Technology in the Modern Trial
We have finally arrived! After many years of resistance, cost limitations, and other problems, technology in the courtroom appears to be here to stay. The use of trial presentation and other technology in trial is rapidly becoming the norm, not the exception. Everyone seems to be talking about it and considering its use in trial. Articles (like this one) seem to pop up everywhere. Technology vendors are providing seminars on the benefits of trial presentation technology regularly.
More and more courtrooms are being configured and hard wired for computer and other technology use. Even law firms are purchasing both the software and hardware to present their evidence in trial digitally. Those who do not wish to purchase the technology and hire in-house consultants must search for the right consultant to help them with the “modern trial”. Finding and utilizing the right combination of technology for each particular trial is critical.
Clearly, technology can help win cases! It can make an attorney look much more prepared, organized and knowledgeable. If done correctly, trial attorneys may appear more credible, organized and knowledgeable to the jury (based upon many post trial juror interviews). It is well documented that trial attorneys need to maintain credibility with the jury and strive to be the “truth giver.” In short, 2 technology can be an incredibly powerful tool to emphasize key evidence and present a case in winning fashion. But, if not used carefully and correctly, it can result in the opposite.
What Technology in the Courtroom is Not Designed To Do
First, technology itself is not “the be all end all.” It will not transform an inexperienced or unprepared trial lawyer into a seasoned and successful trial lawyer. Under no circumstances will it ever replace the time, effort, passion and hard work required to win trials (in fact, it almost always demands more time of the trial lawyer to properly implement its use in the trial arsenal). Every good trial lawyer must still be thoroughly prepared, focused, organized, articulate, and capable of thinking and reacting on their feet.
Also, technology cannot replace the need to weave a solid case theme into the entire trial (much harder than it seems). The trial lawyer must still be a compelling “story teller” and able to persuade through courtroom presence and speaking skills. Most important, trial lawyers and their technology still has to be able to adapt to changes in trial as no trial ever goes exactly as planned. I have learned to “expect the unexpected.”
What is Trial Technology and What is Designed To Do?
For the technologically challenged (myself a number of years back), it typically consists of a laptop or two in the courtroom, a projector, a projector screen, a PC, and a great deal of cables, extension cords, hubs and switches. Software is also needed to get the images (evidence) from the computer to the projector and then up on the screen as big as day for the “jurors to see and understand better” (translated as “emphasize really good points for my case”).
Depending upon the type of technology being used, it can also include scanners, digital cameras, color printers, copiers, additional stand alone PC’s, and full time “technology operators” to name a few things.
Simply put, trial presentation technology is designed to provide the jurors with evidence (demonstrative & actual) that is graphically appealing, organized, and easy to digest and understand. It provides the ability to highlight portions of key documents, compare documents side by side on the big screen, display photo blow ups and present video easily in short clips where appropriate in the trial. You can even take a “we just found this document”, scan it, and put it up on the screen while a witness is still testifying. It will also give the trial lawyers immediate access to thousands, if not millions, of documents or evidentiary items, through a few clicks of the mouse. This is through the use of a document database, which stores every trial exhibit. If scanned and stored with the used of OCR (Optical Character Recognition), the contents of all exhibits can be word searched. If not OCR’d, the retrieval process is accomplished by the description process.
For example, if technology like a PowerPointTM presentation is used in an opening statement, it can graphically and colorfully provide a cohesive, organized and well thought out presentation of the case. Your presentation will be organized (because you had to prepare it ahead of time). You can insert photos, video and highlighted documents (if allowed by the Court). You can list the key issues of the case and hope the jurors do to so that they view the trial through your outline.
Technology can be limited to use in just the opening and closing. Or, it can be used throughout the trial in a completely paperless digital environment and any combination in between. The system can be implemented with just one software program or a combination of many depending upon the trial attorney, amount in dispute, type of case and the case budget. The overall goal is to effectively use technology along with typical trial techniques to win trials.
Use of Technology in Trial
Technology is used in virtually all aspects of trial, except Voire Dire. The benefits are well documented. It is universally accepted that jurors (and all “listeners”) better retain approximately 50% to 70% of information conveyed visually as opposed to audibly (especially the Generation X/ MTV crowd). This number increases to almost 80% if the information is conveyed visually and audibly at the same time.
However, I cannot emphasize enough that overuse can be counter productive and sometimes disastrous to your case. Additionally, once the use of trial presentation technology been decided upon, many other factors must be considered and addressed. These Factors range from size of the courtroom, to type of case, to each particular Judge’s requirements and/or restrictions. Let’s look at the trial process: 4 Technology should supplement not replace boards, timelines, etc.
