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Techno Feature
Practice management and technology articles written by experts.     May 25, 2004



Synopsis
In this article, trial and technology consultant Ted Brooks discusses of the hottest topics in the legal profession today visual communication at trial. The article is based on an MCLE course Ted has taught at numerous firms and government offices. You can download a copy of his PowerPoint presentation from his Web site. This article contains 2,312 words.

TechnoLawyer.com: Trial Technology and Visual Communication
By Ted Brooks
(This article is a TechnoLawyer exclusive.)


INTRODUCTION

Along with e-discovery, courtroom technology is one of the hottest topics buzzing in the legal field today. Courts and clients are encouraging counsel to get up to speed with the type of trial presentation that can cut the length of a trial by as much as 50% while at the same time increasing juror comprehension and retention by as much as 60%!

Post-trial jury surveys reveal that there is no reason to fear technology in trial. To the contrary, one should fear the lack of it when considering that jurors overwhelmingly express appreciation to the trial team that utilizes technology, and that they are well aware of the benefits: better comprehension and a shorter trial. Also, remember that nearly half of today's jury pool has grown up with computers, television, and all forms of multimedia information and entertainment. While technology and visual communication will not make you a better attorney, it can make you easier to follow and understand.

PRESENTATION STYLES

Let's assume we have three basic trial presentation styles. First, we will cover the "Old School," then "Middle-Tech," and finally "High-Tech."

OLD SCHOOL In the event that you don't have kids, the term "old school" can refer to nearly anything that has been done or existed in the past, including tennis shoes, music, etc. That stated, we can include items such as hard-copy exhibit binders and posterboard blowups in this category. It doesn't take much courtroom technology to use these demonstrative tools (although it does to create them).

Even in technology-enhanced litigation, a hard-copy set of exhibits must be placed into evidence. The display is not the evidence, but only a means of sharing it with the jury. The difference would be that you do not need to have four sets of everything in court, and that everyone can be on the same page at the same time. The downside of paper is just as it has always been it is often difficult to locate exhibits, it is time-consuming to pass an exhibit to opposing counsel, judge, witness, and then on to the jury, and it is impossible to control what a juror might look at or focus on not to mention that by the time juror #12 sees the exhibit, you are probably long past that point with the witness.

Posterboard blowups have been used successfully in thousands of trials. This writer believes that they are not to be considered obsolete, but rather than having a collection of 50 or 100 boards to search through, stumble over and crash from the easel, we can now reduce the number to just a few of the most important items. These might include a timeline, "smoking gun" documents, maps, etc. And, if you are lucky, they might just sit there during opposing counsel's examination. You can't do that on screen.

MIDDLE-TECH Here, we will include an ELMO, PowerPoint, and projector with screen. An ELMO (trade name for an electronic document camera) is a great way to show documents, zoom in on certain areas, or display a small exemplar or physical exhibit. The jury is forced to remain on the proper page, and everyone sees the same image at the same time. The main downside is that the display is generally not as clean and clear as a document in a trial database. It is also more difficult to zoom into a specific area, colors appear washed out, and you still have to handle the hard copy to display it. When used in high-tech trials, an ELMO can help in the event an unplanned document needs to be displayed or if other problems arise. It is also low-cost insurance.

PowerPoint is a wonderful application that was designed for business presentations. Although it too has been used in thousands of trials, it was not designed specifically for litigation. The strength of PowerPoint is also its shortcoming. With a PowerPoint presentation, you have a beginning or title slide. Then, you advance through the presentation one slide after the next, until you reach the last slide. Although this is a neat, organized method of packaging a presentation (be it litigation or business), the problem in using this in litigation is that there is not a trial lawyer alive who has seen a trial go exactly as planned. A witness jumps to another subject; impeachment opportunities may arise. Even opening statements and closing arguments are often changed mid-stream due to time constraints, jury observation, or other reasons. PowerPoint is designed as a linear format presentation application. It is also used in a high-tech trial to display bullet points and charts.

A projector and screen are needed to display a PowerPoint or ELMO to the jury. Although some courts have them available, most still do not. You will need to rent or purchase them, and also arrange with the court to install them before trial. You should also consider approaching opposing counsel to see if they are willing to split expenses. Judges will not allow two separate sets of equipment. There is simply not enough space. A good courtroom projector should be rated at 3000 lumens or greater. A courtroom is not a darkened meeting room. Often, lights are on, windows are open, and a weak projector will not allow the jury to view the display. A screen should be in the 8'-10' range. Again, assuming you want the jury to see the display, don't expect that they can view a 5 foot screen from 20 feet away with a 1000 lumens projector.

HIGH-TECH In the best of high-tech trials, all of the previous styles are not discarded, but supplemented by adding yet another way to present your evidence by using software designed specifically for courtroom presentations. TrialDirector, Sanction, and Visionary are a few of these programs. This writer prefers TrialDirector, but the other trial-specific programs will certainly get the job done.

The true beauty of courtroom presentation software is that it enables you to instantly move to a document, zoom and highlight a selected area, jump then to a demonstrative exhibit, and then on to a deposition video clip. All of this can be done in a random fashion, as long as you have included it in your database (and as long as the database has been developed properly). Each item may be accessed by scanning a barcode or typing in an exhibit number. TrialDirector will allow you to locate and view a document in the database view, then shift it to display mode for the jury without any typing at all. There is no waiting for a VCR to locate the correct area, or dropping blowups or paper exhibits. The time to access a document and display it to the jury is measured in only seconds.

