Take Technology to Trial
Brian J. Panish
To prevail at trial, a lawyer must present a simple, understandable case that makes a lasting impression with the jurors. But words are not enough. Studies show jurors remember only 15 percent of what they hear but up to 95 percent of information they see and touch.
Presenting your case with pictures, computer animations, illustrations, story-boards, time lines, graphics, and videotape will help tie together the key pieces of evidence. Using television and computers in the courtroom–the media through which most jurors are used to getting their information–is a persuasive way to get your points across in trial. The following description of available equipment and examples of its use in recent trial experiences show the value of technology in the courtroom.
A trial presentation can involve many forms of technology and graphics, but the starting point is storing your exhibits in a computer database and using a software program to display the documents and a projector to enlarge them. Consider using the following tools with a computer-based method for presenting exhibits.
Laptop or desktop
We prefer to have a laptop at trial. Portable laptops can be used in cafeterias, hotel rooms, and airports–all common locations for reviewing trial exhibits and presentations. The newer laptops have ultra-fast processor speeds, advanced video cards, and large random-access memories (RAM).
You can carry your laptop anywhere, but you should have an external hard drive to allow you to swap large files with other users. For example, you will probably need to upload and download files from a desktop computer in your “war room” or office.
You might consider having a desktop PC in the courtroom because these PCs offer more powerful computing for less money. But these stationary machines do not offer the display flexibility with an LCD projector that laptops do.
Minimum specifications for a laptop to use in the courtroom are:
- Screen: 15 inches will allow others to watch over your shoulder
- Processor: 1 gigahertz (GHz)
- Hard drive: 30 gigabyte (GB)
- RAM: 512 megabytes (MB)
- Network adapter
- Floppy disk drive
- CD drive
- A 6-GB external hard drive with USB2 or firewire connections
You will need a scanner to transfer documents and photographs to your electronic database. You should also have one available at trial to scan documents on site. For example, an opposing expert may bring new documents to court that you want to use in cross-examination, or the expert may say something unexpected. During a recess, you may be able to hunt down a document or article to impeach that testimony. With a scanner, you can scan that information and have it ready to project when the witness returns.
In one recent trial, for example, a defense expert was cross-examined on the boiling point of a type of plastic and claimed he had no knowledge in that area. He did concede that a certain publication was an authoritative treatise. At lunch, we were able to get the publication from the library, scan the page into our database, and show the excerpt to the witness–and the jury–when we returned to court. The expert was forced to admit the document’s accuracy, and the point was illustrated and reinforced to the jury.
The minimum requirements for a scanner are
- Auto document feeder: speed of four pages per minute
- Resolution: 600 dots per inch (dpi), particularly for photographs
- Ports: a USB port to let you connect to other computer equipment
Visual presenters are best thought of as overhead projectors that convey images electronically using a video signal rather than a light shining through a transparency. Visual presenters are best used as a backup display method–when you have an exhibit that has not been scanned into your computer or a physical object that you would like the jury to see up close, such as a cut section of a tire. Depend on a visual presenter for showing documents only when you have purposefully left an exhibit out of your electronic database–for example, a document you might be saving for impeachment.
Having a visual presenter in court can allow unprepared opposing counsel to use exhibits they have not previously scanned or blown up. Another drawback is that presenters can be difficult to focus clearly so jurors can read the document. Projecting documents from your computer creates sharper images and–when combined with an evidence-presentation software program–makes it easier to highlight or extract and emphasize key portions. If you do use a visual presenter, make sure it has an auto-focus feature so you don’t waste time adjusting the visual quality during your witness examination.
Flat screen v. projection screen
In the courtroom, the lower-tech projector and screen wins hands down. On a projection screen, you can view images 300 to 400 times larger than on a flat screen. To provide an adequate screen image for each juror when using flat-screen technology, you must have multiple monitors, and switching from a single viewing source is rife with problems. You create a sports bar effect, where 12 to 16 people are looking in different directions, none of which you control. Even a large, 60-inch plasma monitor, when used alone, proves inadequate for a jury trial. But a flat screen, placed strategically, might help an alternate juror get an unobstructed view in a courtroom with limited space.
Using a large plasma display in tandem with a projection-size screen offers a new, if costly, solution to special requirements. For example, with both types of screens you can show a videotaped deposition on one screen, while simultaneously showing the exhibit the witness is being questioned about on the second screen. Instead of presenting a picture-in-picture video deposition, in which the witness’s image is shrunk into the corner while the exhibit is shown, using two screens allows you to keep projecting a full-size view of both. Jurors can see and read the exhibits while watching the witness testify.
