The Electronic Trial . . . seeing is believing! - by William B. Smith and Robert J. Waldsmith

All trial lawyers recognize the importance of demonstrative evidence to keep jurors interested, thereby increasing the likelihood that they will retain the information. With this in mind, the means to visually persuade jurors continues to advance. Simple white pads and a magic marker in the 1970s evolved into storyboards in the 1980s, followed by a DOAR/Elmo machine in the 1990s.

Today, computer programs and sophisticated projectors or plasma screens allow trial lawyers to efficiently present numerous photographs, video clips, documents, x-rays, CT Scans, MRIs, and Power Point-type themes to the jury. The ability to control and organize so much evidence through such trial software gives lawyers the freedom to show juries more information in less time. This increases the trial lawyers’ power to persuade.

William B. Smith and Robert J. Waldsmith, with the law firm of Abramson & Smith

Trial Consulting and Courtroom Presentation provided by Litigation-Tech LLC

Why do an electronic trial?

Your jurors appreciate and expect it
Most jurors today were raised watching television. They rely less on hearing the spoken word and trust their own eyes to learn and to retain information. They are impatient learners and want information as quickly as possible. The electronic trial is the perfect way to teach these jurors and it keeps them from being bored.

Jurors are used to learning from news programs, such as 60 Minutes and Dateline. Fewer people today listen to the radio for their information, and most people are not trained to retain information received in a pure verbal form.

Jurors also have a preconceived idea of how a trial should go from the endless television shows and movies that include scenes of a trial. A one-hour television show contains approximately 44 minutes of the story, after all the commercials. On television, cases are tried during that limited time frame, with closing arguments taking only 10 minutes. With this in mind, trial lawyers should keep their cases as short as possible and should pepper their examinations with as many visual aids as possible.

It allows you to overwhelm your opponent
Trial is a credibility race and the sooner you can convince the jury that your position is the more reasonable one, the better. The time-tested psychological concepts of primacy and recency still work. That is, jurors tend to believe what they hear first and remember what they hear last.

The electronic trial allows you to do both. It gives you the freedom to flood the jury with visual evidence that is favorable to your case. You will be able to identify and offer exhibits faster electronically than by the traditional methods. If this is done in an orderly manner, your theme will be presented in a way that will be believed long before your opponent can rebut it. If your opponent does not rebut it visually, it will be very difficult to overcome.

By repetition of your key visual evidence during your case, your opponent’s case and during argument, you also can have a psychological advantage of recency.

Recently, we tried a quadriplegic case in 18 trial days in Contra Costa County (Shropshire v. City of Walnut Creek). We represented a diver who collided with a female synchronized swimmer when he dove off a three-meter diving board at a public dive pool. In the short time it took to try the case, we identified approximately 150 exhibits (documents, photos, video clips, and Power Point summaries of experts’ opinions). We never would have been able to handle so many documents so quickly if we had not presented them electronically.

It is an effective way to overcome juror bias
The press and late-night television comedians have programmed jurors to believe that most lawsuits are frivolous, that trial lawyers are evil and that plaintiffs should take personal responsibility for their own injuries instead of having the audacity of blaming others for their misfortune. These preconceived notions affect every jury pool and they are the subject matter of continuing legal education programs on jury bias.

It is the job of a good trial lawyer to overcome this bias against plaintiffs and trial lawyers. There is no better tool than the electronic trial to accomplish just that.

Shropshire v. City of Walnut Creek – a complete electronic trial
The Shropshire case was tried before Judge Steven Austin in Contra Costa Superior Court for four weeks in April of this year. It involved a college diver from U.C. Davis who became a quadriplegic at the dive pool at the Clark Memorial Swim Center at Heather Farm on July 6, 2000. The pool was owned and operated by the City of Walnut Creek. Mr. Shropshire (age 20) visited the dive pool that day to teach two beginning diving classes for his UCD diving coach, who was an assistant coach for a diving club (Diablo Divers) that rented water time at the dive pool. After he finished teaching, Mr. Shropshire joined the Diablo Divers in their continuing practice and worked on his own dives under the supervision of the head coach.