Evidence on the big screen has limits. Typically, the jurors do not view it as long as they would a huge timeline board or photo blow up. Technology should be alternated with key boards or timelines (where you want repetitious viewing by the jury) and other physical or demonstrative evidence. Like many other things in this world, too much of a good thing can be bad. This certainly applies to technology in trial. One tried and true way to ensure this variety is a very large (and accurate) timeline board. Use it in opening, with appropriate witnesses, and keep it in view of jury as much and as often as possible.
Along with Closing Argument, this is probably the most popular part of the trial for use of technology. A graphic opening statement can be created to provide structure, impact, organization, “eye candy”, or preview some key evidence (or negative evidence to diffuse an issue). It provides an easy transition between outline (“the evidence will show”) type issues, to photos, to video or to key documents. It can also assist a lawyer in avoiding the use of notes, providing more opportunity for critical eye contact with the jurors. The presentation becomes the attorney’s outline!
This area is also quite often the most dicey, however, often requiring last minute revisions. There will, of course, be objections such as “argumentative,” the item “may not come into evidence,” or my personal favorite, “it will make them look more prepared than us, thus prejudicing our case.” Be prepared to make in court revisions “on the fly.” When preparing the opening, try to stay close to an outline of your “story”, key issues or, if you must, “the evidence will show” type of presentation. Keep any borderline “argument” out of the presentation and ad lib during your opening to avoid these kinds of objections. Unfortunately, there are no hard and fast rules on content. All judges are different. What one will allow, another will not. There are no guarantees what will be allowed. Understand the local and other rules on use of demonstrative or actual evidence in opening statement. That is why this particular area requires more preparation and readiness for drastic change. For instance, one Judge ruled “no documents whatsoever” can be presented in opening. Another would not allow a MapQuest of the scene, but would allow an identical graphic illustration.
Videos have been allowed many times (both evidentiary and demonstrative) although this would seem to be an area where the trial attorney would experience the most resistance. Regardless, a remote control operated, seamless opening statement with photos, video clips, outline text and documents is powerful and persuasive (in one case described by an observer as “shock and awe”).
More frequently, expert witnesses are being examined alongside a PowerPoint presentation of the exam outline. This can be very powerful and ensure a logical, organized and graphically interesting presentation of what otherwise could be very dry and boring (a geotechnical engineer for instance).
Important photos or charts can be authenticated by a witness, moved into evidence, put up on the screen and then highlighted, blown up, or compared side to side with other evidence on the screen. This can be some of the most devastating testimony in the trial. Imagine the big impeachment set up. The trial testimony contrary to an interrogatory response or response to request for admission is elicited. After the in-court testimony, and if allowed, you read the impeachment interrogatory off of the screen and then show the signature under the penalty of perjury. While you are doing the reading, your consultant is highlighting the testimony as you read and then saves that image to put into your closing argument.
Closings Argument & Jury Instructions
This is where the most creativity is needed and impact can be achieved. The closing must not be all technology. The trial attorney must bond with the jurors with persuasive communication and eye contact. Tangible evidence or demonstrative evidence should also be used. The closing should be a variety of evidentiary props to keep the jurors’ attention focused on the attorney, not the screen. The technology should be used. Replay helpful video, show key clips of helpful videotape depositions, a slideshow type viewing of powerful photos with no verbal editing (letting the image convey the powerful message). Remember, you want the jurors to come to your conclusion, not tell them how to do their job.
Lessons learned the hard way
The use of technology in the courtroom is clearly invaluable. Post trial juror interviews have proven this time and again. More and more, we are being told that jurors even expect the use of the latest technology in this technology savvy society we live in now. Rarely, if ever, do they attribute high tech to “deep pockets” or big time plaintiff” smoke and mirrors.” With that said, how can we effectively use technology to help us win trials?
Don’t Run the Technology Yourself
A trial lawyer has to be focused and almost tunnel visioned in trial. There are dozens of issues running through their minds at all times in trial. They need to “lock onto” an adverse witness for cross exam. Openings & closings need to be memorized. Don’t make the mistake of trying to operate the technology yourself. Even if you are Bill Gates, it takes time and attention away from your central duties of winning the trial. It diverts your valuable “focus” for even a few seconds. It lessens your ability to gauge juror reactions. Every experienced trial attorney knows that changes will be made on the fly depending upon how a witness may testify. The examining attorney cannot then go search for that key document or photo. Use a technologically skilled paralegal or trial consultant to worry about the technology, while you focus on the examination.
Prepare for the Unexpected
As we all know from experience, the unexpected will happen in trial even when using pen and pencil and, perhaps, a bit of butcher paper. Now consider additional potential unexpected occurrences in trial with the added element of technology. Be prepared. Have a back up plan. For instance, if feasible, have each slide of your Opening statement printed in color and have a document camera (“ELMO”) available in case of computer failure. Prepare to handle each part of the trial, if a catastrophic computer failure occurred. If possibly, try to have complete redundancy of your technological equipment & software. Many trial consultants now provide this as part of the overall costs, which will put the trial attorney more at ease.