Fan noise and heat vary among projectors, so for courtroom comfort, find one that remains quiet and cool. The recommended specifications for projectors are:
- Screen: 4 feet by 4 feet, minimum
- Resolution: XGA or higher
- Brightness: 100 lumens or higher
- Inputs: 2 RGBs, 1 S-video
- Fan noise: 39 decibels or quieter
Recommended specifications for screen monitors are:
- Screen: 21-inch, minimum
- Resolution: XGA or higher
- Brightness: 1,000 lumens or higher
- Inputs: 2 RGBs, 1 S-video
- Fan noise: 39 decibels or quieter
- Video mute button on the remote–a must if the courtroom has no kill switch
An evidence-presentation program, such as Sanction II or Trial Director, maximizes the efficient and effective use of technology at trial. The available programs are practically interchangeable, but all help you quickly locate and show documents, photographs, and charts to a jury. They allow you to enlarge and annotate exhibits and play video clips easily.
Using these programs, you can project the document as scanned, and you can extract and blow up key portions. You can also highlight or underline while you are questioning a witness about the document, pinpointing the key parts for the jury.
In a recent power-line-contact case, for example, a key factual dispute concerned the visibility of power lines near an avocado tree where the plaintiff had been working. All the photographs taken on the day of the accident had been scanned, and we used the Sanction II evidence-presentation program to display them with various witnesses and experts.
Rather than passing fuzzy, small reprints of photos around the jury box, we could present instant close-ups of key details using the software program and high-resolution scanning–which helped refute the defense arguments concerning how close and visible the power lines were to our client.
Although zooming in and out might look impressive, it can also let your opponent distort the evidence and create misleading impressions. In the same case, for example, while cross-examining the plaintiff’s human-factors expert, the defense attorney zoomed in on a photograph to point out an obscure but significant piece of physical evidence. Fortunately, the expert was quick to point out to the jury that the human eye could not zoom in like the computer and that what the defense attorney was trying to demonstrate would not have been visible to the plaintiff.
Evidence-presentation programs have many similar features, and the costs are comparable, but each program has several unique capabilities. It is most important to buy a program that is easy to use. The minimum technical and operating requirements for these trial programs are:
- Operating system: Windows 95, 98, NT 4.X, 2000, ME, or XP
- Processor: Intel Pentium III or IV, 733 MHz or higher
- RAM: 256 MB
- CD-ROM: 32x
- Available hard-drive space: 6 GB or more; 20 GB for extensive video use
- Display resolution: 1024 x 768
- Display color depth: 32-bit color
- Sound card for audio/video playback
For photographs that will be displayed and oversize trial exhibits, digital cameras can be helpful. In long cases, take digital photographs of each witness and demonstrative exhibit when they appear at trial. Then use the photographs in your closing argument to give the jury a visual reminder. Minimum specifications are
- Resolution: 1 million effective pixels
- Zoom: 37 mm-ill mm (3x) zoom lens
- Storage: Compact flash card or Memory Stick
An organized trial presentation contains photographs, exhibits, and animations that can be put together in a slide show using Microsoft PowerPoint or a similar program. Using a planned presentation–with an outline and ordered exhibits–can aid direct examination of expert witnesses and persuade the jury. The examination flows smoothly, and you are not left scurrying around the courtroom looking for exhibits.
Yet, using a prepared slide show with your expert removes spontaneous moments when your expert can leave the witness box and draw on a board or write on a chart. During a slide show, the courtroom lights will have to be dimmed, and the jurors’ attention will be directed to the screen, not the witness. If you have an expert who is a natural teacher, you may want to cover important points with a pre-planned computer presentation but include pauses for the expert to go to the easel and illustrate certain topics.
For closing argument, a slide-show program allows you to seamlessly combine themes, jury instructions, exhibits, animations, key clips of videotaped testimony, and graphics. You can begin preparing this presentation before trial–even using it in pretrial focus groups–then edit as the trial progresses. By the time you are ready to close, you will have gone over the presentation several times, making its last appearance a well-crafted, interesting, and forceful argument for the jury.
Digitized v. VHS videos
Digital video is a great tool for creating clips no more than three to five minutes long for whenever you need them at trial. They can be used, for example, to impeach the testimony of opposing experts.
But playing an unexpected video clip during trial can also be embarrassing and hurt your credibility. Since court reporters are not infallible, review the clips before-hand. In one case we handled, a witness’s testimony on the video clip differed from the written transcript. Luckily, we had reviewed the clip before playing it at trial and noted the error.