During one of Mr. Shropshire’s dives off the three-meter board, a synchronized swimmer, who was sharing the pool, unexpectedly left the side of the pool beneath his board and swam directly into his landing area after he had left the board. His head collided with the swimmer’s right hip area and he became an immediate C4 quadriplegic.

The plaintiff’s theory of liability was that the City created a dangerous condition in the dive pool by scheduling two inconsistent aquatic activities (diving and synchronized swimming) in the same pool for practice without any means of physical separation, without lifeguards and without any rules regarding shared-use safety. The city rented water time to a synchronized swimming club (Walnut Creek Aquanuts) and the Diablo Divers and it left it up to the two clubs to work out safe shared use. As part of their practice, the synchronized swimmers enter the diving area to perform routines and to swim laps.

The plaintiff’s expert testified that the swimmers should never enter the diving area during diving practice since that creates the risk of a diver/swimmer collision. The diver vs. swimmer hazard could easily have been avoided by setting up schedules so the two groups were not in the pool simultaneously. The risk of encountering such a hazard could easily have been reduced by ordering the clubs to use the available floating lane line as a barrier.

How to do an electronic trial?

Can you afford it?

There are two ways to do an electric trial. The most expensive way is to have a computer consultant in court operating the system. A good computer consultant can cost between $150 to $200 an hour. The least expensive is to have a computer consultant scan all of the documents, photos and videos into a computer program, such as Trial Director, that organizes the evidence and allows you to present the exhibits during the trial. You might want to take a hybrid approach and have the consultant in court for the most important witness, your opening and/or final arguments.

Trial Director can number your exhibits and generate bar codes for quick recall with a bar code reader. You also have the ability to call up any exhibit by number as quickly as it takes to type in the exhibit number. The days of fumbling through a large stack of corkboards in the corner of the courtroom are over.

The necessary equipment includes a laptop computer, a projector and screen or flat panel monitors, smaller flat panel monitors for the witness, judge and counsel, speakers, and routing switches (to allow presentation to the witness, judge and counsel without showing the exhibits for identification to the jury). This equipment can be purchased or rented. The companies that rent the equipment also can install it, test it and remove it for you.

What steps do you take to prepare?

Gather all possible exhibits and have your computer consultant scan them into a program like Trial Director. Do not start scanning until you have all of your exhibits selected and in order.

The exhibits to scan are documents, photographs, diagrams, x-rays, CT scans, MRIs, demonstrative evidence, video depositions and videotapes. Everything, including animations, can be shown through a program like Trial Director. There is no further need for a videotape or DVD player.

Make sure you put all of the exhibits in a notebook, and make hard copies for the court and opposing counsel. All video clips should be given their own exhibit number, placed on separate CDs and put in pouches in the notebooks. This will ensure that you have all of your exhibits ready for any appeal. Put an exhibit list in the front of each notebook and as exhibits are received in evidence, it will be easy to check them off so you and the court have a clear record of what has been received.

Advantages of electronic presentation

The persuasive use of a document. In the usual case, the jury does not get to see the documents the way the witnesses and lawyers do. They are outsiders. In an electronic trial, however, the jury sees everything as it is used. More importantly, the computer allows you to zero in on that key paragraph or phase and lift it right from the page instantaneously. In fact, as you read it with the jury, it can be highlighted or you can produce a second slide that is already highlighted.

Think of how documents are used on television shows like 60 Minutes or Dateline. You never see a dry document. The directors of these shows make these documents come alive so the audience can easily follow them. This dramatically increases your ability to persuade.

