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Wal-Mart successfully defended against powerful emotional appeal with technology and Sanction: May-Carmen v. Wal-Mart bicycle trial – Marin County, CA
Article By Colleen O'Donnell www.sanction.com
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Up against a case rife with emotional appeal and just one night to prepare for trial, consultant Ted Brooks, founder of Litigation Tech LLC, accepted the assignment from a new client to prepare and operate courtroom technology for Wal-Mart’s defense team in a nine-plaintiff product liability suit.

Brooks spent his one pre-trial evening loading digitized evidence into Sanction, including about 20 video depositions, as well as several audio tapes, and hundreds of photos and documents. He also made extensive use of Sanction’s Presentation Folders to help organize the data for each witness.

Plaintiffs’ counsel, in contrast, did not use any technology at all in trial. “If you’re going to swordfight, don’t bring a pocket-knife,” observes Brooks of the opposing team. “We were able to effectively present our case, while the plaintiff searched.”

The plaintiffs used dozens of mounted photos of children averaging between 8 and 12 years old, whose faces were roughed up in bicycle accidents, which they alleged were caused by defective bikes sold by Wal-Mart.

Nine sets of parents had filed suit against Wal-Mart, bike importer Dynacraft and its claims processor. The parents publicized their case with the graphic website: Wal-Mart Stop Hurting Our Kids (SHOK). Their attorney, Mark Webb claimed the accidents were caused by defective quick-release devices, which are intended to secure front wheels to the bike but allow riders to easily remove them for transport. He asked the Marin County jury for $8 million in general damages for the nine families from California and other states, plus punitive damages for the defendants' alleged malice.

"Every child in this case went over the handlebars, landed on his face, and suffered severe injuries," Webb told the 12-member jury. "How do you put a price on quality of life? How do you put a price on a childhood that's been lost?"

Wal-Mart had hired a high-profile law team of four attorneys, including seasoned Joe B. Harrison of Gardere Wynne Sewell in Dallas, who retained Brooks during the eight-week trial.

The defense put forth that each of the bikes had been tampered with, neglected or improperly handled. Key to the defense were deposition videos and audio tapes. During trial preparation, Brooks created video clips from 20 depositions, as well as audio clips from insurance adjuster audio tapes. Some of the clips were played as absentee witnesses.

“In every instance, our side showed there was negligence involved with the bikes, and either kids or parents not taking measures to ensure the bikes were in working order,”explains Brooks. “We had audio tape of plaintiffs’ interviews with the insurer and we played them to the jury. All audio tapes were digitized and played through Sanction. I used Sanction in dual-screen mode, allowing me to have full access to the database while documents and video were shown to the jury.”

Audio evidence included statements from the injured children such as, “My friend loosened my wheel and said ‘drive home.’” The child did that, then had an accident the next day on the bike.

“Opposing counsel counter-designated what they wanted to play – so, there were many times I had to create clips in the courtroom, just minutes before they were to be displayed in trial. Sanction's Clip Creator made this task very quick and simple,” adds Brooks. “Another valuable feature used was converting the clips to individual files, which could be burned to a CD and submitted to the Court for the record. This was done for each absentee witness.”

Harrison said in his closing argument that there was no scientific proof that Dynacraft quick-release levers are defective. He pointed out that the defendants had attached warning tags to the bikes and sold them with instruction manuals, including directions on how to safely operate the quick-release levers. Harrison criticized the plaintiffs' key expert, metallurgist Robert Neil Anderson, who testified that the Dynacraft bikes Wal-Mart sold were like "ticking time bombs."

He said that Anderson failed to conduct sufficient tests on the bikes to prove a defect and did not study how the accident rates of Dynacraft's bikes compared to others. Harrison also said that the plaintiff's expert did not test the clamping force of Dynacraft's quick-release or conduct tests to confirm his theory that the bikes' soft-suspension system had more vibrational stress than other bikes. He also criticized the plaintiffs for not presenting an accident-reconstruction expert to explain the cause of these accidents.

He concluded that Dynacraft's own expert witness, Gerald Bredding, did extensive tests to prove that the bikes were safe. “We digitized a videotape showing the front suspension on a smooth roller, and then on a roller with bumps welded on which shook the wheels violently, and showed this test to the jury,” says Brooks. “We also showed a test with heavy weights hanging from the wheels. They never came off. Another series of test data was shown to the jury, proving that the clamping force of the Quick Releases was as strong as, and in some cases, even stronger than high-end QR's.”

"Which is better, guesswork or science?" Harrison said to the jury. "Theories are a dime a dozen. Where's the proof? Where's the data?"

A key moment in the trial came as defense attorney Rob Phillips was giving his closing argument, and the last thing the jury saw were the words: "Where's the proof?", zoomed in from a graphic, filling seven feet of projection screen in the courtroom, relates Brooks. “As he spoke to the jury, he turned to look at the screen, then realized I had zoomed in on that section, and just smiled. It was very powerful.”

Without technology, plaintiffs relied on the emotional appeal of injured children and dramatic displays such as shaking the bike. “Plaintiffs shook a bike in trial to show that the wheel falls off – but the plaintiffs had removed the brakes for dramatic effect,” explains Brooks. “We shook the bike with the wheel properly tightened and it stayed on.”

Brooks is well-known in the litigation technology community for his work with another trial presentation product, but he really liked Sanction. “Clip Creator is very easy to use and helpful. I used it a lot,” he says. “I also liked the ability to pre-select where to place a given document or photo.”

“I’m not a fan of making trial presentations like a PowerPoint. That’s the advantage of trial presentation software like Sanction. You never know what’s going to happen in trial, and with trial software, you can respond to that. Otherwise you’re stuck in a linear format.” Brooks was moderately familiar with Sanction and had used it before in the past. “Because Sanction is rather well-designed, I was able to drop in and use it easily,” he says.

The jury found against the parents and their attorney. None of the parents won any damages although one set of parents reached a confidential settlement with Wal-Mart and Dynacraft. The decision was 11 to 1 and a retrial is pending.

“Our counsel was extremely happy and pleased with the performance of Sanction in trial. It led to more business for me,” Brooks adds happily. “A couple very highly-regarded attorneys on the team had never before used technology in trial. Thanks to Sanction, I’d be surprised if they ever try another major case without it. Opposing counsel was also impressed by Sanction.”

This article is reprinted with permission from the Tech Edge Insider Vol 2, Issue 7 Verdict Systems, LLC. © 2006

Ted Brooks is president of San Francisco-based Litigation-Tech.
E-mail: tbrooks@litigationtech.com



Tech Edge Insider Vol 2, Issue 7

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Not Beyond a Reasonable Doubt, By John Bringardner - Article for: Law Technology News (Technology on Trial) www.lawtechnologynews.com
Did TV - CSI and 20/20 - affect jury expectations?
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The four-month trial of Robert Blake, accused of murdering his wife Bonny Lee Bakley, was a Hollywood scandal with a surprise ending. To the disbelief of armchair jurors around the country, the troubled star of In Cold Blood and Baretta was acquitted on March 17, 2005.

Speculation surrounding the jury's decision is split among several theories. Was it a result of the so-called "CSI Effect," named after the popular television show in which forensic investigators never fail to discover an irrefutable piece of evidence in their murder cases? Los Angeles County district attorney Steve Cooley didn't think so. He just dismissed the jury as "incredibly stupid." Deputy district attorney Shellie

Samuels made a case based on circumstantial evidence in People of the State of California v. Robert Blake (2002CR04037-7LA), heard by Judge Darlene Schempp. But Blake's defense team cast just enough doubt in jurors' minds to set the 71-yearold actor free.

