GPSolo Magazine - June 2004
You Ought to Be in Pictures:
Ten Tips for Electronic Trial Presentations
Contrary to what’s portrayed on television, not all lawyers do their work in the courtroom. Trial work is not for everyone and certainly not for the faint of heart. Some lawyers and legal teams specialize in the fine art of motion practice, some master discovery and leave trial presentation for the few whose cases merit and whose clients can afford them being brought to a judge.
At trial is when using the most effective means of communicating a story is vital—a way to put the facts in dispute in the most favorable and memorable light for the judge or jury to accept your client’s position as indisputable. Some of the most powerful tools to help this come about are from the arena of electronic trial presentation technology. Making documents come alive in the courtroom creates a huge advantage if you want them to be remembered. Too many dry witnesses give their dry testimony until the sparks of life disappear from the jurors’ eyes. Instead, firing up the image of a signed document, fully annotated and suitably highlighted and magnified for easy reading on an eight-foot screen just inches away from the jury box, is priceless. Below is a top-ten list of things to do to take advantage of electronic trial presentation when the opportunity arises in one of your cases.
1. Going to trial is like producing a motion picture, except that two versions of the story will be told in the courtroom. Unless you feel prepared to take on the equivalent of producing a Hollywood blockbuster with no previous experience, your first step should be finding a competent producer. Or, in this case, trial consultant. And just as you rarely are set to take a new case to trial two days after you get it, the best trial consultants usually are booked in advance. The more experience, the longer the necessary lead time. Some firms notify reputable consultants as much as a year in advance. Others sign them on when they start working with their experts on the case. In any case, allow enough time to do your research and book ahead. Most experienced consultants are prepared to travel to your location for a case.
2. No matter what you or the consultant may want to do in the courtroom, it is still the judge’s house, and the judge sets the rules for what’s allowed in storytelling. Find out about his or her likes and dislikes by asking colleagues around the courthouse; and here’s yet another reason to be sure to develop a good rapport with the clerk of the court, who will know the guidelines for using technology in the courtroom. The next step involves a visit to the site to establish the best display system for the room. This will yield the cost for what equipment you’ll need to rent—unless the court comes fully equipped, as an increasing number do. If the trial is likely to run more than six to eight weeks, you may want to consider purchasing or leasing at least some of the equipment; however, remember that the owner services and replaces faulty equipment—consider whether you’re willing to absorb that responsibility as well as risk.
3. Videotaped depositions of witness testimony should be prepared as far in advance of trial as possible. And keep in mind whoever’s “law” it is that says if a problem can happen, it will. The good news is that this type of production work no longer must be done far in advance in a video studio. It can be performed on location at the trial setting or war room. Today’s trial technology tools allow the trial consultant to edit the video depositions down to the specific helpful pages and lines (called video clips) you desire for playback in the courtroom. These video clips can then be linked together for continuous playback or used in a targeted fashion for witness impeachment. While waiting until the last minute is not desirable, technology provides flexibility to make those inevitable last-minute changes.
4. Many of the best producers in trial presentation know how to find the right personnel for the task—the “Hollywood” model that brings together the best visual craftsmen to convey your client’s story. The producer can set a “look” for your presentation that will be coordinated throughout presentation to maintain a consistent style, whether for creative demonstratives or documentary exhibits. Photographs, animations, or 3-D models should be completed earlier than the week before the trial so witnesses can practice working with them before and during trial.
5. Involve the trial presentation staff in the witness preparation sessions when possible. Witness prep sessions provide a good opportunity to observe the flow of the evidence and get all the parties on the same page during rehearsals.
6. Test everything. Twice. Every type of technology has a built-in MTBF (mean time between failures). Even if it all works smoothly the first time, always allow another setup or run-through to eliminate any problems that might arise.
7. Avoid single points of failure. One of the most common solutions is redundancy: Have a backup plan for everything. This may include courthouses whose power supplies fail from the added electrical needs to replacement projector bulbs or three-prong adapters.
8. Quality control is essential. Involve the trial presentation personnel as early in the case as possible, even if you can afford only minimal input on the design of the discovery database. It can pay off in smooth running 18 to 24 months down the road at the courtroom. Avoid finding out the night before proceedings that the audio portion of half the video depositions has cell phone bleed-over that renders the testimony just about indecipherable. The same goes for complex graphics or animations—have the expert vet early versions for accuracy, or simply for the quality of resolution when they’re projected on the screen.
9. Don’t overuse the bells and whistles—the trial presentation producer can choose the right tool for the right place. The list of software embellishments is extensive, and many may detract from rather than add to your presentation. The producer has the experience to know which ones best aid the a story.
10. You were all thumbs during your first run-through and little worked as cued? Don’t panic—it’s normal in show biz to have a lousy dress rehearsal. And, because you’re not trying out the trial presentation on Sunday evening for a Monday trial, you have ample time to improve. Listen to your producer, and you will.
Stephen J. Lief is a lawyer and a legal technology consultant; he can be reached at Steve@Lief.com. Don Gibson and Guy Thomas are the founders of The Trial Division, LLC, a consulting service offering trial litigation support for high-tech legal firms; they can be reached at firstname.lastname@example.org.