COURT TECHNOLOGY AND TRIAL PRESENTATION

The Court Technology and Trial Presentation Blawg features articles, reviews and news of interest to lawyers and other legal professionals. This blog is published by Ted Brooks, a Trial Presentation and Legal Technology Consultant, Author and Speaker. Ted's trial experience includes the Los Angeles Dodgers McCourt divorce trial (with David Boies), People v. Robert Blake murder trial (with M. Gerald Schwartzbach), and a large number of high profile, high value and complex civil matters.

All materials © 2014 Ted Brooks, unless otherwise indicated.

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Wednesday, July 29, 2009

Best Projectors for Courtroom Trial Presentations

A very informative article was just published on 3LCD vs. DLP projectors, even if it has been published a few times already over the past few years (2001, 2003, 2004, 2005). While the basic technology of the two types of projector remains constant, there have been improvements and changes in the popularity of the two - thus, the updates on the original article. If you're so-inclined and enjoy a lengthy techie read, you will certainly come away with a better understanding of what's out there, how it works and how it is performing in the marketplace. If you'd prefer an executive summary from a trial presentation perspective, read this instead (you will save at least 15-20 billable minutes).

Texas Instruments' DLP technology has invaded the shelves of Costco and other major retailers - both brick and mortar and online. They are relatively inexpensive, so most anyone can justify the cost to own one. Even a solo law firm on a shoe-string budget can now afford to own, rather than rent a projector for trial presentations - or can they?

Without going into exhaustive detail on how the technology works (you can do that by clicking the links above), I will summarize that LCD (liquid crystal display) and DLP (digital light processing) projectors have two very different methods of painting a picture on a screen.

LCD has 3 light-emitting panels, each of which can be at full brightness, or dimmed for darker colors and shadows. The lumens rating is a true indicator of the power of the projector.

DLP, on the other hand, uses a chip to emit the constant white light source, a series of mirrors (one per pixel) and a rotating color wheel, through which the light passes, thus creating the display. The downside of this is that in order to display darker colors, less light (lumens) is displayed on the screen by tilting the mirrors away from the lens. In other words, a DLP projector lumens rating is based on full-on white, and other colors may be as low as 50% of the rated lumens value of the projector. There is also a "flickering" effect which may be visible at times, due to the rotation of the color wheel.

So, which is better for courtroom use? Well, it appears there is more light available from an LCD than a DLP, meaning a brighter picture. This is critical, as most courtrooms are well-lit, many with sunshine flooding the room during the day.

More importantly, a DLP projector produces a very nasty looking highlighting feature when used with TrialDirector or Sanction trial presentation software. It actually appears to be a yellowish-green color - but certainly not the yellow that you will see on your own monitor. In my opinion, DLP is not a good choice for trial presentation, regardless of the price difference.

The projector used in court should typically be a minimum 3000 lumens, LCD technology. There is little benefit to displaying documents and other evidence if it cannot be easily and clearly viewed by the jury. An optional short-throw lens will facilitate placement of the projector nearer to the screen, and out of the way of counsel, making it less likely for you to display documents on your forehead.

While these projectors will run upward of $2000, they can also be rented, and generally the rental costs are shared between parties. Plus, you won't have to worry about lamp-life, spare bulbs, set-up and taping of cables, etc.

www.litigationtech.com

Tuesday, July 21, 2009

Top Ten Tips for Creating Professional Trial Presentations Using PowerPoint

This article was recently published in Technolawyer, a very valuable resource for attorneys, legal techies, technophobes and everyone in between. Please contact me if you'd like a PDF version.


Practice management and technology articles written by experts. July 21, 2009
TechnoFeature: Top Ten Tips for Creating Professional Trial Presentations Using PowerPoint
By Ted Brooks
(This article is a Technolawyer Exclusive.)




Just because you can create a PowerPoint presentation with flying text and
a pink background to accompany your opening and closing arguments
doesn't mean you should. But a professional looking slide show can have a
significant impact. In this TechnoFeature article, trial presentation expert
Ted Brooks offers ten trial presentation creation tips that you and your
team can immediately put to use. Your adversaries will wonder what hit
them. This article contains 1,953 words.

INTRODUCTION
Opening statements and closing arguments are two of the few opportunities
when you can prepare a scripted story in advance, and (hopefully) tell it
without too many distractions or interruptions. Preparing a series of slides
to add the power of visual communication to your case can increase the
level of comprehension and retention of a great deal of information.
For the purposes of this article, I will assume that PowerPoint is the
software used in creating these slides although other options exist (other
presentation software will have similar features).

1. BEGIN BY CREATING AN OUTLINE
Do not get distracted by trying to develop your story with pictures. The
slides you will use do not tell the story — rather they help to clarify the
points you are making. You should initially prepare your outline as though
you had no visual support. The story should stand on its own, and should be
convincing.
Then, you can review the outline, noting any place that might warrant
adding a visual, such as mention of a certain document, a description where
a photo or drawing might help illustrate the point, or even videotaped
testimony of a witness. All of these elements can and should be considered.