Bakley's murder took place on May 4, 2001, a block and a half from Vitello's Italian Restaurant in Studio City, Calif. Blake had a tough time getting his case off the ground. Three successive attorneys quit between the date of the murder and the beginning of his trial.

Mill Valley, Calif. Defense attorney M. Gerald "Gerry" Schwartzbach came aboard in June 2004 and quickly recognized he would need technical assistance. Schwartzbach said he had never used courtroom technology in the past, and needed to put the difficult case, with thousands of documents from police and private investigations, together in a hurry. Lois Heaney, of the National Jury Project in Oakland, recommended Ted Brooks, of San Francisco-based consulting firm Litigation-Tech. Brooks, co-winner of the 2004 LTN Award for trial technology, was hired. (See LTN March 2004)

PREPARATION
Brooks began by sending Reggie Pool, his expert in Summation software, to Los Angeles to examine the two Summation databases (from Summation Legal Technologies Inc.) created by Blake's previous attorneys. They hadn't even used one of the databases, which was full of photos from the investigation, Brooks said.

Pool created a TrialDirector (from inData Corp.) database including both Summation databases composed of documents and photos from police investigations. This gave the defense team instant access to everything throughout the course of the trial.

"One of the things I took on was those photos, not knowing what I might find," says Brooks. This came in handy when detective Steve Eguchi was on the stand discussing the Dumpster in which the murder weapon was found. The defense projected a photo of a Dumpster onto an eight-foot screen and Schwartzbach asked the detective if that was the one he had searched to find the gun. When he said no, Brooks quickly zoomed in to show a close-up of Eguchi climbing into the Dumpster, striking a blow to his credibility.

OPENING STATEMENTS
The case began with a 90-minute opening statement by prosecutor Samuels, who argued that Blake had solicited two ex-stuntmen to kill his wife, but eventually took the job into his own hands. She relied on Microsoft Corp.'s PowerPoint for the first time in her career, says DA paralegal Sudi Sahab, who created the slides. During the trial Samuels also used hardcopy documents and photos displayed on a Visual Presenter from ELMO.

Schwartzbach's opening statement took nearly five hours, and he relied heavily on TrialDirector and PowerPoint. (Also used for the closing.)

"I'm a believer of technology as an aid to a lawyer," Schwartzbach says. But, he cautioned, Technology doesn't try the case. I had to make contact with the jurors, so I didn't want them looking constantly at the screen."

His ambivalence was apparent to Brooks. "At first [Schwartzbach] was uncomfortable with the process of rehearsing," Brooks recalls. There were several tries at getting a smooth opening, which included many visuals that also became exhibits, he said.

TRIAL TACTICS
Sahab cited the defense team's use of TrialDirector's zoom function as a particularly effective tool. Brooks could highlight portions of the police department's policy manual, emphasizing breaches of code during the investigation.

A pivot point of the trial, says Brooks, was when both teams offered Barbara Walters' 20/20 television interview with Blake, one of several TV interviews where Blake proclaimed his innocence. It was allowed into evidence, even though Blake did not testify.

The prosecution used the footage to argue that it impeached statements Blake had made to people who had visited him in jail, Schwartzbach says.

The defense team took the video footage and treated it like a video deposition, digitizing it with a transcript provided by ABC. It was played three different times in court, during opening and closing statements, and in the middle of the trial. "[Blake] was essentially able to testify by responding to Barbara's questions," says Brooks.

Ultimately, the prosecution couldn't put the gun in Blake's hands, jury foreman Thomas Nicholson told reporters.

Blake was acquitted of charges of murdering Bakley, conspiracy to commit murder and solicitation. The defense team used technology to showcase the faults in the investigation, the long paper trail damaging Bakley's character, and Barbara Walters. A lack of forensic evidence, and doubt sown by the defense, made Blake a free man again.

This article is reprinted with permission from the May 2005 edition of the LAW TECHNOLOGY NEWS. © 2005 ALM Properties, Inc. All rights reserved. Further duplication without permission is prohibited. For information contact, American Lawyer Media, Reprint Department at 800-888- 8300 x6111. #010-05-05-0001

Ted Brooks is president of San Francisco-based Litigation-Tech.
E-mail: tbrooks@litigationtech.com



Law Technology News May 2005

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Money Matters, By Ted Brooks - Article for: Law Office Computing Feb/Mar 2005: Consultant's Challenge
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Trial Technology Reaps Big Rewards For A Small Firm

The Consultant:
Ted Brooks, president of Litigation-Tech

The Firm:
Abramson Smith Waldsmith in San Francisco is a four-attorney firm specializing in catastrophic personal injury and wrongful death cases.

The Challenge:
Using trial technology in the matter of Shropshire v. City of Walnut Creek effectively, without having to completely overhaul the attorneys' method fo preparing for trial.

Winning awards is a very important part of Plaintiff's litigation - jury awards that is. When Bill Smith and R.J. Waldsmith of Abramson Smith Waldsmith were hired to represent the plaintiff in Shropshire v. City of Walnut Creek, they knew they needed to take a new approach to trial.

The attorneys had no previous experience trying a case using the latest technology, but they realized the complex trial before them could benefit greatly by using visual communication techniques and technology. The attorneys turned to Litigation-Tech, my litigation technology consultancy firm. Having several successful trial experiences with "technologically challenged" litigators on both sides of the bar, I eagerly took on the challenge to bring this "paper and poster board" firm into the new century.

Smith was a seasoned and very successful lawyer, while Waldsmith was younger - and was initially the driving force behind the decision, having had some exposure to technology in school. Once they see a well-prepared, technologically enhanced show, they quickly are converted to trial technology use. This is not to belittle the importance of attorneys presentations, but rather to make it clear that litigators who have never seen a transcript linked to video played in impeachment format simply are amazed by its effectiveness. I have observed great positive reaction when attorneys see how this technology can be used in their cases.

In the matter of Shropshire v. City of Walnut Creek, Smith and Waldsmith were convinced technology would allow them to try their case in an efficient, effective manner, while at the same time permitting them to prepare for trial in much the same fashion as they had in the past.

PREPARATION
From a trial consultant's point of view, there are a number of ways to handle all of the various parts of trial preparation. Technology typically used in a trial includes document scanning, deposition video digitizing and synching to the ASCII transcripts, demonstrative graphics development, courtroom and war room equipment setup, trial database development, review and rehearsal, and of course, presenting the evidence during the trial.

As the Shropshire case was a much smaller matter (in database terms), I decided to handle all of the production in-house, with the exception of the graphics, which San Francisco-based LegalVision handled. In larger matters, we often subcontract the high-volume work (such as document imaging), as it is always in our best interest to keep everything as cost-effective as possible.

TOOLS FOR THE JOB
My choice for trial presentation database software is TrialDirector, by inData Corp. (www.indatacorp.com). There are other products that work well, such as Verdict Systems Summation (www.summation.com), but my personal preference is for TrialDirector based on years of experience with the software and the company. Product competition is good for any consumer. This is what keeps the features getting better and the pricing very competitive, at $595 per two-seat license.

In this matter, the attorneys wanted to be able to access and review my work product, as well as their own materials, so we installed the suite on both of their laptops. I trained them in TrialDirector basics, which they both picked up quickly.

GOING TO TRIAL

Court Presentation Checklist

  • Two laptop or PC computers
  • One 3,000-plus lumens projector (with a spare lamp)
  • Four 15-inch, flat-panel monitors (on each for the judge, witness and counsel)
  • One 7- to 8-foot screen
  • One Elmo document camera
  • An amplified speaker set
  • A master switch amplifier to switch between parties, the Elmo, etc.
  • A mini-switcher to switch between laptops or PCs
  • Cables and tables
    Gaffer's tape (not Duct tape)
  • A laser pointer, easel and paper with markers
  • A portable printer and scanner
  • Permission from the court to install all of your presentation technology

A trial consultant's level of participation in a case varies according to the attorneys' needs. In some cases, a trial consultant might perform a limited set of duties, determined by counsel. In others, the trial consultant is looked to for continuous guidance based on the realization that going to trial is all the consultant does.