VHS or digital tape is the preferred medium for lengthy video depositions, because playback is crisper and less jerky than video played through a computer. While evidence-management software can be used to play short clips, a digital or VHS tape shown through a television or by projection is the better choice when you have to subject jurors to hours of video evidence.
Another consideration is cost: Most depositions are still recorded on video, although some court-reporting services offer digital images. If you have a lot of videotape, it can be expensive to have it digitized for computer playback.
Keep clarity in mind when you are taking a video deposition. For example, editing can be difficult if the witness and attorney are talking over each other. If you hear a particularly good response from the witness, and there was some kind of interruption or distraction, ask the question again so you have a good sound bite for playback at trial. Also, maintaining a slower pace during the deposition, with sufficient pauses between questions and answers, helps immensely when you edit the tape later. Ask the court reporter to time-stamp and synchronize the written transcript with the video, so that the video editor can easily locate the sections that you want to use in the courtroom.
Avoid playing many hours of videotaped depositions, if possible. Unfortunately, you often must do this to present the evidence at trial. Remember that jurors’ attention span for watching videotapes is usually less than an hour, and do all you can to keep things brief.
Computer graphics and animation
Computer graphics and animation can be used at trial to demonstrate how an accident happened, how an individual was injured, and how a different design of a product would have worked, as well as many other points. You must present these types of demonstrative tools in a manner that allows them to be admitted into evidence.
Lengthy hearings on challenges to a computer animation can be costly and time consuming. If you are unable to establish an animation’s necessary foundation with the expert, the animation may be barred from evidence. Foundational issues can also allow the expert to be badly damaged on cross-examination.
In the power-line-contact case discussed earlier, both the plaintiff and defense experts spent thousands of dollars developing computer animations to help demonstrate the visibility of the power lines and the condition of the avocado tree at the time of the accident. Attempting to re-create those conditions–which had changed significantly afterward–in a computer model of a tree and power lines was a painstaking, and ultimately unsuccessful, process. Neither side used its animations at trial because more questions would have been raised than answered.
With computer animations, the other side will probably ask for the input data and program that your expert used, then attempt to change those data to point out faulty assumptions or logic that your expert relied upon. It can be particularly damaging to have your expert’s carefully prepared animation shown with a few changes or corrections, visually demonstrating that what the expert said happened might not have occurred the way the animation depicted it.
In one case, for example, an expert prepared a computer animation to show the path of a vehicle and the effect of a design modification that would have kept it from rolling over on the road. In the plaintiff expert’s simulation, the modified vehicle slid to a safe stop in the middle of the road. The defense expert took the prepared animation and carried the simulation a bit further down the road–to show the modified vehicle spinning out of control, running off the side of the road, tumbling down an embankment, and rolling over several times before coming to a stop in a field.
When to use technology at trial
Technology can be used in many parts of a trial. When and how to use it is a strategic decision, one that should be mapped out before the trial begins. Choreograph your trial to use all types of technology to your advantage.
Motions in limine. You may not think about using technology for oral argument on pretrial motions. But a computer slide-show presentation can be effective in cases involving extensive pretrial motions in limine. For these fact-driven motions, a short PowerPoint presentation could set forth the statement of the law and tie in the key testimony or exhibit supporting your client’s position.
Organizing this brief outline of the law and the contested evidence will help you focus the argument and present it succinctly. Many judges are first exposed to the facts of a case during pretrial motions. Why not show your trial judge the convincing evidence that the jury will eventually see at trial? It will reinforce the strength of your case and make a lasting impression on the judge, who, like a juror, is going to recall much more of what he or she sees and hears.
Opening statement. Computer-assisted tools, animations, time lines, and video-taped testimony give the jury an overall view of the case. Making an opening statement with a computer slide show–and without notes–can impress jurors with your grasp of the evidence and issues in the case.
However, many judges do not allow lawyers to use demonstrative exhibits or evidence during opening statement, and some courts that do are nevertheless reluctant to permit computer presentations because they appear to be an argument rather than a bare recitation of what the evidence will show.
Direct examination. Organization and preparation are the keys to effective direct examination. Making the direct examination of a witness, particularly a long-winded expert, dynamic and entertaining can be frustrating. But using computer technology to help witnesses illustrate their points can keep testimony moving and hold the jurors’ attention. For example, instead of taking time to write a chart in front of the jury, your expert can incorporate the chart into a PowerPoint presentation so he or she appears both professional and well prepared.
