GPSolo Magazine - June 2004
Using Trial Technology When You’re Not in Trial
Trial technology is not something to use just in the courtroom. In my litigation practice I use a combination of different programs and hardware in several major areas including client conferences, responding to written discovery requests, in depositions, and for mediation. Because most cases settle before trial, waiting until you’re in the midst of one means you’ll never have a chance to develop your trial technology skills so you’ll be ready if your case actually goes to trial.
Before you can use trial technology in other areas of practice, you must change some fundamental things. For example, paper files are not much use, so every document in your case file must exist in an electronic format or be scanned into one that is compatible with your software—especially incoming hard-copy documents. Multi-page TIFF images are the standard format used by most litigation support programs, but you can also use PDF files (the standard for e-filing in many jurisdictions). In some cases you may need to create an image from a document you created with your word processing program. If so, see whether you can “print” the document directly to an electronic format so you can skip the scanning and speed up the process. (For a brief description of how to do this, see the article “e-briefs and e-filing are e-z” on page 30 of this issue.)
The First Step
The great thing about trial technology is that it can help you be better organized right from the start. I am a firm believer that litigation files should be organized in some type of litigation support database such as CaseMap, Summation, or similar programs. After I receive a file and my staff organizes and then images the documents, I begin my substantive review during a client conference. We meet in the conference room, where a digital projector and screen let us look at the documents in enlarged form. We can easily view and discuss the documents, and I log the information in the database grid that I’m using on my laptop as we go along. Whether or not the clients know much about computers, we are at this point creating a database about the matter. Clients are pleased by this setup and by the speed with which you can obtain information tracked in your litigation support program; they also appreciate being able to offer assistance with pertinent information. I find I always learn more from the client using this method than by reviewing the files myself.
I do the same thing when it is time to prepare responses to interrogatories or requests for production of documents. Although I can’t explain how or why this works, it seems that displaying rough-draft answers on the large-screen format helps the client think of appropriate responses and provide the necessary information more easily. The ability to reference necessary documents quickly also speeds the process along. Again, the collaborative effort between client and attorney strengthens the relationship.
Putting It to Use
Having built the database and thoroughly reviewed the documents, you are ready to use the same technology at deposition, setting up the conference room with a projector and screen. When I want to discuss an exhibit, I project it onto the screen. I use electronic annotation tools where appropriate to mark the exhibit; when I’m done, I print a color copy on my portable printer to include as part of the record. I find that witnesses are impressed by this process because counsel appears to be thoroughly in control. Projected images, as at trial, have a more powerful impact than photocopies. Drawing witnesses’ attention to the screen also may prompt them to be less focused and enable you to elicit testimony you otherwise might not get.
The same technology is equally impressive at mediation. Many lawyers forgo the introductory session during which each party gives its presentation of the case, figuring it won’t persuade the other side or the mediator at the outset of the process. They’re wrong. Don’t miss the opportunity to use trial technology to your advantage here. You may present something as simple as a PowerPoint demonstration focusing on key points, highlighting a few key documents, or showing compelling photographs as blowups. Or you might gear up and show annotated documents or use some of the PowerPoint special effects, or those in trial presentation programs such as Sanction or TrialDirector. Use this opportunity to influence the mediator as well as your opponent right from the outset. You are guaranteed to get a better result if you come in fully prepared to present your case in a compelling visual way. Give them a taste of what you can do in the informal setting of a mediation, and they may fear the prospect of more to come at trial.
Trial technology can be used effectively in many other day-to-day tasks. There is no limit to creative use of technology. The important thing is not to allow labels to limit your thinking: Just because software has the word “trial” in its name doesn’t mean you can’t employ it effectively elsewhere. If you do things right, you may never have to get to trial.
Bruce A. Olson is a lawyer and a board-certified trial advocate with Davis & Kuelthau, S.C., in Green Bay, Wisconsin. He can be reached at firstname.lastname@example.org.