My involvement in this particular case was at the upper end of the scale. I consulted with the attorneys regarding visual communication and jury observation, and assisted in preparation for opening statements, witness examinations and closing arguments. I helped with pretrial preparation, support in court during the trial, war room support and post trail wrap-up. I also assisted with expert witness preparation by getting the visual portions of their testimony organized. In court, I operated the database and displayed the evidence. I also acted as a "shadow juror" providing jury observations on the proceedings.

We used most of the bells and whistles found in TrialDirector during this trial. All of the documents, photographs, demonstrative graphics, animations, X-rays, and CT scans were digitized and included in the database. In addition, we digitized deposition videos and synchronized page and line designations to create "clips" of testimony, which the attorneys used for a very powerful impeachment presentation.

Other than a couple of small exemplar exhibits, TrialDirector was used to present the entire body of evidence for the plaintiff. Using trial presentation software, the attorneys easily could zoom in on a particular paragraph and highlight key language, allowing the jury to follow the message - basically keeping all eyes on the same page.

As a small firm, Abramson Smith Waldsmith had no in-house technical support, so I provided that during the trial. Technical support duties included networking, setting up the review and rehearsal system (which included the projector, screen and speaker set), bringing in and setting up a small laser printer, assisting with e-mail functions and myriad other tasks.

WAR ROOM CUISINE

War Room Checklist

  • A high-speed copier
  • A printer, fax machine and scanner, or an all-in-one machine (avoid inkjet)
  • A high-speed network (wireless or local area network)
  • A 1,500 to 2,000 lumens projector
  • A portable screen (or a blank wall)
  • A small speaker set
  • Cables and tables
  • Gaffer's tape
  • Office supplies
  • An all-night copy shop
  • An all-night coffee shop

Since Smith lived within an easy commute of the court, he chose to use his home as the war room. This presented some challenges, including the fact he only had dial-up Internet access. I had long-since forgotten how incredibly slow a file can download via the old telephone line - not to mention that we often had to keep it clear for telephone calls from expert witnesses and the like.

I set up a small Hewlett-Packard laser printer, used their projector for review and rehearsal (it was too weak for courtroom use), and brought a small portable scanner (Strobe XP by Visioneer). We managed to survive the long evenings (due in part to chocolate and caffeine). I often printed out groups of color exhibits on a Lexmark high-speed color laser printer back in my home office that evening, or at Kinko's the next morning. As a trial consultant, you must have a wide variety of equipment at your disposal at all times during a trial - and you must know how to use all of it.

We did enjoy some of the finer things technology has to offer during this trial, including wireless internet access in court (supplied by Courtroom Connect), plasma monitors for the jury (in addition to a large screen and 3000 lumen projector), a battery-powered HP 450 inkjet for in-court use, and that tiny universal serial bus-powered Strobe scanner.

TECHNOLOGY WINS
To reflect and evaluate the outcome of this matter is a great pleasure for me. Here we had two "paper and poster board" lawyers, converted to state-of-the-art trial presentation technology. Now they can't live without it. Even the judge and jurors commented how effectively we were at communicating our message - resulting in our getting over 100 exhibits quickly into evidence, as the defense struggled to bring in a little more than 20. When looking at the weight of the evidence it's easy to see that technology in trial can indeed help tip the scales.

At the beginning of this article, I mentioned that for a plaintiff's firm, it's all about winning awards. Well, in their first outing using trial technology, Smith and Waldsmith won their client a newsworthy $27.5 million verdict - far more than they had expected. Not to mention, they (and I) also won the Law Technology News Award for Most Innovative Use of Technology During a Trial. This was largely due to the fact that we did quite a bit on-the-fly, including create an exhibit in front of the jury, at the direction of the main defense witness.

Smith and Waldsmith are careful to acknowledge technology has enabled them to try cases much more effectively and efficiently. I, on the other hand, am careful to acknowledge their professionalism, open-mindedness, and true desire to win, which is why we joined together in this battle in the first place.

Law Office Computing: February/March 2005
www.lawofficecomputing.com

Ted Brooks is the president of Litigation-Tech (www.litigationtech.com) and a frequent speaker and author. He is a contributor to TechnoLawyer, ABA, LawTech and litigation support groups. Brooks has paresented, trained and assisted in multiple forums. He aslo is a member of the American Society of Trail Consultants and is a certified inData TrialDirector trainer.
E-mail: tbrooks@litigationtech.com

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Utilizing Available Resources: Reaching Jurors with Courtroom Technology, By Ted Brooks - Article for: www.dri.org
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Rare is a Litigation attorney these days who has never seen technology used for evidence presentation during a trial. Once thought of as presenting a risk of appearing as a deep-pocket party in a high-stakes case, with media exposure by Court TV and news shows such as 60 Minutes or 20/20, jurors have now become adequately desensitized to electronic trial presentations to the point they have even come to expect it. While the argument of not wanting to appear "too flashy" may have held some water in the past, it has long-since dried up.

In fact, according to post-trial jury surveys, the opposite is true-the jury appreciates the fact that counsel has attempted to speed the pace of the trial and increase the level of comprehension at the same time. Additionally, although they are certainly aware there is a cost involved, their perception is that it is only a tiny fraction of the cost of litigation.
If that's not enough, even the courts are encouraging efficient methods of trial presentation. Although most courtrooms are not yet "wired" with a permanent presentation system, the fact that they are spending money on even a small percentage of facilities should make a strong statement.

JUROR STATISTICS
It is estimated that approximately one-third of our national jury pool is part of generations
X (born 1965-1980) and Y (born after 1980). The remainder is made up of approximately 40 percent baby boomers (born 1946-1964), leaving only about one-fourth in the group least likely to have a high degree of familiarity and exposure to computers, multimedia, and the like.
Observations have been made in numerous post-trial jury surveys, including the fact that when opposing counsel has not used technology, appreciation is expressed to the party who has made an effort to speed up the process, thus helping to shorten the jury service time. Additionally, although using technology does not necessarily directly influence the verdict, one can safely assume that if jurors understand one side of the story more clearly than the other, it will carry into deliberations. Further, the sheer number of exhibits admitted can outpace traditional methods by as much as 10 times. When the jury is asked to consider the weight of the evidence, a hundred or more admitted exhibits can help tip a scale much more than 10 or 20 hard copies admitted by opposing counsel.

PLAINTIFF FIRMS
More and more, plaintiff firms are using technology to win-and win big. One example may be found in a recent article in the Spring 2004 issue of The Trial Lawyer (publication of the San Francisco Trial Lawyers Association), "Winning the Close Case: Increasing Your Damages with Technology," by Bill Smith and R.J. Waldsmith. The title alone should raise concern, and the topic is spreading like wildfire. The article features a case study of a swimming pool diving accident (Shropshire v. City of Walnut Creek), wherein a jury delivered a verdict of nearly $28 million-a verdict of as much as 40-50 percent more than might have been expected using traditional presentation methods, according to Mr. Smith.

Examples such as this are sounding a wake-up call to defense firms, insurance companies, corporate in-house legal departments, and government agencies. Cost used to be a prohibitive factor for smaller firms, but trial presentation software prices have dropped, education and awareness have increased, and court presentation consultants may be found to support their cause.

