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    August 27, 2013 Articles

    You've Come a Long Way, Baby*

    By Gayle Mumm Rossi and Ann T. Greeley

    *But there are still a few more things you need to know about trial technology

    Most seasoned litigators have already heard ad nauseum about the benefits of using presentation technology in the courtroom. It helps decision makers retain information, reduces boredom, and makes the proceedings run more smoothly. But there are still some things you probably don’t know—and what you don’t know can hurt you at trial. If you are already comfortable with the idea of using technology, then you’re halfway there. Even if you are not quite there, you still need this article. Here are three tips for becoming a tech-savvy trial lawyer.

    Beware the “Fully Wired” Courtroom

    Over the past decade, hundreds of courtrooms across the country have been updated and outfitted with screens, projectors, monitors, and ELMOs. As early as 1997, judges were surveyed on their opinions of technology in the courtroom. The results, published in The Third Branch in August 1998, revealed that 80 percent of judges used or planned to use courtroom technology; 72 percent believed presentation technology helped them to understand the testimony better; and 83 percent believed the technology helped them to manage the proceedings better.

    While all the A/V equipment may be state of the art, it may not be installed with the decision maker in mind. One example of this is in the Eastern District of New York, a beautiful, modern courthouse where a particular courtroom was fully wired with a large screen, document camera (aka an ELMO), monitors, and sound system. The court clerk controlled the switcher, the mechanism that allows one side’s images to be displayed. Unfortunately, the screen was mounted across the courtroom toward the top of the high ceiling directly under the lights. As a result, the images on screen were washed out, making whatever was being displayed difficult for the jurors to see. We know that if jurors have to work too hard to follow the evidence, they are likely to stop trying. In addition, the audio system was unpredictable—no one knew whether or not it was going to work, or when it might be fixed. The trial team had prepared many deposition clips as well as the trial exhibits and demonstratives. While the team continued to show their evidence, much of the impact was lost because the jury had to work so hard to see and hear what the trial lawyer was presenting.

    The solution to this problem is to conduct a site survey of the courtroom prior to trial. Your litigation support person or a hired “hot seat” tech can visit the courtroom and sketch the layout, verify the location and number of electrical outlets, and measure the distance between the jury box and where the proposed screen will go. Most importantly, he or she must bring a laptop to test the equipment and sound system. In the example cited above, the lawyers could have asked the court for permission to bring in a supplemental screen as well as speakers to help the audio. Rental costs can be shared among the parties so the expenses aren’t cost prohibitive.

    A Picture Is Worth a Thousand Words

    In addition to having the right equipment set up in the courtroom, another important tool to have in your toolkit is a “capture box.” The “capture box” is about the size of a hard drive and considered a secret weapon used by many savvy trial techs. It allows you to take a snapshot of the opposing party’s evidence as it is being presented in court. This technique can be helpful when the adversary’s expert is on the stand walking through, for example, her damages calculation. You can capture the data being displayed and use it to overlay the “correct” calculation. A series of PowerPoint slides can be quickly created that evening and used in court the next day, or they can be brought up later with your expert, to walk through the errors in the other side's analysis.

    Using the other side’s charts as a starting point allows the jurors to recall what they were told and to see, right before their very eyes, why it is wrong or misleading.

    Under certain circumstances, the “capture box” may be an important tool for the appellate record. We have heard appellate judges note that the trial transcript is typically lacking in what is being modified during the trial. This equipment may provide a pictorial record of what actually happened in court that day.

    Don’t Go It Alone

    While enthusiasm for using technology is a good thing, enthusiasm shouldn’t be mistaken for the ability to use it well. As many trial lawyers become more comfortable with computers and perhaps even making their own PowerPoint slides, the leap to using trial presentation software is a giant one. Often, in an effort to reduce costs, some litigators will delegate the task of “hot seat” operator to an associate or paralegal who is perhaps even less tech savvy than the litigators. This is a mistake. While most people can use a hammer, nail, and saw, it certainly doesn’t mean they can build a house; likewise, being able to use a computer and type on the keyboard doesn’t translate to being a trial tech. A seasoned “hot seat” operator can seamlessly follow the lawyer’s presentation, almost appearing to anticipate their words.

    Pulling up the exhibits and highlighting significant portions is actually the easy part. It’s when things don’t go as planned that problems and stress can happen. For example, during a recent trial, the lawyer was questioning a witness and asked for an exhibit to be pulled up. The paralegal responsible for running the laptop went to type in the exhibit number when the screen suddenly went black. She checked the plug but couldn’t troubleshoot the problem, which was made worse by the dozens of eyes watching her. Fortunately, the judge allowed a brief recess so they could fix the problem; but not all judges are that patient and understanding. After a frantic call, we quickly realized that her laptop had gone into sleep mode, a function our techs automatically turn off when they go to trial. It was a minor technical issue that caused major aggravation.

    Some attorneys prefer to work with the technology themselves because it gives them a greater sense of control. If that is the case, have tech support onsite, but ask for a remote mouse so you can advance the slides at your own pace. The expertise required to access the images and correct any technical problems is beyond what any speaker should expect him or herself to do while trying to communicate effectively in the courtroom.

    Whether you have a tech or not, always have a back-up plan; that is, have an ELMO ready so if the exhibit or demonstrative doesn’t show up on the screen you can do it the “old-fashioned” way and place the hard copy on the ELMO. If you truly are under cost constraints, still hire a trial tech but limit how much time she is on site with you. For example, have the trial tech assist you with developing the database of exhibits and clips to ensure they are prepared and loaded correctly. Then, more importantly, have her attend trial for the opening––like an instructor jumping in tandem with a first-time skydiver. Your opening statement is a crucial element in your persuasion of the jury, so having onsite assistance and expertise takes significant pressure off the designated member of your trial team who will be taking over once the trial tech leaves.

    Conclusion

    We know that it is the message that counts, but that’s only half of it. Using the right technology and having a seasoned trial tech to help you deliver that message is crucial. Avoid falling prey to the myths about the “fully wired” courtroom, the wisdom of using in-house support, and the idea of being able to do it alone. You have come a long way, baby—and using the tips above will help you go even further.

    Keywords: woman advocate, litigation, courtroom, trial, technology, exhibits