2. KEEP IT BASIC
PowerPoint is a wonderful tool — perhaps too wonderful at times. I have
seen some slides and formats used in court more suitable for presenting to a third grade class. Just because the program has a bunch of bells and
whistles (read: fly-ins and fancy background options) doesn't mean you
have to use them. The courtroom is no place for twirling text sailing into
place for the next bullet point, nor do you need to utilize the vast
assortment of design themes included in the program.
Unless you'd like your jury to think you're trying to amuse, entertain, or
otherwise present your evidence in an obviously condescending manner, I
advise making it look like every other professionally-created graphic used in
court. There is a reason they all appear similar in design — simple, clean,
and often with a soft blue background.

3. COLOR CHOICES ARE CRITICAL
When designing graphics, you can easily forget the medium you intend to
use to display the end product. In other words, what you see on your
computer monitor is not necessarily what the jury will see when projected
onto a big screen or on a printed posterboard blow-up in court.
As the case is presented, anything visually distracting, too bright, too dark,
or too difficult to read will have a cumulative effect, eventually resulting in
loss of focus, concentration, and of course retention. While the color white
is the default for most document and graphics programs, it is not the best
color when viewing different types of images. It is much easier on the eyes
to use a darker color, such as gray or blue. You may certainly use other
colors, but the idea is to soften the background so as not to make it more
difficult to view the important part of the slide, be it a document, photo, or
text.

4. USE PROPER FONTS
An often ignored secret in graphic design is the proper choice of a font. A
sans-serif font, such as Arial or Verdana, is best used in non-printed media,
including trial presentation slides. Sans-serif fonts do not have the little tips
(serif) on the letters.
Times New Roman is often used in typed and printed documents, but it is
more difficult to read when projected onto a screen so don't use it in your
slides. Save Times New Roman and other serifs for your motions and
pleadings.

5. DON'T GET CAUGHT IN THE TMI TRAP
While it may be tempting to fit the entire text of a key paragraph on a
single slide, it might result in the text being too small to be legible.
Remember, when designing your slides, you are right in front of your
monitor. Try stepping back 10 or more feet and see how it looks then.
Another problem with too much information (TMI) on one slide is that it
tempts a juror to read ahead, possibly resulting in loss of concentration.
While it could easily merit an article of its own, bullet points are also known
as speaking points — not reading points. In other words, if you choose to show a bullet-point outline to your jury, do not include the entire text —
only the outline topic point. Don't display and then just read to the jurors
the content of the slide showing on the big screen in front of them. Doing so
is boring.

6. RESIZE YOUR IMAGES TO FIT THE SLIDE
It is relatively simple to add photos or documents to your slides. You can
copy and paste them from a file folder, from another program that has an
image showing, or you can use the PowerPoint program menus to insert
any number of different items.
Once you have placed the image on the slide, don't just leave it where and
how it lands by default. If you click on the image, you can then resize it,
move it exactly where you'd like. Depending on the type of image, you may
also be able to lighten or darken it, crop it, and/or otherwise modify it.
A resizing trick: hold down the Shift key while grabbing the corner of the
image, and it will maintain its original shape. In other words, it won't distort
the image into a tall and skinny version of the original.
If the image is too large for the slide, you can drag it or scroll until you can
see a corner, then resize. When dragging an image, if you get near the
corner of the slide, it will tend to "stick" there, helping you align it.

7. ADD VIDEO OR AUDIO CLIPS
As with images, you can resize a video clip as well, using the same
techniques described above. There is no reason to have a tiny video window
playing on a big slide. It is generally a good idea to fill the entire slide with
the video.
As for audio clips, you might have a blank slide, or you might even have the
transcript or text showing as the audio plays. If your audio file displays an
icon on the screen during the presentation, you can simply move it out of
view on the slide layout. It will still play just fine.
One little caveat: Have you ever seen video on a PowerPoint slide that won't
play, even though you can see a still picture of the video clip? The reason
may be that someone has copied or moved the presentation from one
location to another. The program searches for the file, and it's not there.
One way to make sure you include it in a copy is to use PowerPoint's "Pack
and Go" or "Package for CD" feature. This feature will ensure that all
embedded files are included with the presentation.

8. HIGHLIGHTING YOUR TEXT AND DOCUMENTS
Where's the highlighter tool? This is not Microsoft Word, so you will have to
be a little more creative if you want to highlight your documents.
If you've ever seen TrialDirector, you know what it is supposed to look like.
If you've ever seen a slide with pale yellow washed out text that is supposed to be highlighted, you know what it looks like when it's done
wrong (or at least, not as nice as it could be). Many lawyers highlight by
drawing a box around the desired text and then choosing a pale yellow
semi-transparent fill — it really doesn't look very nice.
For text, you have a couple choices. One is to place white text inside a
black background or text frame, and then simply use a yellow font color on
the portion you'd like to highlight. People refer to this method as "reverse
text."
Another way is to type the text into a clear text frame, create a yellow
box(es) in the shape of the text you wish to highlight, and then place it
underneath the text by right-clicking and using the Order, Send Backward
menu commands.
For documents, you are better off doing the highlighting in TrialDirector and
capturing a screenshot, or you might use something like PaperPort. It is a
very helpful program for such tasks.