With much of the early use of trial technology having been adopted, developed, and practiced in-house by large defense firms, it has now spread to the masses. Many of these pioneers in litigation support departments have gone on to join or become vendors and litigation technology consultants, offering the plaintiff's bar the same powerful tools as their counterparts.

DEFENSE FIRMS
Having once led the litigation technology parade, the defense bar may now be scrambling to catch up to even the smallest plaintiff firms. Perhaps part of the reason is that early on defense firms had to make efforts to hide the perceived "deep-pockets" of their clients from jurors, thus causing a reluctance to utilize electronic presentations in all but the largest of cases. With the level of multimedia exposure combined with an increasingly lower percentage of jurors having not been raised on technology and electronic media, this is no longer such an issue.

Whereas insurers were at one time reluctant to pay high-tech litigation support costs, now many are willing to cover these services. In many cases, they are even encouraging counsel to utilize all that is available. The results tell the story.

Safeco Insurance (Law Offices of Larry D. Langley) recently gave technology a chance in a couple of cases, and landed defense verdicts in both (King v. Dillon and Washington v. Koerber). In King v. Dillon, one absentee witness who was unwilling to testify in court was available to the jury via his videotaped deposition. His testimony had a significant impact on the outcome, and played well with the court's instructions to consider the weight of the testimony to the same degree as if the witness were on the stand. Plaintiff 's attorneys hired an accident reconstruction expert to prepare an animation to support the testimony of the plaintiff. Langley successfully used it against them by playing it for the reconstructionist as he methodically reduced it to only one theory among many possible, while exposing visual misrepresentations, including plaintiff 's clothing color and time of day. The defense also countered with an effective animation of their own. Had the defense come to court without the same capabilities as the plaintiffs, this would have been very difficult. The deposition video and the animation were played again in closing arguments, helping to solidify and refresh the jury of these holes in the plaintiff 's case. In King, Larry Langley (a DRI member since 1983) tried his first technology-enhanced case, and he was able to incorporate it with his own presentation style. Langley believes than incorporating technology into his trial made his arguments much stronger, and noted the marked increase in both efficiency and effectiveness. With the degree of flexibility in modern trial presentation software, a litigator can continue to try cases in much the same fashion as without.

THEN AND NOW
There was once a great fear by the defense bar of appearing as "deep pockets" or too "slick." While this argument may have had some strength several years ago while much of this was new and considered on the "cutting edge," it's simply no longer an issue. The facts are that jurors expect to see it due to media exposure or previous jury service, plaintiffs are gearing up now that the field has been leveled, the courts are pushing for it due to the increased efficiency and speed of trials, and even insurance carriers and government agencies have secured season tickets on this bandwagon, often after witnessing opposing counsel present a powerful case.

When laptop computers first came out, they were considered the flashiest techno-toy on the planet. Now, it is likely that more attorneys use them than not. The same goes for court presentation technology. Nearly everyone has seen a projector and screen, and the jurors are exposed to little more than just that with respect to what goes on behind the scenes. Sure, they may see a paragraph blow up and get highlighted in front of them, and some may even show some amazement the first time they witness it. However, unless your trial is less than an hour or so, they will quickly become desensitized to any of the magic you might display. And, they do not see the complex database "engine" required to run all of this.

COURT'S OPINION
With only a few rare exceptions, most judges these days are willing to allow you to set up a traveling road show in their courtroom. Don't tread where you shouldn't, however. Showing up in court on the day of trial with no advance notice, wishing to set up a small theater, may find your equipment waiting outside when the day is done. Every judge, clerk, and bailiff will have valuable information as to what has been done before, what works well in their courtroom, and what does not. Also, setting up trial equipment may take, as much as two hours or more, so proper arrangements must be made with the court. Often, property passes and/or orders from the judge are required.

Courts are pushing for it due to the increased efficiency and speed of trials.

The fact that court presentation technology shortens trial length by as much as 50 percent, and that it greatly enhances the jury's comprehension is not a bad thing at all. These are reasons the courts are willing to spend money on permanent technology installations in these financially strapped times. Additionally, many judges have written and commented very favorably regarding the use of technology during trial.

POST-TRIAL JURORS' OPINIONS AND PERCEPTION
This writer has participated in and studied numerous post-trial juror surveys, and the story remains consistent. Once jurors are selected, although they then begin to develop a sense of ownership, they also have a strong desire to conclude the matter and return to their normal lives. When one firm uses technology in presenting their case and the other does not, the difference in efficiency is noted. Although this does not necessarily have a great deal of effect on the verdict, it can certainly help in the perception that someone is trying to help this matter move along. Jurors are also keen to the fact that, as opposed to passing along hard copy exhibits, having a document zoomed and highlighted on the screen helps them to quickly focus and better understand the message.

TECHNOLOGY V. OLD SCHOOL
Using technology to display exhibits, an attorney can normally cover much more ground when compared to passing out hard copies of everything, or fumbling with numerous stacks of posterboard enlargements. This is due in part to the processes in which documents are displayed. Using a trial presentation software database to store all exhibits, demonstratives, and videotaped depositions, counsel can simply request to have Exhibit X displayed to the witness, judge, and counsel for review and authentication, normally on a small flatpanel monitor. Once the witness buys into the exhibit, permission is then asked of the court to "publish to the jury," or to have the exhibit admitted at that time (actual procedure depends on the judge).

As an added bonus, juror retention can increase by as much as 60 percent (as low as 20 percent with aural input only, up to 80 percent with aural/visual), while reducing the duration of the trial by as much as 50 percent. When measuring costs, these statistics should be considered.

When comparing methods of presenting exhibits, one can see the difference by simply counting the number of exhibits introduced and displayed during a closing argument. This number has been observed to be as much as five times greater when displaying documents on-screen as opposed to using hard copy paper documents.

TECHNOLOGY OPTIONS
There are many means to an end. While the verdict may be the prize, getting near it won't be any easier using substandard methods and techniques of trial presentation. It is very easy to get so dependent on technology that its use becomes predictable, and even boring. Not to mention that if you don't have a decent case to begin with, or if your trial skills are in a state of disrepair, simply bringing in some technology is not likely to change much.

Court presentation technology can range from an ELMO, to PowerPoint, and all the way to other, specifically designed, trial presentation software. Each item, used properly, can greatly enhance the presentation of evidence.

An ELMO can be loosely compared to an overhead projector, in that it looks somewhat similar. However, instead of being forced to print transparencies of exhibits or demonstratives, now one can place a paper exhibit on the table, and it can be zoomed and focused. Additionally, small exemplar items (i.e., pen, gun, etc.) can be placed and displayed. The ELMO is actually a video camera system, and it will require a projector and screen for display. It does not simply beam a light onto the screen like an overhead projector.

PowerPoint has been used in numerous trials, and although it is certainly a great presentation tool, its strength is also its weakness. That is, PowerPoint is designed to present one slide after another, and in a predetermined order. It's great for business or sales presentations, but the problem in using it for trial is that rarely (if ever) does a trial go according to plans. A witness steers off in another direction, or perhaps timing becomes an issue. When this happens, it is not always easy to jump to a given slide, which is not next in order.

Software (e.g., Sanction II, TrialDirector, Visionary) has been specifically developed for organizing and presenting evidence to juries during trial. Many different types of media, including deposition and non-depo video, document exhibits, demonstrative graphics, and even animations may be quickly located and presented to the jury in a random fashion. Documents and graphics may be zoomed in to direct focus to a particular paragraph or sentence, while text is highlighted, arrows pointing, circles drawn, and the list goes on. All of this trains attention to exactly the desired point, preventing further examination of the document, while at the same time all 12 jurors see the same thing. One of the biggest problems encountered when passing paper copies to the jury is that by the time juror number 12 gets the exhibit, counsel is long past the topic. Another problem previously noted is that there is no control as to which part of an exhibit the juror is actually viewing.