If you do not want to display a whole slide show, a trial-presentation software program lets you easily access exhibits in your computer and highlight only the key portions.
Cross-examination. Cross-examination should be fast-paced and hard-hitting. Having the tools to find and show a key piece of evidence at a critical moment can reinforce your points dramatically.
If you videotaped the witness’s deposition, for example, and have important parts of the testimony and digitized clips stored in your software program, you may be able to impeach a witness on the spot. Jurors can see the manner and appearance of the witness at the deposition, rather than just listening to a transcript. Since a witness’s appearance at trial often differs dramatically from his or her appearance and conduct at a deposition, jurors’ ability to see and hear the difference can help you undermine the witness’s credibility.
Final argument. If you have used technology effectively during trial, the jury will look forward to your final argument, hoping you will pull together all the pieces to assist them in deliberations. Presentation programs can combine the graphics, video clips, and animations you have used in a persuasive argument that walks the jury through the evidence and the law.
Take jurors through the verdict form question by question. Have it scanned in the computer and projected on a screen, then use your software’s graphics tools to actually fill in the boxes and show the jurors step by step what they need to do to find for your client.
Jurors today are accustomed to television and the Internet. They learn and process information using technology. By mastering these new tools and using them in your trials, you can efficiently and persuasively present the evidence that will educate the jury on the rightness of your client’s case.
RELATED ARTICLE: Animate your medical negligence case.
Gary D. Fox
PowerPoint and other computer-generated presentations are becoming common in courtrooms around the country, and computer animation can be particularly effective in medical negligence cases.
Take, for example, a shoulder dystocia case where a brachial plexus injury has occurred because the attending obstetrician placed excessive traction on the baby’s head. A computer animation that depicts the pulling by the obstetrician and, simultaneously, shows a cut-away view of the brachial plexus and the stretching or avulsing of the nerves by traction can very effectively demonstrate the causation of the injury. These exhibits can also have a spillover effect on liability by depicting, for example, the obstetrician applying excessive force to the baby’s head and neck. However, you must ensure that the animation truly and accurately represents the situation as it actually existed at the time of the injury.
Computer animation can be effective in other types of medical cases. For example, in cases claiming failure to diagnose coronary artery disease, animations can show the process of arterial blockage over time and the relative ease with which the blockage could have been relieved by angioplasty or a stent.
In stroke cases, especially where the cause of the stroke is an embolus or the collapse or spasm of a blood vessel, animation can effectively demonstrate the expansion of the area of tissue death resulting from ischemia (lack of blood flow) and hypoxia (lack of oxygen).
The same technique can be used to demonstrate the death of muscle and other soft tissues caused by the failure to timely treat lower-leg compartment syndrome. Computer animation also lets you demonstrate dramatically the swelling that, over time, reduces the flow of blood below the compartment and ultimately kills nerves and muscles. It can also show how easy it would have been to alleviate the syndrome by surgically opening the compartment and decompressing the tissues.
In failure-to-diagnose-cancer cases, computer animation can illustrate the growth and spread of cancer over time. Animation can also help show how the victim’s cancer could have been eradicated with timely diagnosis and treatment.
When considering whether to introduce computer-generated presentations, you should also consider the type of jury that is likely to be impaneled. Jurors in their 30s may be much more receptive to and appreciative of such exhibits than older jurors.
Although computers in the courtroom are becoming more common, not all judges share the same level of sophistication. The judge in your case might need to be educated about the use and admissibility of computer-generated evidence. You should be prepared to research and brief the evidentiary issues that might arise.
The expert witnesses and the computer graphics designer who will be creating the exhibit must communicate during preparation. The expert who will sponsor the exhibit at trial must be prepared to testify that the exhibit is a true and accurate depiction. Involving the expert witness in the creation of the exhibit makes it much easier for him or her to address that issue.
In planning the computer-generated exhibit, you should also consider whether opposing counsel could use the exhibit to their advantage. It can be very embarrassing–and often devastating to a case–if opposing counsel use one of your exhibits repeatedly throughout the trial to establish one of their points.
We sometimes fall in love with our exhibits after spending substantial amounts of time and money on them. Test-drive your evidence in front of focus groups or disinterested parties to ensure that it illustrates the point you are trying to make. If your exhibits do not help to prove or clarify a point, don’t use them, no matter how much time and money you’ve spent on them.
