GPSOLO June 2009
Trial Presentation Technology
When you think of a lawyer who communicates well, you might automatically think of an exquisitely groomed orator in front of a packed courtroom entrancing everyone with a virtuosic closing argument.
Although this scene can be found in any number of silver-screen masterpieces, the truth is that most of us need some assistance when we’re trying to recreate an accident scene or walk a jury through an intricate medical procedure.
Today’s technology can equalize the playing field when it comes to the effective delivery of information, but the mere mention of technology strikes paralyzing fear into the minds of many litigators. Some immediately discount the use of a laptop and projector in the courtroom as too flamboyant, too “flashy,” or perhaps undistinguished. After all, they reason, if you’re really good at litigating, you shouldn’t need anything but your voice and a well-pressed suit.
The sad truth today is that many clients are denied an effective tool of advocacy because their counsel does not use technology. Everyone knows by now that information is better retained when it is both heard and seen. Speech can be effective on its own, but when a good speech is reinforced with a visual component, the retention rate increases exponentially (unless the PowerPoint slides are boring).
Regardless of your aversion to technology in the court, it has irrefutably borne a major influence on the advocate role in our system of law. It has not modified the purpose of the advocate, but technology has powerfully enhanced the skill set of the litigator for those who are willing to broaden their craft and profession.
The Trials of Technology
When we talk about technology used at trial, one might think only of laptops, projectors, and big white screens splayed across an otherwise wood-paneled, conservative courtroom. But to be effective, technology must be incorporated into a litigation strategy long before anyone steps foot into a courtroom.
Technology shouldn’t just be reserved for the judge or jury. Why don’t litigation teams use the technology tools they have at their disposal for their trial preparation? If juries better retain information provided to them visually, why should it be any different for the litigation team?
During trial preparation, litigation teams should be making full use of software and equipment to help them create timelines, visual presentations, and communicative graphics. This process helps to further embed the knowledge of the case into the minds of the team members, and the exercise of creating the exhibits enhances confidence in their arguments.
For example, I routinely advise litigation teams to set up a projector and screen in the war room that they are using for trial prep. This provides the ability for any team members to hook up a laptop and show their work to the whole team for comments. A “practice” setup like this has the added benefit of allowing the team to test the projector equipment and make necessary adjustments, which will greatly lower the logistical anxiety on the day of trial.
By the time that trial preparation has begun, the team has presumably been using some document database application such as CT Summation ( www.ctsummation.com) or Concordance ( http://law.lexisnexis.com/concordance). The team may have also been using an application such as CaseMap ( www.casesoft.com) to track key players and a chronology of the facts.
Before trial, the facts of a case can seem convoluted. It is therefore a tremendous exercise in clarity for team members to map out key components of the chronology through timeline applications such TimeMap ( www.casesoft.com) or TimelineXpress ( www.indatacorp.com). A simple timeline can do wonders for helping team members concretely establish dates and times. Gaps are immediately apparent, and the discrepancies can be fixed long before they may be revealed—embarrassingly—during trial.
Creating a Microsoft PowerPoint presentation ( www.microsoft.com) can also be incredibly beneficial for the litigator who is responsible for the opening or closing argument, not because PowerPoint should always be used in an opening argument, but because PowerPoint forces one to distill a conflagration of points down to a few targeted bullets. I regularly observe litigators who spend hours and hours on a PowerPoint presentation and never use it during their time at the podium; the exercise of creating the visual component of PowerPoint helped them to distill their presentation to the relevant points.
Proving the Point
What more proof do we need that technology is an incredibly effective medium of communication in the courtroom? Aside from the plethora of studies and reports that testify to the effectiveness of a visual presentation, simply consider the ways we receive and process information in today’s world. Television has been a predominant influence on everyone for the last few decades. If you notice, shows have evolved into more action and quicker-moving plots.
Even though books have been our traditional method of delivering information, you’ll notice shorter chapters and easily digestible chunks of information in contemporary books.
The Internet is quickly becoming our primary method of information processing. This frenzied environment of clicks and links and videos and graphics pulls us in every direction imaginable. No one stays on one page too long—the goal is to intake as much information as possible in the shortest amount of time before moving on to a video of kittens playing a piano or a visit to Facebook.