Comparing trial presentation software applications is similar to comparing automobiles. One will have a preference for a Chevy, and have good reasons for it. Another will have just as strong a conviction in selecting a Ford. Both vehicles will get you there, but there are differences. The trial databases will look similar, functionality is similar, and the end result is similar.

The point to be made for using trial presentation software is not so much to compare it with its direct competitors (although that should also be considered when purchasing), but rather to compare it with other applications, which are nonspecific. That is to say, when compared with general business presentation or graphics programs, now the comparison might be better represented as between a bicycle and an automobile. Yes, they will both get you there, but one has a decided advantage in that it is much faster, more efficient, and more effective at its primary task-be that daily transportation or trial presentation.

ACTION STEPS: HOW TO PREPARE
There are many ways to begin utilizing trial technology, from putting together a PowerPoint slideshow to completely digitizing all of your evidence. There are also options with respect to who will do what-from doing it all yourself to having a consultant handle everything for you, and anywhere in between.

For the tech-savvy attorney who is willing to do the work, court presentation software is certainly simple enough to use in preparing and presenting your trial. With minimal training, or just spending enough time working with the software, one can quickly master the basics. Although nobody knows the material like the attorney on a case, there will be tradeoffs with respect to the time required to build and maintain the database, along with the inherent risks of technology "issues" during trial. For those desiring to do it themselves, a line is often drawn with respect to the duration or monetary value of the matter.

In matters where the volume of work mandates someone devoted solely to the task of trial technology, a consultant or in-house staffers may be brought in to assist. This can free up the attorney's time to do things better related to the actual trying of the case. A good trial technology consultant or experienced in-house support person can quickly take the lead in gathering the materials, setting up document naming conventions, converting everything to digital format, developing the trial database, setting up the courtroom equipment, and assisting with evidence presentation during trial.

One may also wish to consider a "middle- of-the-road" approach, having much of the preparatory work done, perhaps getting some help through opening and closing, and a couple of key witnesses. On trial days in which less important witnesses are scheduled, or where there is less likelihood of needing to display the documents, the attorney may choose to run the show.

EQUIPMENT NEEDS
Don't overlook the fact that you will need court presentation equipment to share your evidence with the jury. A typical setup will include a high-powered projector (minimum 3,000 lumens), large screen (7 or 8 feet), four flat-panel monitors (for previewing evidence-one for judge, witness, and each counsel table), ELMO, amplified speaker set (for deposition video), plus switches and cables to connect computers from each side.

Arrangements must be made with the court well before the trial, as there is likely not a judge in the land who will allow two full setups of this type. Consequently, you will need to approach opposing counsel regarding sharing equipment and rental expenses. One safe method of handling this without showing all of your cards is to suggest that you plan on showing a "little PowerPoint" during opening, and that you've been informed you will need this equipment to display to the jury, and have the ability to preview in order to address any objections. The response you get can often give a bit more insight than anticipated as to technology plans from the opposition. In the event opposing counsel will not cooperate or agree to share expenses, make sure to address this before the judge. This can prevent comments along the lines of who can afford to spend money where, and requests to display your evidence in front of the jury. If you are asked to display something, the best path might be to go ahead and cheerfully oblige, and then request a sidebar at the appropriate time.

CONCLUSION
The rising wave of trial technology continues to roll at a rapid pace, and matters tried with technology are becoming commonplace. Insurers are demanding an equal footing, and it is probably only a matter of time until the first case of malpractice is filed for failing to utilize the readily available resources.

The use of technology to display evidence in trial does not necessarily replace the methods that have worked for years, but rather it should supplement them, and should be flexible enough to conform to trial skills, which have been developed over the years. In the King matter previously mentioned, the 62- year-old Mr. Langley did not dramatically alter the way in which he tried his case. In fact, he began his opening statement, continuing several minutes before he casually recalled that he had "some photos and things to show (the jury) about what I've been telling you." His first two technology-enabled cases having netted defense verdicts, you can imagine he might just continue this course.

© 2004 DRI. All rights reserved.
Courtroom Technology - November 2004 Issue - For The Defense

Consultant Ted Brooks is president of San Francisco-based Litigation-Tech.
E-mail: tbrooks@litigationtech.com

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Litigation Support: Hiring Trial Consultants, By Ted Brooks - Article for:www.lawtechnews.com
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Increasingly, law firms turn to litigation consultants to help them develop sophisticated courtroom presentations. Here are 12 tips to make that relationship a true "win win:"

1. Choose and retain your trial consultant as early as possible. There are many resources available to help you locate a good consultant, including web searches, referrals, litigation support groups and directories. Good consultants are busy consultants, so you hire them early. If you do a lot of trial work, you might consider retaining a consultant on an ongoing basis.

2. Check for conflicts. As with law firms, trial consultants generally only work on one side of a case, although there are circumstances where they serve as a "neutral" for both parties. Clarify this before you sign the contract. Also, run a conflicts check to protect your existing client relationships.

3. Get an estimate, with options. To avoid unhappy surprises, discuss in detail the expected litigation workload, and request a written estimate of what you can expect to spend on trial support. Most trial consulting services are billed hourly. Rates typically start at $150 to $200, but can go higher, depending on the case and consultant. It's not uncommon for a one-month, full-service trial to generate a consulting tab in excess of $50,000. Not all cases warrant those expenditures, so be candid with your consultant, and discuss alternatives.

4. Try to identify specifically what you need and will expect your consultant to provide. Although your consultant should be able to assist you in defining these goals, the more information you can provide up front, the better your chances of success. Unclear communication and assumptions are a proven recipe for disaster.

5. Make sure all interested parties are on the same page. A consultant, working with staff, may head down one path, only to find that the lead attorney has another plan - and was not aware of what was going on. Try to get all communications onto a "paper (or e-mail) trail," and include anyone who should be in the loop. Many potential issues can be identified before they become problems. Try to avoid giving too much information over the telephone, as this makes it impossible to verify and track the communication.

6. Research your consultant. Thoroughly check out his or her website, "Google" them, ask for referrals and references - and actually check them! Listen carefully to those who have worked with the consultant - do you sense any hesitancy or reservations? Identify the primary business focus of your consultant. (This is generally apparent by reviewing the website.) If you are looking for a trial consultant, don't contact a videographer or scanning vendor, and vice versa (unless for a recommendation). Don't be your consultant's first "real trial" experience.

7. Make sure you know who will actually be working on your matter - don't just buy into a smooth sales pitch. Meet the trial team face to face. Get, in writing, the name of the team leader and the consultancy's commitment that the team will remain assigned to you for the duration of the litigation.

8. Don't change horses mid-stream. Be sure your consultant is absolutely fluent in all the litigation support software you are already using. This includes Concordance (Dataflight Software Inc.); Summation (Summation Legal Technologies Inc.); TrialDirector (inData Corp.); Sanction II (Verdict Systems); etc. Do not assume that every consultant knows every software application. Many can work with several, but others may not. Do not duplicate work product simply because your consultant does not use your software.
9. Avoid proprietary systems. Should there come a time when you are no longer in love with your consultant, you may want to get out of the marriage. If they are using their own software systems, it may be difficult for someone else to take over the database.

10. Listen to your consultant's opinion. You are paying good money to have a consultant on your team. Realizing that trial work is what they do most of the time, ask questions, get advice, and check in with them often.

11. Debrief! Once it's over, review the trial. Evaluate what worked, and what didn't. This is a good time to ask your consultant their opinion on what might be done differently. It is also a good time to decide whether your consultant is the right fit for your trial team in future matters.