Video impeachment. This is very effective. Of course, you need digitized video depositions to do this. Always do video depositions of key witnesses and order an ASCII disk from the court reporter. Whenever you show the jury any video deposition, you should have the video synchronized to the ASCII version so the jury can read along as the witness testifies. This keeps the attention of the jurors.

The best way to do the impeachment is just like you otherwise would, i.e., bracket the areas of the deposition where you expect the witness to move away from his or her testimony. Have these bracketed excerpts ready to go ahead of time with your consultant. He will create video clips with the bar code next to each one of them. Then, once you have heard the witness change his/her testimony in court, do the usual process of commitment and glorification of the deposition and then ask that the video deposition be played after you give page and line. With a little practice, this can be done smoothly and there is nothing better than the drama of having a witness impeach himself or herself on video.

An in-court video consultant can search for impeachment if you do not have it preselected. The disadvantage of this is there can be some delay that can possibly ruin the impeachment. The jurors will get spoiled very quickly, and any delay in the electronic presentation of evidence will seem like an eternity even though it probably would have taken longer to do it in the traditional manner.

Remember that the deposition of an adverse party or that of an officer, director or managing agent of an adverse party can be played for any purpose at trial. (CCP §2025, subd.(u)(2).) You can play bits and pieces of the video deposition at any time you want and it can be very helpful in a long trial to remind the jury about a witness who did not make a good impression. Revive that critical witness to cross-examine the defense experts and to refresh the jurors’ recollection about key portions of deposition testimony.

Demonstrative evidence slides. Instead of writing on pads and a board, consider creating the same thing on a colorful slide that can be shown during the examination of a witness. For example, in the Shropshire case, risk management was a key concept. We created a simple slide that said “Risk Management” at the top. Below that we had a very simple formula that said “H + R = DC.” This formula meant “Hazard + Risk = Dangerous Condition.” We used this over and over again in the case to convey our theme that the city’s aquatic director was not doing his job. We also used this slide with our expert to show how eliminating the hazard and/or reducing the risk can prevent a dangerous condition.

Anatomical diagrams also can be used to support medical testimony. Charts can be used to support the testimony of a vocational rehabilitation expert. You can always create demonstrative evidence that you prepare with your expert, regardless of the testimony subject matter.

Slides to summarize an expert’s opinions. Expert testimony is often confusing and boring. A visual slide of the expert’s opinions is very helpful, especially when dealing with numbers. Consider two to three slides to outline the key opinions of your economist. You may even be able to offer it into evidence (which happened in our case).

Slides for opening statement and final argument. Again, you can convey much more information in a more attractive and persuasive manner by creating slides ahead of time. You can outline the key facts for your opening statement and with it you could weave in photographs, diagrams and videos. One advantage of this: you might not need any notes from which to give your opening statement. You can also get the jury involved visually at the earliest possible moment. It’s common belief that you can win your cases in opening statement, so this is the time to use your visual evidence.

In the final argument in Shropshire, we used many more exhibits than we would otherwise. This included the documents in evidence and slides that we made up for argument only. One powerful type of slide is one that compares the opinions of your expert with that of your opponent’s. You may be able to show that the opponent’s opinions are not that different from yours or you may be able to highlight how unreasonable they are. You are limited only by your imagination and creativity.

Will the court allow it? Do not forget that you need to inform the court of your desire to transform the courtroom. You need to move your equipment into the courtroom at the end of the preceding week. If that is not possible, you have to make other arrangements.

It is wise to discuss this at the Issue Conference with the judge and opposing counsel. The court will provide you with the requirements and can schedule the set up. The court will not allow two sets of equipment, so if your opposition plans to use similar equipment, the cost can be cut in half.


Seeing is believing. You can overcome juror bias with a good visual presentation of the documents and photographs that will help you re-level the playing field. Electronic trials take a lot of planning and they can be expensive, so you have to carefully consider whether your case is an appropriate one. Rest assured, the jurors will appreciate it and once you do an electronic trial, it will be difficult for you to try your next case in the old-fashioned way.