May 22, 2018 Top Story

Court Permits PowerPoint Use During Closing

Counsel may close with summary slides, if accurate

By Josephine M. Bahn

Litigators now have another tool at their disposal during closing arguments. A court approved PowerPoint presentations during the closing arguments as a visual aid that accurately reflects testimony given during the trial. The Superior Court of Pennsylvania explained that in proper cases, PowerPoints help a jury understand the evidence, even if counsel had not previously admitted in evidence the slides themselves.

A court approved the use of PowerPoint presentations during closing arguments

A court approved the use of PowerPoint presentations during closing arguments

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The court concluded the party properly used the slides because they correctly depicted the testimony given during the trial. Lawyers considering closing with this tech presentation should scrutinize the truthfulness and accuracy of the PowerPoint slides contents, advise ABA Section of Litigation leaders.

Denial of New Trial Motion Upheld, Even with PowerPoint Introduced During Closing

The Pennsylvania court reiterated, subject to certain limitations, the proper use of PowerPoints during opening and closing arguments. The court reviewed each of the PowerPoint slides at issue and was mindful that any misinformation contained within the slides could prejudice the parties involved in the case. To avoid any misinformation, the opinion shows attorneys must accurately depict the evidence adduced at trial.

Additionally, the court holds where litigators only argue facts in evidence, it is within the trial court's discretion whether to allow PowerPoint presentations. Instead, trial attorneys may use the PowerPoint slides as a visual aid to help the jury understand the facts in evidence. Trial courts may permit the presentations during opening and closing arguments.

Finally, the court also held lawyers can use slides not previously presented to opposing counsel. Since the slides contain only information adduced during the trial, opposing counsel has the entire trial to prepare to dispute the evidence presented.

Lawyers Can Use PowerPoint Slides, But Make It Easy for Courts to Allow Them

Lawyers use visual aids as another method to help juries understand the case presented to them. While certain jurisdictions accept visual aids such as PowerPoints in closing arguments, litigators across the country should know what makes the right PowerPoint slides. "The PowerPoint is merely a visual summation of the evidence," opines Michael R. Lied, cochair of the Section of Litigation's Trial Evidence Committee.

Planning what goes in the presentation and expecting objections ensures success. "Lawyers can file a motion in limine to get a ruling ahead of time," states Lied. Even "if the judge excludes the PowerPoint, make an offer of proof at trial and make sure the PowerPoint is in the record," whether the jury sees it, suggests Lied.

Section leaders warn lawyers in states allowing visual aids to be careful to treat new visual aids or technologies as a tool that applies differently in each circumstance. Like the lawyers in this case, "give the judge as much advance notice as you can, both strategically and practically," says Douglas L. McCoy, cochair of the Trial Practice Committee.

When using PowerPoint presentations during closing, advance notice to the judge lets you "most effectively prepare your closing argument," explains McCoy. If the judge refuses, then you have time to prepare your closing argument without a PowerPoint presentation, McCoy adds.

Lawyers should be flexible toward tendencies that courts may have against visual aids suggests McCoy. He adds, "if necessary and possible as a means for overcoming a judge's initial predisposition against allowing the use of a PowerPoint, offer your PowerPoint for in camera review by the court." Not all jurisdictions permit visual aids, so litigators must be cognizant of the rules in the jurisdictions of their trials.

Visual Aids Must Contain Factual Evidence Adduced at Trial, Otherwise Object

Many, including trial lawyers, now use visual aids such as PowerPoints as mainstream ways to connect with an audience. However, litigators must watch opposing counsel's use of facts in their visual aids to prevent prejudicial information from reaching the jury.

Lawyers must "object when they believe the PowerPoint is misleading in that it inaccurately represents the evidence or testimony admitted at trial," warns Darryl A. Goldberg, cochair of the Criminal Evidence Subcommittee of the Section's Criminal Litigation Committee. You should consider whether the slide is otherwise a "fair representation of the evidence," he states.

Object if the slide "inflames the jury, if intertwined with an inappropriate argument, is misleading in nature, or unfairly prejudices your client in any other way," adds Goldberg. Failing to object could prejudice your clients and let opposing counsel use misinformation during closing arguments, reminds Goldberg.

Visual aids are supplemental help for litigators during closing arguments, so long as the information presented is factual. But, lawyers must promptly object to inaccurate PowerPoint slides, Section leaders caution.

Clients' interests remain paramount when determining whether visual aids can be a help or a harm during closing arguments. McCoy says, "The best time to object was pre-closing arguments as was done in this case." The most effective means of addressing objectionable testimony and evidence are "pre-trial motions in limine to address anything objectionable that the opposition even might try to present to the jury," he concludes.

 

Josephine M. Bahn is a contributing editor for Litigation News.


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