12. Pay the bill promptly. Getting paid quickly and painlessly will encourage a good consultant to sign up for your next project. Don't make the consultant send you numerous bills.

Consultant Ted Brooks is president of San Francisco-based Litigation-Tech.
E-mail: tbrooks@litigationtech.com



Law Technology News December 2004

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Winning The Close Case and Increasing Your Damages With Technology - By: William B. Smith, R.J. Waldsmith, and Ted Brooks   Print This Article

GIVE 'EM WHAT THEY WANT!

In the business world, marketing is far ahead of the legal profession in effective communication. Marketing developed and perfected focus groups to understand its audience and PowerPoint presentations to persuade them. Trial lawyers are just beginning to embrace these tools. However, the technology gap is widening as lawyers fall farther and farther behind the curve.

The legal profession is based on precedent and tradition, which can limit advancements. Trial lawyers can learn from marketing because they also are both trying to "sell" something. A lawyer's products are intangible: case themes, his or her view of the facts, and how the themes and facts apply to the law. Trial lawyers have an advantage over businesses with large audiences as they only have to sell to a small group at a time (i.e., nine out of twelve). So, why do trial lawyers continue to use a horse and buggy approach to presenting evidence when state of the art technology is available?

The next time you are at your local mall, go into a clothing store that caters to people in their 20's and 30's and look around. You will see video monitors everywhere. They are used in airports, bars, restaurants, record stores and even on local and network TV to sell and communicate ideas. They have replaced the big sign and the poster. Video attracts attention and conveys information that is more readily absorbed in a more efficient presentation.

Jurors under age 40 have been raised with video monitors, handheld video games, computers and MTV. (Believe it or not, MTV has been around since 1981.) The images the younger jurors choose to watch move very rapidly, which has taught the younger generation to process visual information more quickly. They trust what they see rather than what they hear.

Published in Trial Lawyer Spring 2004

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The Trial Lawyer Spring 2004 issue.
www.sftla.org

Those who have perfected marketing, e.g., Pepsi or McDonalds, monitor their audience and change their advertising campaigns accordingly. Similarly, trial lawyers must adjust their presentations to fit their audience. The same old opening statement and direct examination are less likely to persuade younger jurors or jurors who use computers and regularly watch TV.

Visual learning however is not exclusive to the younger generation. Fewer and fewer jurors receive their information verbally (e.g., via the radio) as opposed to visually (e.g., television or computers). Not only are they used to it, most people believe what they see on 60 Minutes, 20/20 or Dateline, whether or not it is true. These television shows have been so successful because their formula of using technology to explain complex issues is readily accepted by the general public. They use narration over video or still photographs. Documents are shown with the pertinent text highlighted and lifted off the page for clarity and emphasis.

Most jurors expect more technology in the courtroom, particularly in larger cases. It seems outdated and slow-paced to use a chalkboard or butcher paper to illustrate a point. It is a brand new ballgame, so give the jury what it wants to see.

WHY ARE LAWYERS SO RELUCTANT TO USE TECHNOLOGY?

There are three excuses commonly given by lawyers for not using available technology at trial. The first is that they are technophobic, i.e., they are afraid to use it because they are unfamiliar with it and something could go wrong. This is the easiest fear to allay. All you need to do is contact a professional consultant who will familiarize you with what can be done and can do it for you. The risk of failure is extremely low and nothing to lose sleep over. The benefits far outweigh the risks.

The second excuse is cost, i.e., the concern that it might not be worth the cost or the cost would be too much for the size of the case. The response to that is another question: How much more will your case be worth by using effective presentation techniques? The investment in technology will pay great dividends if it is used effectively. In our cases, it usually pays for itself. Of course, you should have a budget and make sure that your consultant does not go beyond it without your approval.

Other ways of reducing costs are to share it with other parties on your side of the case or you can share it with your opponent. Consider negotiating with opposing counsel a split of the costs of the presentation equipment and installation, since most (if not all) judges will not allow two sets of equipment in the courtroom.

The third excuse is that an electronic presentation will be perceived as a slick show that will tell the jury that your client has a lot of money and the jury will hold it against you. In fact, the empirical evidence with juries is just the opposite. We have spoken with every juror after our electronic trials and there has been unanimous approval. Jurors do not accept appeals to poverty or references to our "fancy show." They expect a good video presentation because they see it on TV every evening.

If you are concerned that your opponent may comment in front of the jury about the expense of the technology or that your presentation is "slick," it would be appropriate to make a motion in limine under Evidence Code section 352 on the basis that such an argument is unduly prejudicial because it appeals to a party's wealth or poverty and is not relevant.

WHY SHOULD YOU USE TECHNOLOGY IN YOUR NEXT TRIAL?

There are several obvious reasons to present evidence electronically:

1. People accept and retain visual evidence more readily. Studies have shown that people retain visual information better than verbal information. Jurors retain up to 80% of what they see and it is as low as 20% without visual input. A picture IS worth a thousand words.

This is no surprise to trial lawyers because we have always dealt with the concepts of primacy and recency. People tend to believe what they hear first and tend to remember what they hear last. The same concepts apply to visual evidence. In fact, you can create a virtual tidal wave of evidence that will overwhelm your opponents who do not present evidence electronically.

The ability to support everything said in an opening statement or closing argument with video, photographs, documents, charts, bullet points, and timelines is very powerful. The jury can more readily associate the evidence with your position when it sees it rather than simply hearing about it.

2. Technology helps overcome juror bias. An effective presentation highlights the favorable evidence, which reduces the risk that traditional juror biases will affect the result. A juror who may not initially support your case is more likely to change his or her mind based on visual information rather than verbal information. Visual presentation allows you to break down these biases with clear messages and repetition. The advertising industry has been doing this for years.

3. A well-planned visual presentation dramatically shortens your case. U.S. District Judge Richard M. Bilby, one of the first judges to approve use of digital evidence at trial, estimated that computer technology can reduce trial time by 25-50%. Our experiences confirm this estimate.

When a trial lawyer must physically walk over and hand documents or photographs to opposing counsel, the judge and the witness each time an exhibit is identified, the process is slowed to a halt. Instead, when the evidence is stored in a laptop computer and presented electronically, it is immediately shown to opposing counsel, the judge and the witness without the jury seeing it. This allows a trial lawyer to present more evidence in a shorter period of time.

After a foundation is laid and the exhibit is entered into evidence, it is published to the jury by a flip of a switch that activates the screen the jury can see. All jurors see each exhibit at the same time rather than handing them to each other in the jury box.

Electronic presentation of evidence allows the jury to absorb the evidence rapidly, making it easier to prove your points. When you rely too much on oral presentation, each juror may have a different image in his head about the themes and facts. Technology allows you to control the image so that each juror sees the images you wish, very early in the case. It is like taking them to the movies as a group instead of giving each of them a radio to listen to on their own. This reduces the risk of misconception and gets them all on the same page rapidly.

Professional exhibit creators use color science and marketing techniques in making trial exhibits. This can also help a jury accept a message.

4. It will help you win the close case. When one vote is all you need to avoid a hung jury, visual evidence will help you get it. It allows you to easily and effectively repeat evidence that is prejudicial to your opponent. For example, depositions of parties can be read or played for any purpose during trial. (Code of Civil Procedure section 2025, subd.(u)(2).) We routinely play short segments of video depositions of parties for expert witnesses and during the closing argument to remind the jury of a bad witness. Otherwise, memories fade in a long trial. We never let the jury forget about an early bad witness.

5. It will enable you to get higher damages. Traditionally, evidence of economic damages is presented quickly and ineffectively. There is nothing more boring than a verbal presentation of numbers, supplemented with a few enlarged summaries.