Don’t assume that a set up at the office will work in court. Set everything up ahead of time and test it in court. That way, problems should not occur in front of the judge and jury. There is nothing more frustrating to judges and juries than delays caused by technology issues. Some judges just won’t allow any delay so, if a problem occurs, the attorney is merely ordered to “move on without it.”
Video Tape Depositions and Evidence
Video is without a doubt one of the most powerful, interesting and effective way to present some types of evidence. There is nothing better than an adverse witness testifying to “A” and then playing a video taped deposition clip where the same witness testifies to “B.” Juries (and judges for that matter) love video. It breaks up the monotony of a trial. It is dynamic and captivates their attention. You have them at full attention so use this time wisely. The power of video is almost always worth the investment.
Video in trial is also one of the most difficult areas for trial attorneys and their technology consultants. First, there is the time and cost of editing video. Once that big issue is handled, there are many other issues to address for a video presentation in court to go well. Typically, there are now new audio issues. If it is a video deposition, does the attorney want the text of the testimony to scroll along the bottom of the video in sync? The size of the video (projected onto the screen) is also important and requires attention. As the video size is increased, typically the video quality is decreased. Quality will vary greatly depending upon the particular type of video, how it was captured, the quality of the original footage and how well video tape (as opposed to digital video) is digitized.
1.) Always arrive early and have technology ready to go:
Judges and juries do not like to wait on counsel. This is especially true if counsel is fumbling with computer equipment. It is wise, therefore, to try to get into the courtroom early every day. Also, try to set up your technology before the trial begins, preferably when the court is dark. Judges and juries will appreciate this preparation. If you are experiencing any problems when court resumes, try to move onto something else to avoid any waiting time.
2.) Cost Sharing Arrangements:
Depending upon the size of the case, relationship of the adverse attorneys, and client willingness, it is often economically beneficial to try to work out a cost sharing arrangement with all parties to use one set of equipment. If all exhibits are going to be scanned, try to get everyone to go in equally on this cost. The Court will appreciate the cooperation amongst attorneys. The transition between attorneys will be quicker and the trial will inevitably be shorter.
Of course there are strategy reasons not to share or even inquire. If an attorney thinks the other side will not be using technology, they often set everything up on their own hoping to have a much more effective and persuasive presentation of their case.
Trial Consultants and Choosing the Right One!
Trial consultants come in all shapes and sizes. They can certainly be a welcome addition to the trial team in the “heat of battle”. Depending upon the trial attorney’s needs, different backgrounds may be more suitable. My experience has shown that there are three basic types of “Trial Consultants” (if there are more and you are reading this article, no offense is intended). All three types have excellent skill to assist trial lawyers. Some companies have all three, while others are more specialized. The point is in understanding these backgrounds before hiring a trial consultant.
1.) Jury Research Background:
Trial consultants with a jury research background (typically PhD’s) are excellent in assisting with case themes, types of jurors needed, or witness preparation. Their training is in social behavior or statistics or other related disciplines. Their technology skills should be evaluated closely depending upon the case.
2.) Technology and Software Background:
This group puts the “high” in “tech”. They can do magic with a computer, graphics software and virtually every other gadget ever needed or used in the courtroom. If the trial lawyer knows exactly what they want, this may be the best fit. These “Trial Consultants” can perform all the daily computer operations and the presentations as well. They will typically be very experienced with video and editing capabilities. This group typically will not be able to help much with potential jurors, themes or trial strategies.
3.) Trial Attorney Background:
The third group thinks they can do it all (just kidding). They may have experience with jury selection, but typically not the behavioral training of the “jury research” type consultant. They should have all the basic technology skills of group number two, but may not be able to handle the high end tech issues (debugging, hardware repair, video editing and digitizing). They will, however, be able to provide invaluable insight as a fellow trial attorney and act as a good sounding board. They, like group one, should be able to help formulate themes and case strategy. They often times can also become part of the trial team if needed.
First impressions count and, as they say, “perception is reality”. The use of multimedia and trial technology along with boards, timelines and other physical evidence gives the trial attorney the tools to make a splash in opening. This is the first impression (after jury selection of course). The ability to then continue this interesting, compelling and high retention form of presenting a case in trial can be a powerful and winning combination. Further, if the case has extensive documentation, then a digital database for immediate retrieval and presentation can be a life saver. Pulling everything together for a continuously seamless “shock & awe” trial takes time and effort, but the results speak for themselves!
There is a great deal of technology out there and the decisions can be overwhelming. The key is to investigate your needs and options early and begin implementation and preparation far in advance of the trial.
If you need assistance with any area of Business Law, contact the experts at Brown & Charbonneau, LLP for a consultation: 714-505-3000