to protect sensitive information is by understanding its value.

Proper security starts at the individual level but does not end there. While it is true that companies and the government are late to the game, public awareness is finally leading to a significant and well-founded outcry. Some companies have started to answer this call. As this outcry increases with each cyber attack that makes headlines, the additional social pressure for privacy and security will require reexamination and action.


This article is based on the KT Designs’ white paper, “Privacy, Security and Mitigating Risk in the Digital Age: A ‘How To Guide’ for Navigating Machiavelli’s Playground for the individual.To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/

KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.

Protecting Compromised Information

In the wake of the most recent disclosures of large-scale successful computer breaches of US government systems, we thought it prudent to include some information on what do to if you discover your identity or digital footprint has been compromised. Know exactly what needs to be protected and have a plan in place before something happens. This extends to information as well as physical assets.

General steps to take in the wake of a systems breach:

Detect, Isolate and Remediate

  • Isolate the affected system immediately to mitigate potential damage. Once contained, act to remediate the compromised systems.

Assessment

  • Assess other systems to ensure that containment was successful and no other areas were compromised by the breach.

Mitigation

  • Mitigate the consequences of said breach as quickly as possible. For an individual, this would include contacting your financial institutions and credit lending agencies. For companies, this could include enacting business continuity and disaster recovery protocols and procedures.

If you have ever applied for a security clearance from (or required a background check by) the US government, the following is some basic guidance for assisting you in mitigating your risks:

  • Put a block on your credit reports to prevent anyone from opening new accounts unless you are contacted first: http://www.consumer.ftc.gov/articles/0497-credit-freeze-faqs
  • DO NOTrespond to e-mails or phone calls from anyone saying that they are from DHS, OPM, or DoD and are offering to help. Expect fraudulent phone calls.
  • Change all of your security questions on ALL of your bank and credit account information, make sure the security questions and answers are not provided by you in your security clearance information.
  • Close all accounts you are not using.
  • Request from your banks and credit card companies that they send you new cards with chip and pin.
  • Use the Freedom of information Act (FOIA) to request the information obtained by US DoD for the purpose of granting your clearance.
  • Await the OPM letter that will send you a pin number so you can log in and register for free credit monitoring and up to $1 million in coverage in case your identity is compromised and potentially affects your credit.

Remember, this information provided is only basic, though considerable time and effort on your part is required for one or more of these steps should you wish to pursue these risk mitigation efforts in protecting your compromised information.

If you are concerned that you have been compromised and wish to take further steps by getting in touch with a security professional, KT Designs can put you in contact with one of our experts. Please contact us at 202.554.0272 or info@kt-designs.org.

*Information provided by Kristin Thomas and Kalani Enos.

The Use of Learning Theory in Litigation

“If one of our goals in jury trials is to send into a jury room a jury well equipped to render a fair and impartial verdict, then in my view, we are shortchanging all litigants if we are not providing our jurors with all the necessary aids and tools to enable them to perform the critical tasks we ask them to undertake.”

— Hon. Michael F. McKeon, Jury Trial Project in New York


The key to being successful in litigation is clear, concise, effective and persuasive communication. In effect, a lawyer is an educator – disseminating facts and evidence about a case to fact-finders. How those facts and evidence are presented to a jury, judge or panel can mean the difference between comprehension of said information and confusion, boredom and apathy. Properly educating the fact-finder on complex information without overwhelming them while effectively rebutting adverse counsel’s points are the litigators’ main objectives. During demonstrative development and argument preparation, it is important to understand how to distill and accurately represent case facts in a persuasive manner for maximum comprehension.

Bold research in the fields of neuroscience and brain imaging at the University of Birmingham, UK, has provided interesting new data that is applicable to the field of learning. Dr. Doe Kourtzi, Chair of Brain Imaging at UAB, explains, “What we have found is that learning from past experience actually rewires our brains so that we can categorize the things we are looking at, and respond appropriately to them in any context.” People learn, process, retain and recall information differently. The majority of learning theory experts agree that whether you are teaching a class of high school students or arguing your case in front of a jury, utilizing more than one teaching method increases the fact-finders’ level of comprehension.

US educationist Edgar Dale pioneered the “Cone of Experience” theory, holding that using various types of learning strategies increases comprehension and retention. Dale’s hypothesis incorporates different types of teaching methods, including utilizing symbolism, audio, imagery, video and direct participation. For litigators, Dale’s theory has practical applications in the courtroom. Over the past two decades, the method by which evidence is presented has changed. Law firms have taken a measured approach to embracing the use of technology in every stage of the litigation life cycle. Litigation graphics are now commonplace in courtrooms and are being included as early as the motions and pleadings phases, as opposed to limited graphics like the obligatory graph or chart during trial. This technology facilitates the litigator’s ability to persuasively present their evidence verbally while reinforcing their message with supplemental visual and auditory evidence.

Until deliberation, juries have a passive role in court proceedings, impartially considering the evidence presented and rendering a verdict based upon that evidence and the rule of law. Within the past few decades, courts have experimented with various changes to procedure; this has led to controversy because some procedures encourage jurors to take a more active role during the evidentiary presentation of trial or have the potential to distract jurors from listening to the evidence being presented. Two controversial procedures, allowing jurors to take notes and juror questions, are being tested at a measured pace in various jurisdictions across the country.

For many, taking notes assists in processing and retaining the information being presented and then facilitates the recall of that information. Allowing juries to take notes during the course of a trial has only developed over the past few decades. As this experimental procedure is implemented across the country, extensive studies continue to be conducted and relevant data collected. One study found that of jurors who were not permitted to take notes, 76% of jurors on civil trials and 50% of jurors on criminal cases communicated that they would prefer the opportunity to take notes in future trials.

Another procedure being experimented with in courts is juror questions. According to the findings of the Arizona Filming Project, over 28% of juror questions gravitated towards clarifying factual information and over 61% of juror questions were evaluating questions focused on discrepancies in testimony or disputed facts being presented.

 

How people best understand, internalize, and then retain information for later recollection varies. By utilizing multiple teaching methods in the courtroom, explaining evidence, assisting in processing information and facilitating memory retention and recall, courts assure that jurors are better prepared to carry out the duties with which they are charged.


This article is based on the KT Designs’ white paper “The Applicability of Learning Theory in Litigation.” To access the whitepaper in its entirety for free, please visit the whitepaper section of our website: http://www.kt-designs.org/white-papers/

KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are experienced in working on cases and projects of all sizes and in most jurisdictions, including internationally. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.

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info@kt-designs.org

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KT Designs is a privately owned company that operates on the ideals of honesty, integrity and transparency. We are devoted to the personal and intellectual growth of our employees and clients, and to facilitating continued learning in our audiences on the most complicated of topics. We consider our clients’ satisfaction and confidentiality above all else.