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| Practice management and technology articles written
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April 26,
2005 |
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Synopsis
During the Robert Blake murder
trial, M. Gerald Schwartzbach and his  defense
team called upon trial and technology consultant Ted Brooks to assist with
the trial presentation. In this article, Ted shares his perspective, and
provides a behind-the-scenes look at this widely-followed celebrity trial.
In particular, he contrasts the trial presentation methods used by the defense
and prosecution. This article contains 1,709 words.
TechnoFeature: Inside Robert Blake's High-Tech Defense
By Ted Brooks tbrooks@litigationtech.com
(This article is a TechnoLawyer Exclusive.)
INTRODUCTION
The Robert Blake murder trial captivated the nation. This article discusses
the technology used by the defense team and how it compared with that used
by the prosecution.
Robert Blake's jury consultant, Lois Heaney (National Jury Project), initially
contacted me to meet with attorney M. Gerald (Gerry) Schwartzbach several
months prior to the trial date to discuss trial presentation and technology.
Lois and I had worked together in the past, and Gerry had never before used
technology in trial.
It helps, particularly in larger matters, to involve a trial technology
consultant early in the process. Doing so can greatly reduce the amount
of duplicative and/or wasted efforts.
THE DATABASES
The defense team had chosen Summation
software as the document database, and had created a second database for
photos. Summation made it easy for the team to efficiently search and review
nearly 40,000 documents and 5,000 photos. The Summation database also included
many transcripts of LAPD interviews, preliminary hearings, and the like.
THE CONVERSION
First, we sent our Summation guru, Reggie Pool, to clean up the database,
identify and correct any technical "issues," and then copy the database.
Reggie worked on several document coding and numbering issues, and then
gathered a full copy. This copy would be used during trial, and also converted
to TrialDirector for
presentation in court.
Normally, a very simple conversion link exists between the two programs.
In this case, there were simply too many inconsistencies to enable a smooth
conversion. To avoid this problem, make sure that all coding fields (i.e.,
Author, Date, etc.) are set up correctly, document numbering formats remain
consistent, and the database itself is designed, developed, and maintained
properly. A database does not know how to forgive human input error — it
simply takes all information and then attempts to organize it.
Because of these issues, we used LoadFile Pro by Image Capture
Engineering to generate the proper files to populate a new TrialDirector
database, which would include all contents of both Summation databases.
By the end of the trial, the new database held over 73,000 combined document
and photo images (pages), plus all of the transcripts.
THE DISCOVERY
Once we gathered all the data and created a new TrialDirector database,
the defense team could search all the document images and photos simultaneously.
All transcripts were included as well, and many were "digitized" to enable
searching of the transcripts and playback of the corresponding video or
audio. Perhaps the most notable use of this technology during the trial
was an edited portion of Robert's 20-20 interview with Barbara Walters,
played during the opening argument, during the trial as an exhibit, and
during the closing argument.
We then conducted a thorough search and review of the photos, using the
capabilities of TrialDirector to quickly review and zoom in on desired items,
annotating and identifying them for quick retrieval. During this process,
we made many important discoveries, including one photo of an LAPD Detective
who didn't even realize he was in the picture — until we zoomed in on him
in front of the jury. Every document page was reviewed, and rotated if necessary
for proper display. Having the two databases combined enables you to search
everything at once.
COURTROOM TECHNOLOGY
Nothing will happen with all of this preparation if the court is not consulted
prior to coming in and setting up your equipment. In this case, as with
most others, we visited the courtroom, and met with the court staff and
Judge Darlene Schempp to learn about previous trials, especially the positive
and negative experiences.
This "scouting" quickly alerted us to a problem that needed attention in
that particular courtroom: the placement of a projector and screen — typically
a small screen and a projector, placed in between counsel and the jurors,
provided by the Los Angeles District Attorney's Office.
The Court decided that we would provide the equipment for both sides of
this trial (this is typical, as only one set of equipment will normally
fit and be allowed by the Judge), so we had to come up with a solution —
with the added conditions that alternate jurors would sit beyond the end
of the jury box, over 25 feet away from the screen, and the courtroom would
fill with media eager to see the evidence.
To ensure visibility, we installed an eight-foot screen against the rear
wall and a 3500 lumen projector with a wide-angle lens, providing space
for us to place the projector very close to the screen. As a result, the
projector stood far enough forward so as not to interfere with counsel as
they addressed the jury, and also gave plenty of screen visibility to the
entire courtroom. Some of the journalists even complimented the setup.