Bullet point slides can help illustrate expert testimony, focus the jury's attention to particular elements of your client's loss, contrast the opinions of your expert economist vs. that of the opposing economist, and compute the total economic loss with summaries. These slides also are much more versatile than the traditional enlargements because they can be changed or corrected within minutes.

Visual evidence is extremely helpful in the presentation of non-economic damage testimony. Use short excerpts of family videos and photographs and punctuate direct examination testimony concerning pain and suffering and wrongful death damages. Several short clips are better than one or two longer ones. Your audience's attention span is very short and they are accustomed to seeing rapidly displayed images.

A multimedia presentation allows you to switch from a photo to a video to an anatomic model and back to another photo in a few clicks on a computer mouse. There is no need to stop everything to turn on a videotape player or to let a projector warm up. When done properly, it is virtually seamless.

HOW DO YOU GET STARTED?

Contact An Expert To Help You
Unless you are confident you can efficiently and effectively present electronic evidence at trial, an electronic trial consultant is needed to maximize the benefits of the technology. Trial experience is an important factor in selecting these consultants. We have had tremendous success with Litigation-Tech (www.litigationtech.com) and its main technician and president, Ted Brooks (415 291-9900).

In addition to organizing and presenting the evidence, an electronic trial consultant also will make arrangements for the rental, setup, dismantling and return of all the necessary equipment. A typical setup would include the following:

  1. Laptop computer (and a backup).
  2. Projector (3000 lumens).
  3. Screen (7 to 10 sq.ft.)
  4. Flat panel monitors (4 total - judge, counsel tables and witness stand).
  5. ELMO for display of non-digital documents and as an emergency backup.
  6. Speaker set, for deposition video playback.
  7. Switching and cabling for toggling from plaintiff to defense.

Isn't PowerPoint Enough?
Although PowerPoint may still be used in certain portions of a trial (e.g. opening statement and closing argument), it lacks the flexibility to support all trial needs. It was designed as a business presentation program in a linear format that requires that each slide be serially advanced before getting to the end. A trial never proceeds in a fixed, unchangeable format. Trial lawyers need the ability to change directions instantly, accessing exhibits, demonstrative evidence, video clips and impeachment video excerpts on demand.

TrialDirector (www.indatacorp.com) was developed specifically for litigation. We first used TrialDirector software in a five-week jury trial in April 2003 in Contra Costa County (Shropshire v. City of Walnut Creek), which resulted in a $27,500,000 verdict. Law Technology News (the leading trial technology magazine) recently recognized our use of technology in that trial by awarding us the 2004 national award for Most Innovative Use of Technology During a Trial.

How Do You Get Access To The Court For Setup?
Be sure to mention your desire to present your case electronically to the trial judge at the pre-trial conference to ensure that you can do it, learn the applicable local rules, and arrange the set up. Some progressive judges like Judge Steven Austin of the Contra Costa Superior Court and Judge Charlene Mitchell of San Francisco are very comfortable with technology in the courtroom and make it easy for you to try your case. Some other judges are still afraid of technology and may be less receptive.

What About A Record Of Exhibits For Appeal?
Even though no written documents may actually be used during your electronic trial, you have to make a record of exhibits. An exhibit binder with exhibit tabs should be given to the trial judge, opposing counsel and the court clerk at the beginning of trial. Each item of evidence presented electronically should be printed in a hard-copy form and provided to the court, opposing counsel and the clerk. Some judges want the hard-copies pre-marked and others will allow the hard-copies to be marked at the end of the proceedings each day.

All video clips are given an exhibit number and must be placed on a labeled CD-ROM or DVD in a notebook page equipped with a plastic pouch or pocket. You have the option of putting video impeachment on disc, too, if you want the trial judge or appellate justice to "see" exactly what the jury saw.

CONCLUSION

Once you overcome your excuses for not doing an electronic trial, you will see that it is the best option for presentation of evidence. Jurors feel more like active participants in the trial rather than as a passive audience. It also allows you to show the jury much more evidence, which is more persuasive and translates into higher damages.

William B. Smith and R.J. Waldsmith are partners of the firm Abramson Smith Waldsmith, LLP. They were nominated for 2003 Trial Lawyers of the Year by the Consumer Attorneys of California and the San Francisco Trial Lawyers Association for the Shropshire v. City of Walnut Creek case, which was recognized by VerdictSearch as the 67th largest verdict in the country last year and the 13th largest in California.


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Technology on Trial: Defusing Powerful Animation - By John Bringardner, Law Technology News. www.lawtechnews.com
Defense team turns plaintiff’s tech to its advantage
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ON February 4, 2002, at 8:15 p.m., Kevin King was crossing the street in West Hollywood, Calif., on his way home from dinner and a few drinks. Karen Dillon, 44, a Los Angeles attorney who practices at Alschuler rossman
Stein & Kahan, approached the intersection of North Crescent Heights Boulevard and Fountain Avenue in her black Porsche Boxster and made a left turn on a left arrow.

Dillon’s car hit King, a 42-year old costumer for 20th Century Fox, in the intersection. The vehicle was traveling somewhere between 20 and 30 miles per hour, and the impact threw King into the windshield. He was taken to Cedars-Sinai Medical Center, where he spent about 10 days in the intensive care unit, followed by an additional week in the hospital.

King sustained a 5mm subdural hematoma, a left frontal lobe brain contusion, a broken hip, and required surgery to repair broken bones, said his attorney Gerald Klein, of Newport Beach’s Klein & Wilson.

THE TRIAL
King v. Dillon, No. SC 071846 (Calif. Superior Ct., Los Angeles Co., West District, filed Aug. 13, 2003) went to trial in Santa Monica on August 13, 2003, before judge Valerie Baker.

It looked like a difficult case to defend.

The plaintiff’s medical bills totaled about $200,000 according to the court papers, and he claimed approximately $120,000 in future medical bills for antidepressant medications and psychiatric and psychological treatment.

Larry Langley and Pamela Shafer, of the Law Offices of Larry Langley, represent Safeco Insurance, and were charged with the task. They called upon San Francisco-based Litigation-Tech to help with trial support.

Michael Skrzypek (pronounced “sha-peck”), senior litigation technician for Litigation-Tech, says the first challenge the team faced was to “counter the prevalent misconception that a pedestrian in a cross-walk always has the right of way.” They also recognized the inherent difficul-ty of defending an attorney driving an expensive sports car. “Not a very sympathetic character to most juries, ” he conceded.

Klein predicted the case would be a slam dunk. Supporting his beliefs were two mock trials, that both delivered a finding of 90 percent liability for the defendant.

TECH FIRST-TIME
Langley, a 62 year old Oklahoma-born attorney, is the first to say that he had never used anything more technically complex than a white-board in previous trials. But Langley knew that his competition, plaintiff attorney Klein, had a reputation of being "very technologically oriented."

"Klein had made it clear that he was going to use a lot of video depositions. We had to keep a level playing field," Langley said.

Langley approached Litigation-Tech after hearing about the company through William Smith, a partner at San Francisco's Abramson Smith Waldsmith, who had worked on a case with Litigation-Tech president Ted Brooks. Skrzypek was assigned to the case, but confesses to some initial reservations.

"Langley has a comfortable, folksy personality that some would think wouldn't mesh with a technical opening presentation," recalled Skrzypek.

For his part, Langley said he had much to learn. Both sides used Microsoft Corp.'s PowerPoint for their opening statements.

Skrzypek created JPEGs from PowerPoint slides, put them into inData Corp.'s TrialDirector software, and interspersed video clips, exhibits, and photos for the presentation.

But it took the avuncular lawyer a few moments to remember his tech support, recalls Skrzypek.

