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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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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.
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.
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