Into this frenzied mix of information gathering comes the respectable and distinguished profession of law. When we attempt to provide information on paper through a lengthy, drawn-out, insufferable testimony, we fail to adequately compete in the juror’s world. And while our profession enjoys a certain responsibility to rise above the din of entertainment and salaciousness, we still have a duty to convey our client’s story, and we cannot do this adequately in today’s world without the proper tools and understanding of technology.
Digital Document Dundering
One area where technology can aid you in trial is in the projection of documents on a screen. This is not to say that digital documents should completely replace the bulky binders, nor should you be without a paper copy of your exhibit—even in today’s world, those pieces of paper are still considered the “official” exhibit and may need to be referenced during the proceedings.
But when you’re trying to direct the attention of the court to one little section in a multi-page document, it is many times more effective to use a trial presentation application such as Sanction ( www.sanction.com) or TrialDirector ( www.indatacorp.com) to zoom in on the section, blow it up large, and then maybe even highlight appropriate sentences for added effect. This not only expedites the process of literally “getting everyone on the same page,” it also ensures that the judge and jury are not reading other sections of the document with their minds wandering.
Similarly, when presenting a timeline of events to the court, you should not necessarily abandon the analog entirely for the digital. Technology offers many advantages when you initially introduce the timeline because you don’t want to show the entire graphic at once. If you do, your audience will read ahead and pay scant attention to your direction. An electronic timeline on a computer puts you in control of a judge or jury’s attention. A timeline created in TimeMap, for example, can be exported to PowerPoint, where each individual box or event can be displayed one at a time, allowing the lawyer or witness to expound upon the facts of that particular event.
But once you’re done walking through the electronic timeline and move on to you next graphic, the electronic timeline is gone from view. If the timeline is crucial, it is a good idea to have the entire timeline printed onto an old-fashioned foam board or something similar so that it can be left in the courtroom on an easel as long as allowed. The big physical timeline can provide context for subsequent witnesses. This is a good example of the digital and analog worlds cooperating: Introduce the timeline through PowerPoint, then leave it on a big board for later reference.
In the visual realm, a picture may say a thousand words, but a video can say a million words . . . and actually have the person saying them on the screen.
There should be no disputing the argument that watching a video is many times more effective than reading text off a piece of paper. If you’re attempting to impeach a witness, you could simply read back the contradictory statements that they made during a deposition. But if you can actually show a video of the same witness making the contradictory statements, including how they dressed that day, their revelatory body language, the long pause before answering, the hand-wringing, and the potential sweating, there’s usually not much more for you to say—the video does your job for you.
Video is an amazing medium that is terribly underused in the world of law. Lawyers routinely arrange for a conference room and a court reporter when they are taking a deposition, but they rarely consider videotaping the proceedings. Granted, the video element adds an additional cost (although an increasingly minimal one) to the deposition, but having the video provides an incredible tool when going over testimony in court. You could hand a witness a paper copy of their deposition transcript and ask them to read what they had said, but you know they will never read the printed word the same way they answered in the deposition. Having the video clip is so much more accurate, and it packs a whopper of a punch when the jury can see the witness’s nonverbal cues such as a sigh, a hesitation, or general disgust.
In-House or Out-Source?
Technology can’t communicate for you, however; it is only meant to provide some effective tools to support your arguments. If you have trouble speaking in front of the courtroom or plan to use technology just because you can, then the use of technology will probably hurt you more than help.
I always make the point that trial technology doesn’t have to be fancy. If you simply use a laptop, projector, and screen to show documents, that may be sufficient. It will certainly move the proceedings along much quicker than if you had to pause every time you needed to pull multiple copies of an exhibit and hand them out. If everyone can just look at the screen, you can put the document there, and while you have their attention, simply zoom in on the paragraph where you want everyone to focus.
Can you do trial technology on your own? The easy answer is yes, but as with everything else, it is usually advantageous to consult with a professional. You may simply want to hand over the technical responsibilities to someone else, which is fine, but make sure you understand the basics of the system so that you know how to use it effectively.
Most trial technologists are not shy about sharing their knowledge. All you have to do is ask a question, and they will be happy to show you how instead of simply doing it for you. When it comes to sophisticated multi-monitor hookups, video amplifiers, or graphic resolution manipulation, you would be wise to seek some help for what you want to accomplish.
Brett Burney is principal of Burney Consultants LLC ( www.burneyconsultants.com) and focuses his time on bridging the chasm between the legal and technology frontiers of e-discovery. He also provides skilled trial technology support to a wide range of clients. You may e-mail him at email@example.com.