Because of the need to present evidence efficiently and respond to objections, lawyers who want to use computer-generated presentations must be familiar with the computer program and be prepared to make adjustments to the individual slides. Counsel should offer printouts of the slides as evidence and compile copies in notebooks for each juror. Without hard copies for the jury to review during deliberations, the slides could lose their effectiveness because jurors may confuse or forget their content.
With proper planning and preparation, computer-generated exhibits can help make your case a memorable one in the eyes of the jury.
Gary D. Fox is an attorney in Miami.
RELATED ARTICLE: Upgrade your products case with demonstrative evidence.
You should be thinking about demonstrative exhibits almost from the beginning of a products case. Immediately after conducting the initial factual investigation, review the relevant case law for the purpose of drafting two or three special jury instructions. Those instructions will form the legal basis for your proof at trial. Once you have identified your theories, you will understand what you have to prove and you can start looking for ways to use visual exhibits to show how a product defect caused your client’s injury.
Although the evidence in your case might include hundreds of thousands of pieces of paper or dozens of witnesses, most cases will boil down to a relatively small number of important documents, witnesses, and exhibits. In any trial, no matter how complex, there are generally fewer than a dozen important documents, six important witnesses, and probably three important demonstrative exhibits that will become the focal points of your case. Identify these key elements early so you can avoid wasting your time managing unnecessary evidence.
Several excellent software programs can help you organize and present documents and exhibits at a products liability trial. For time-line organization, try CaseMap 3.5, Trial Director, Sanction II, or Summation.
In terms of the exhibits themselves, you will want to have the product, if it can be moved, brought to the courtroom so your experts can explain it and its operation to the jury. If the cause of the product’s failure is difficult to see without enhancement or magnification, you might want to consider using a video camera with a projector. One such system is the Communicator 21 document camera, which allows you to project X-rays, CAT scans, and small objects through a video camera and built-in light board.
Acetate overlays are also effective in demonstrating product failures. Almost any type of drawing can be printed on acetate, or clear plastic, rather than paper. Adobe Illustrator software allows you to draw layer upon layer, so you can show both the product as it worked properly and the defects that led to the product failure.
There are many excellent sources of medical illustrations to demonstrate a plaintiff’s injuries. Medical Legal Art (www.medicallegalart.com) and its companion site, The Doe Report (www.thedoereport.com) offer a variety of ready-made medical illustrations at a fraction of the cost of custom exhibits.
Working with experts
Once you have identified the key issues that you want to support with demonstrative evidence, you should talk to your expert witnesses about the presentation of this information. Consult them early in the case. Competent experts will help you distinguish the cases and issues that have merit from those that will be difficult, if not impossible, to prosecute successfully.
There is even technology that can help you share information with your expert. Several services allow you to create a password-protected online room or folder, including eRoom (www.eroom.com), QuickPlace (www.lotus.com), and NetDocuments (www.netdocuments.com).
An exhibit produced by or in conjunction with an expert is far more likely to be admitted into evidence than one merely offered by counsel. Another way to improve the admissibility of your demonstrative exhibits is to introduce them at the depositions of defense witnesses. If those witnesses accept your exhibit as an accurate reflection of what they saw or remember, it can be admitted, even if it would face challenges under more objective testing.
High-quality exhibits may not only play a role in a favorable summary judgment decision, but could also help deflect motions in limine.
If defense experts quibble about your exhibit, after their depositions you can prepare a second exhibit reflecting their position. You can then contrast the two exhibits to distinguish your positions. Even though the defense experts may focus on one or two small items in the exhibits, they might effectively concede significant aspects of the case by admitting or agreeing to the overall structure or presentation.
Beyond computer-generated enlargements, photographs, schematics, and acetate overlays, many successful trial lawyers now routinely develop PowerPoint presentations for the jury. Unfortunately, PowerPoint can be a double-edged sword, because the defense also uses it. Defense lawyers often have the assistance of sophisticated graphic designers and jury consultants to prepare their PowerPoint presentations, and you must be ready to counter such displays. As the plaintiff lawyer, you can do that by having the best story–the one that is the most consistent and has been established from the outset of your case.
New technologies provide trial lawyers with more effective ways to communicate. Choosing your trial themes and demonstrative exhibits early is the best way to ensure that your story is the one the jury finds the most compelling.
Mark Choate is a lawyer in San Diego. The views expressed in this article are the authors and do not constitute an endorsement of any product by TRIAL or ATLA.
Brian J. Panish and Christine D. Spagnoli are partners with [the Santa Monica, California law firm]. The views expressed in this article are the authors’and do not constitute an endorsement of any product by TRIAL or ATLA.
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