November 17, 2020 Articles

Using an iPad or Other Tablet During Examinations

Tablets can be highly effective for examining witnesses at trial if you plan, prepare, and practice.

By William Jackson

The world has seen an explosion of technology over the past quarter century, from smartphones to smart watches, tablet computers, videoconferencing, and the immediate access to a wealth of information. The legal world—or at least lawyers’ examination of witnesses in the courtroom—has not kept pace. There are a number of reasons for that failure, ranging from the costs of equipping courtrooms with the newest technology, to judges’ concerns about proceedings being recorded, to lawyers’ fears of technology inhibiting an effective direct or cross-examination. This short article attempts to address the last of those concerns by identifying useful tips for using an iPad or any other tablet during direct or cross-examination to effectively present testimony to the court or a jury. As with any presentation in court, the keys to using an iPad or any other tablet in court are plan, prepare, and practice.

Plan

Organize access to all case files. When presenting a witness on direct examination, cross-examination, or redirect examination, it can be useful to have immediate access to the entire case file and supporting material. This is where using an iPad or other tablet can be particularly useful at trial. Rather than having multiple different binders with documents, pleadings, and deposition transcripts, an iPad can hold the entire case file at your fingertips at the podium, whether that be in a folder or in an application such as Dropbox. It is not sufficient, however, to have the files on the iPad without being able to access them quickly and easily. It is therefore important not just to download the case file and materials you will need but also to organize them in a way that is intuitive to you so you can easily use them while examining or cross-examining a witness. In addition to various folders and subfolders for all case materials, it can be useful to have a single high-level folder containing a handful of the most important exhibits, documents, or deposition excerpts for easy and immediate access.

Plan the examination in detail. Once you have downloaded and organized the materials, you can outline the examination in detail. Regardless of whether you are presenting a witness on direct examination or cross-examining a hostile witness, it is important to have a detailed plan, laid out by topics or themes with specific individual points within each theme. Lawyers all have different approaches to this process, but one particularly useful strategy is, within each topic, to identify the specific building blocks on which you need the witness’s particular testimony. Those building blocks will often be grounded in documents, deposition testimony, or some other evidentiary basis. With an iPad, you can construct those building blocks using actual thumbnail excerpts of the given documents or deposition transcripts inserted directly into the outline itself. You can either maintain the evidentiary support in a separate folder or hyperlink that support from the outline. A number of applications already available provide this function, and additional options are expected as developers and software engineers continue to capitalize on lawyers’ use of iPads and tablets.

Using an iPad can be particularly helpful when presenting the testimony of a technical witness such as an expert or inventor in a patent litigation. Testimony from inventors in patent cases and technical experts is useful because they have knowledge beyond the scope of the typical juror. Unfortunately, that fact also makes the testimony more difficult for the typical juror to understand. Being able to provide a visual representation of the point the witness is making can prove particularly helpful. Often for matters on which there is an army of lawyers, that sort of courtroom presentation is run by a courtroom graphics technician. But, even in those cases, there can be a delay or confusion between the presenting lawyer and the technician, undermining the effectiveness of the presentation. In cases in which courtroom graphics technicians are not warranted or are not cost-effective, there is a premium on the examiner being able to do that without assistance. Traditionally, examiners would use pictures or documents blown up to poster size and mounted on foam-core backing. That approach obviously limits the presentation to a specific set of predetermined static images. Being able to present directly from an iPad at the podium allows the lawyer more effective and immediate control over the images, videos, and other material being presented.

Prepare

Walk through the examination. Once you have an outline of the direct or cross-examination, it is important to walk through it step by step and piece by piece. This part of the process can be underappreciated. Using an iPad during examination is obviously helpful only to the degree it assists the fact finder in understanding and agreeing with the information being presented. There is a risk, however, that using an iPad, or any other technology for that matter, during an examination will cause the jury or fact finder to be focused on the wizardry of the presentation rather than the facts and information being presented. As a result, it is important not to allow the iPad to come between you and the fact finder. One way of preventing that possibility is by repeatedly walking through the outline and modules to be addressed during the examination and simplifying the points such that the words on the document or from the witness are the centerpiece of the presentation. For example, you can prepare a callout in advance, using an image focused on and highlighting particular language, so that when you display the language, the fact finder will be focused on the language of the document rather than on your actions zooming in and highlighting it. Likewise, by preparing in advance a side-by-side image, for example, of the drawing in a patent and an image of a particular real-world product, or of the opposing party’s email concerning risks of a product and an image of those risks coming to pass, you can help focus the fact finder’s attention on the centerpiece of the testimony. Walking through the presentation in detail in advance will help you identify the specific images and elements to be presented from your iPad.

Confirm the available courtroom technology. Having an examination with callouts and deposition excerpts fully prepared on an iPad will not help if you cannot present those materials to the court or the jury. Therefore, you should contact the court clerk or chambers to find out whether the courtroom has video capabilities and whether and how you can connect to the court’s systems. Sometimes that can be done wirelessly within the courtroom. Other times, you will need to connect to wires and cables already in place. It is particularly useful to have handy an inexpensive adapter, such as a Lightning to VGA adapter or USB-C to VGA adapter, as many courtroom video systems use VGA cabling. If the court clerk or chambers permit it, it is worthwhile to test the connection in advance of the hearing or examination.

Practice

Run through. Having outlined and prepared the examination step by step and in detail, you may find it useful to practice running through it in real time. Your direct or cross-examination can be strengthened simply by practicing it. Questions to be asked and images to be shown may seem smooth at the drafting stage but may not come across as such when you are actually presenting them. You may realize that the presentation can be stronger with additional points, building blocks, or images, or that various questions are unnecessary to the end product. In addition, should the direct examination witness need resuscitation on redirect or the cross-examination witness respond in unexpected ways, repeated practice of your presentation gives you greater facility with the material to be shown to the witness and increases your ability to handle unexpected testimony.

Be ready for problems. Notwithstanding all the planning and preparation, things can and will go wrong, whether or not you are using an iPad. You need to be prepared for that eventuality. To the degree the problem is with the testimony and not the technology, it is useful to have backup plans. For example, changing the layout of apps on the iPad so that the apps and folders you may use with the witness are in the dock at the bottom of the screen will make finding and accessing them quicker and easier. That will allow you more quickly to direct the witness back onto more familiar or comfortable territory. Likewise, knowing where particularly important exhibits and testimony excerpts can be found will prevent you from appearing flustered or unprepared when things go awry. To the degree the problem is the technology itself, it can be useful to have backup copies in paper behind counsel table. While those paper copies may never be needed, especially because each generation of iPads, tablets, and apps is improving, it is always safe to have a backup plan should the technology itself fail.

Conclusion

Over time, lawyers will come to realize that using tablets during examinations can be particularly effective in persuading the fact finder. iPads and other tablets provide the examiner a wide breadth of materials to present to the witness and give the examiner the ability to adjust and adapt those materials in real time depending on the witness’s testimony. When effectively used, tablets can be an invaluable tool in a lawyer’s effective direct, cross, and redirect examination toolbox.

Entity:
Topic:

William Jackson

-

William Jackson is a partner at Boies Schiller Flexner LLP in Washington, D.C.

Copyright © 2020, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).