Videotaped deposition excerpts may be played for absentee witnesses, or for impeachment purposes. It is far more powerful watching as a witness views his own testimony as he is impeached than asking the jury to listen to another "read-in" transcript excerpt. For witnesses who have not been videotaped, the transcript may be displayed in a scrolling "read-along" fashion, affording a second method of getting the message. Studies have shown that visual communication retention is as high as 80%, while aural is as low as 20%. In observations of jurors listening to non-video transcripts being read into the record, the viewing rate of the scrolling transcript is nearly 100%.

Equipment requirements in the high-tech category are similar to those for the "middle-tech" category, with the recommended addition of four small flat-panel monitors one for the judge, witness, and each counsel table for the purpose of previewing documents. Once authenticated, permission is requested of the Court to "publish to the jury." At that time, a switch is flipped, and the exhibit is displayed to the jury via the projector and screen. Depending on the Court, exhibits may be admitted at that time, or at the end of the day.

When considering which exhibits or depositions to include, it is always better to have, and not need, than to need, and not have. It is good practice to include everything related to the case. You may not need it, but the other side may and then you will.

The quantity of exhibits alone can have a great influence on the jury, considering they are instructed to "weigh the evidence." When one side uses technology and the other does not, the quantity of exhibits admitted with technology can easily outnumber opposing counsel's hard-copies. It is simply faster, more effective, and more efficient.

PRESENTATION METHODS

DO-IT-YOURSELF You may prefer to purchase TrialDirector (about $600) and run the whole show yourself. In doing so, you will have complete control over the entire universe of documents, graphics, and video. Nobody knows the material like you, and this may be the way to go for the true TechnoLawyer. With a bit of training, or just working with the software, one can easily take a case to court.

The downside to handling everything on your own is the same reason you hire others to assist you for other tasks, be it associates, paralegals, etc. Often, there is simply not enough time available to take on yet another role. It is also generally more cost-effective to have someone billing at a lesser rate to handle the trial technology. This may also greatly reduce the degree of risk involved, given that it is usually not a question whether the technology might have a problem, but when, and how quickly one can recover and without having the jury notice anything.

LOAD-SHARING This is a "middle-of-the-road" approach, enjoying all that the technology can offer, while working within a lower budget. To move up to a full-support trial, many attorneys have stated their magic number is around $1 million. Less than that, you will need to find ways to cut costs. Over that, the trial warrants full attention to every detail. This load-sharing compromise enables an attorney to have a database developed, get documents scanned, videotaped depos prepared, and demonstrative exhibits created. Then an attorney or paralegal can take it to court. Often, a trial consultant is used to help through opening and closing, and a couple of key witnesses.

FULL SUPPORT When the scope of the trial and budget thereof permit, it is time to bring in the pros. A good trial/technology consultant will bring a great deal of calm and peace of mind to the trial team. Trial techs and consultants generally spend more time in court each year than not. This is what they are educated and trained to do. They are not there to try your case, but rather to assist you in getting the jury to understand your message, and perhaps even more importantly, your client's perspective on the case. Although individuals in this field vary, a typical background might include computer technology, graphics, psychology, and some legal training or education.

The key to working in a full support trial is communication. For example, when you make reference to a certain paragraph in a certain exhibit, the tech will need to know what it is you are talking about. They will generally work with whatever methods you currently use for identifying the exhibits be it Bates numbers, deposition exhibit numbers, or trial exhibit numbers. It would be a bit difficult to simply request "the letter from Jones, dated 12/11/02." When using full support, the trial tech or consultant will typically develop and prepare a trial database, get the courtroom set up before trial, attend the entire trial, and assist in daily preparations. Risk of technology failure is also minimized in that most trial/technology consulting firms will provide two independent computer systems just in case one has problems. Additionally, experienced consultants know how to quickly (and usually not even noticed by the jury) recover from any technology-related problem.

THE BOTTOM LINE

The question that must be considered for each and every trial is, "What does it cost?" Perhaps another way of asking this of yourself might be, "What will it cost me if I don't take advantage of everything available?" This writer has been a part of several trials and settlements (both plaintiff and defense) in which counsel has stated that the outcome was greatly influenced by the use of technology. Additionally, once they have tried it, most first-time users of trial technology vow to never try another case without it.

The actual cost of using technology in a trial varies depending on the degree of support (do-it-yourself, load-sharing, full support), the duration of the trial, and the venue. Billing rates are typically higher in major cities, but often that is where you find the best trial consulting firms. Hourly rates for trial techs and consultants vary from the low $100's up to the $200's, with some going even higher. A one month trial might run in the $60-$70k range for full support, and may drop to $20-$30k for load-sharing support.

CONCLUSION

Like it or not, courtroom technology is here to stay. The courts are pushing for it, realizing that although their case load is not getting smaller, they can speed up the process with technology. Many are even purchasing equipment for counsel to use at no cost. A few judges even require it. Many tech-savvy clients demand it, and jurors expect to see it. Many lawyers have decided to give it a whirl after seeing a presentation (or reading an article). Others have been convinced in the courtroom some after a loss. The old excuses (costs too much, too flashy, too risky, etc.) no longer work as they now have all been overcome.

ABOUT THE AUTHOR

Ted Brooks is the President of Litigation-Tech LLC, a trial technology consulting firm based in the San Francisco Bay Area. Ted recently won the Law Technology News Award for Most Innovative Use of Technology in a Trial. You can contact Ted via e-mail tbrooks@litigationtech.com or telephone 415-794-6454.


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 About TechnoLawyer
Published on Tuesdays, TechnoFeature is a weekly newsletter containing in-depth articles written by leading legal technology and practice management experts, many of whom have become "household names" in the legal profession. Most of these articles are TechnoLawyer exclusives, but we also scour regional legal publications for superb articles that you probably missed the first time around. Learn more about TechnoFeature.

Copyright 2004 PeerViews Inc. All rights reserved.

 


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