"For the first 10 minutes or so of the opening, Larry didn't refer to me or ask me to start the presentation," Skrzypek said.

"I thought he had decided on the fly to revert to what was comfortable to him, just talking to the jury. But then he glanced over to me and said to the jury, 'Oh yeah, I've got some photos and things to show you about what I've been telling you.'"

"This set the tone for his use of the technology throughout the trial," reported Skrzypek.

"It wasn't slick, but he managed to integrate it into his style, rather than trying to change his style to suit the technology." The defense technology centered on a TrialDirector database, with hundreds of exhibits, dozens of demonstrative graphics and photos, several gigabytes of video depositions, and accident reconstruction animations.

The defense decided to use a rear projection screen that "allowed the projector to be in the empty gallery rather than the crowded bench area," explains Skrzypek. They set up four flat panel screens for the judge, witness, and counsel tables, and used speakers, with controls integrated into a switcher.

ANIMATION
The clincher, as Langley and Skrzypek tell it, was when plaintiff attorney Klein played an animation of the incident, which was created by traffic accident reconstructionist David King, of MacInnis Engineering Associates, based in Los Angeles.View the animation

King used PC Crash software, which helps users create 3-D collision simulations and reconstructions. His animation was used as the cornerstone of the plaintiff’s case, Skrzypek explained, and was based almost completely on defendant Dillon’s deposition answers.

It was clear that the plaintiff's side thought the recreation would be very damaging to her credibility, he said.

But the defense team managed to defuse the impact of the animation. Langley played the animation in slow motion throughout his cross of the reconstructionist. He also played it during his closing argument, stopping it at key points to question the assumptions the plaintiff used creating it.

"His ability to replay the animation and put our side's spin on it undercut the plaintiff's representation that the animation represented how the accident truly happened," said Skrzypek.

Langley was able to point out how the animation was "so totally different from the actual action," said Skrzypek.

For example, the plaintiff was wearing dark clothes at the time of the accident, but in the animation he was depicted as a bright yellow figure. The animation also appeared to be in daylight, with no other cars in sight, when in fact the collision had taken place in the evening with multiple cars around.

Langley also argued that the plaintiff's counsel had misconstrued critical testimony from defense witness Anthony Stein, president and technical director of Safety Research Associates Inc., based in La Cañada, Calif., who was qualified as an expert in pedestrian and vehicular movement and human factors.

Langley was able to convince the jury that Klein had "taken extreme liberties with the actual testimony and opinions of Dr. Anthony Stein," said Skrzypek.

DEFENSE VERDICT
The 12-person jury, after a heated deliberation, ultimately rendered their verdict, finding for the defendant. The jury was apparently swayed by defense arguments that Dillon had initiated her turn on a green left arrow and had no reason to anticipate that a pedestrian would be crossing against her protected left turn. Langley also argued that Dillon had insufficient time to react and stop in order to avoid hitting King, even if she did see him prior to impact.

MONDAY MORNING QUARTERBACKING
A motion for a new trial was deliberated for three hours before being denied. Klein, 48, says he was devastated by the loss, and was reluctant to talk about the verdict in detail. He reports that plaintiff King has since declared bankruptcy, and still has a golf ball sized lump on his head and permanent brain injuries.

Klein used Verdict Systems' Sanction trial presentation software to organize his case, and though it crashed once during the trial, he remains confident in his technology. He recounted post-verdict conversations with jurors who told him that the video did not make any difference in their decision.

Klein blamed the loss on California's tremendous hostility towards personal injury cases, particularly in Santa Monica (despite its reputation as a very liberal community). He also criticized himself for making a mistake in jury selection, allowing one juror to be seated whom he felt was hostile to his client.

In the end, Langley believes that his use of technology made his arguments much stronger. The ability to show text beside a video deposition, highlighting and emphasizing certain words made everything much faster and easier, he says.

The lawyers did face one "level field" challenge: Judge Baker put strict time limits on the trial: 22 hours per side.

It was a challenge. "You each have 22 hours for opening, closing, everything, and because this was a brain damage case, there were a lot of cat scans to go through," said Langley.

On Langley's wish list for future trials is technology (perhaps video) that could capture images of witnesses as they physically point to cat scans. "[Klein would] go through the scans and ask his [expert] questions, and there was no way to make a record of what he's looking at - without a freeze frame."

LESSONS LEARNED
Technology was a cornerstone in King v. Dillon, yet this trial also reminds us that technology alone does not make the case.

Langley was able to turn the tables on the plaintiff by deconstructing their animation. And after this case, Klein may want to explore jury selection software or consultants.

The use of litigation support technology bolstered everyone's arguments.

Ultimately, says Skrzypek, "I think the combination of his polite, deferential, Southern way of speaking combined with his low-key use of technology was extremely compelling to the jury."

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Wireless Spotlight: Case Study - By Ted Brooks, Law Technology News
Visit Law Technology News website   Print This Article
I recently bought a BlackBerry 7510, from Research in Motion and Nextel Communications, and I couldn't be happier. It is a far cry from the early units: they now sport a speakerphone and color screen, in addition to the wireless access to e-mail.

The ability to receive e-mail is probably the main reason for BlackBerry's wild popularity in firms of all sizes. With the 7510, you can access your existing Outlook, Lotus, or individual POP e-mail accounts directly from the device.

The BlackBerry service includes an e-mail account, but resist the temptation to use it. Even the smallest of firms are better off establishing a professional-sounding Web site domain and e-mail account, to enhance the firm's professional image. Let's face it, superlawyer 543119@BlackBerry.net just doesn't, well, look professional.

For individual use, or for use by small firm lawyers, a POP account may suffice. Setting up your POP account is as simple as entering your user name and password in your Web browser.

Larger firms with multiple BlackBerry users may want to integrate BlackBerry services into their networks.

Firms that use Microsoft Exchange or Lotus Notes can use the industrial-strength BlackBerry Enterprise Server, or use the BlackBerry Desktop Redirector, to extend their Microsoft Outlook mailbox functions.

ATTACHMENTS

The ability to read e-mail attachments has always been a challenge to BlackBerry users. The attachment features with my BlackBerry 957 never seemed to work properly.

Fortunately, with the BlackBerry 7510, attachment functions are integrated, and although there are limitations, the device can be used to view Word documents and spreadsheets. It's only text though, so don't expect to see a miniature image of the page.

Using a special USB adapter cable, the 7510 can synch e-mail contacts, calendar, notes, and other information. A real plus: You can set up all of your contacts, including addresses, phone numbers, and e-mails in your e-mail program, and just transfer them to the BlackBerry.

Nor are you restricted to Microsoft Outlook. The 7510 also synchs with Act, GroupWise, Outlook Express, Lotus, even Netscape. No more typing in phone numbers — and it also has a built-in cell phone.

You won't really be the talk of the town with the BlackBerry phone, as it is just a bit too large for most people to use as their main cell phone. (The salespeople tell you to use the headset.)

But for occasional short calls, it works just fine — and even has a speakerphone. The Nextel model includes the company's signature walkie-talkie feature, too (and yes, you can silence it).

The BlackBerry's QWERTY keyboard has been, and remains, the one factor that sets it above other handheld devices. Who wants to hit a key three or four times to get to the letter you want. External keyboards get lost, tangled, forgotten, or broken.

COST

The 7510 runs about $500. Phone, Internet, and e-mail service cost about $99 per month, e-mail only is about $50 per month.

Ted Brooks is president of San Francisco's Litigation-Tech, a trial and legal technology consulting firm.
He was the winner of the 2003 Law Technology News Award for Most Innovative Use of Technology During a Trial, with Abramson Smith Waldsmith.

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