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.

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
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.

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

WAR ROOM CUISINE
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.

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

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