OPENING STATEMENT
Although Mr. Schwartzbach had never before used technology in trial, he
caught on quickly, greatly enhancing his ability to instantly call up exhibits
and keep the jurors engaged. A fair amount of extra preparation and rehearsal
was required, especially for the opening argument. After practicing law
quite successfully for 37 years without technology, he at first found it
a bit uncomfortable to rehearse and go through the added steps to share
his outline and plans, but we quickly established a communication protocol,
which would allow him to speak to the jurors just as he had always done,
but now with the added benefit of visual support.
For those who viewed the opening statements on Court TV, you know that it
lasted about five hours. This was the longest opening statement I've ever
witnessed, but it was very compelling, and I never once noticed any fading
jurors as the story unfolded before them.
The prosecution (Shellie Samuels) chose to run PowerPoint, and had a few
(predictable and common, in my opinion) glitches. The main problem in using
PowerPoint in litigation is its linear format — one slide follows another
until the end. Should you decide to jump to another topic, no easy way exists
to do so. The defense ran with a combination of TrialDirector and PowerPoint,
facilitating immediate random access of anything in the database, from documents
to photos and demonstrative graphics to video.
THE TRIAL
Technology-wise, the trial seemed fairly uneventful. This is not a bad thing
at all — technology is generally only noticeable when it fails. We had plenty
of 16+ hour days, however, getting it all ready for prime-time, and we did
have some problems. Actually, I have never participated in a trial that
didn't have technology problems — the key lies in dealing with those problems
quickly and quietly, so that nobody else even knows.
Small safeguards like having more than one trial presentation computer in
court, having a portable scanner and printer, and making frequent backups
of the database are worth their weight in gold. When it comes to using technology
in trial, the question is not if an issue will arise, but rather when, and
how quickly it can be resolved.
When comparing our (defense) exhibit presentation with that of the prosecution,
we could zoom in on photographs, highlight exhibits on-the-fly, and point
out items to the jury in ways the prosecution could not, as it relied on
hard-copy documents and photos, displayed on an ELMO (document camera).
On several occasions, they searched for several minutes to find an exhibit,
and at times could not find what they needed.
It is also very helpful and valuable to include the daily transcripts in
the database, making the entire set of trial transcripts fully searchable.
We could instantly display exhibits (accessing the database by exhibit number,
barcode, or Bates number), rather than digging through piles of documents
for the right page. There were just over 100 prosecution exhibits admitted,
and well over 300 defense exhibits. It is common, in my experience, thanks
to the sheer efficiency of trial technology, to easily outpace the quantity
of exhibits identified by opposing counsel (not using technology) by 3 to
5 times.
When considering costs, the length of a trial can be significantly shortened
— one reason the courts (and informed clients) encourage its use. Juror
comprehension and retention seem to dramatically improve with visually supported
communication techniques as well — another key reason to consider using
technology in trial.
CLOSING ARGUMENT
Again lasting several hours, many critics and journalists thought that the
jury could not have paid attention to the entire closing argument. I can
tell you, having sat in the courtroom for the entire trial observing the
jury, that they intently listened to every detail and viewed every piece
of evidence.
Once again the prosecution ran PowerPoint slides, and once again it experienced
problems in navigating to the correct slides, which caused a recess at one
point.
The rehearsal for the closing argument flowed very naturally, as did the
argument itself, now having a great deal of trial experience working together
with technology. Often, by the end of the first technology-enhanced trial,
a lawyer will become quite familiar and comfortable with its use.
Also helpful was the fact that during the trial all of the exhibits were
numbered (as exhibits), making it much easier to call them up using only
a few digits, as opposed to typing in a long Bates number or looking for
the correct barcode (which themselves are much faster than digging for hard-copy
documents).
THE VERDICT
The jury has spoken. Regardless of all the "armchair quarterbacking" and
plentiful opinions on how the case should or should not have been tried,
Robert Blake walked out of the Van Nuys courthouse a free man.
CONCLUSION
M. Gerald Schwartzbach and Robert Blake both commented on the use of technology
during this trial, with Robert stating, "This small band of warriors saved
my life." You
can find a brief video excerpt of his statement online.
Participating in this case resulted in a truly great and very educational
experience. Mr. Schwartzbach has completely converted to trial technology.
Despite the fact that L.A. District Attorney Steve Cooley publicly stated
that the jurors were "incredibly stupid" for their verdict of acquittal,
I do believe that justice has prevailed, thanks to the diligent efforts
of Gerry Schwartzbach and his "small band of warriors."
Copyright 2005 Ted Brooks. All rights reserved.
ABOUT THE AUTHOR
Ted Brooks is the President of Litigation-Tech
LLC , a trial technology consulting firm based in San Francisco. Ted
won the Law Technology News Award for Most Innovative Use of Technology
in a Trial, and is a frequent speaker and author. You can contact Ted via
e-mail <tbrooks@litigationtech.com>
or telephone (415-291-9900).
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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
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