9. TIMING IS EVERYTHING
Once you've completed your outline and have created all of the desired
graphics to help your jury better understand your message, you should
make a note where each slide should be displayed. Doing so will help you
remember to change each slide at the proper time.
You should rehearse your opening or closing, and use the slides to make
sure everything flows smoothly and makes sense. You might find that you
need some extra visual support in one area, or that you don't really need it
in another. Quickly reading and reviewing your outline is much different
than actually presenting it. You should have an idea how long it will take,
and adjust if necessary.
It is also helpful to do this in front of others, such as in a mock trial or in
front of a jury consultant. If this is not feasible, you might at least present it
to others in your office or family. Attorneys generally know all of the fine
details of their case so well that when explaining it to a jury, they can easily
forget that others do not have the same degree of understanding.
One quick bonus tip: Should you need to make adjustments such as
skipping a section and your notes indicate which slide number is to be
presented, you can type in that number and then hit the Enter key. It will
go directly to that slide, preventing you from flashing through a series of
slides that you no longer want to use.

10. KNOW WHEN TO GET HELP
If you have the time and resources to do all of this yourself, and if it will not
risk the outcome of your case, go for it. Most of these tips are relatively
basic, but like anything else, they can become time-consuming.
If you do not have the time to devote to this type of preparation, or if it is
just something that would divert precious time away from more important responsibilities, you should consider assistance. Someone in your office, an
outside graphics vendor, or trial consultant can tackle the production chores
and can even be present during the trial, following along with a copy of your
outline and advancing the slides for you. This assistance enables you to
focus on connecting with the jury.
Cost is important, but should not impede the best possible representation of
your client. A case worth trying is a case worth presenting properly,
effectively, and efficiently. If that means bringing in some help, so be it.
If you do find that you need assistance, a trial is not the time for bargain-hunting.
Make sure your entire team is trained and experienced, and not
just learning the ropes on your (or your client's) dime.

CONCLUSION
Delivering an opening statement or closing argument without any visual
accompaniment could certainly can confuse or at least fail to impress no
matter how eloquent or good looking you are. On the other hand, over-the-top or excessively flashy presentations could have a negative effect as well.
A safe, but effective, approach is to use designs and colors proven over
time in the courtroom, bearing in mind that the media is not the message.
As long as it looks and feels like it belongs in court, the jury will accept and
appreciate it.

Ted Brooks, President of Litigation-Tech LLC, has written and presented legal technology topics for numerous organizations, including California State Judiciary, U.C. Berkeley, NITA, ABOTA, LawNet, ADC, DRI, ILTA, SFTLA, CAOC, ASTC, American Lawyer Conference, Paralegal SuperConference, plus Bar Associations, Government Agencies, and law firms. He has provided trial technology consulting services in numerous civil and criminal trials. Read another recent related article by this author.

Contact Ted:
tbrooks@litigationtech.com
Copyright 2009 Ted Brooks

About TechnoFeature
Published on Tuesdays, TechnoFeature is a weekly newsletter containing in depth articles written by leading legal technology and practice management experts, many of whom have become "household names" in the legal profession. Most of these articles are TechnoLawyer exclusives, but we also scour regional legal publications for superb articles that you probably missed the first time around. Your friends and colleagues can subscribe here.

Monday, July 20, 2009

Trial Presentation Certification

There has been a recent discussion on a couple of listservs (trialtechnology and legalvideoforum that I'm aware of, and possibly others) regarding Trial Presentation Certification. The problem that I see with that at this point is that it is being offered by the National Court Reporters Association - not exactly the best possible representation of the Trial Consulting profession. In any event, in case you've missed it, here's my reply:

Well, since I've been included amongst the accused here (thanks Robb), I guess I should toss in my two cents as well.
First, I have known Brian Clune for many years, and can confidently tell you that he knows trial presentation. I don't know exactly what his role is in all of this or what the course materials include, however. That's my disclaimer.
As for the idea of a certification, it's not all bad. However, unless it is accepted and/or mandated within the industry, it may have minimal value. I will add that while others may, I would not even consider hiring or referring a trial to anyone who simply had a certificate, had TrialDirector or other software training, and had some mentoring but little or no actual trial experience. I would strongly discourage any of my clients and contacts to hire anyone who's there to learn on their dime. It's all about experience. How do you get it? Possibly by getting hired as a trainee by a large enough company that's willing to train, a law firm, or expanding your current business offerings. Your current clients may or may not support your efforts.
I will also add that in addition to technology, the top Trial Technology Consultants are also well-versed in graphics, visual communication and the legal process itself. The more you bring to the table, the better.
There is a little more riding on your work as a Trial Consultant than whether the video looks and sounds good enough, or is MPEG1 or MPEG2. When you're in court, if you cannot get the right evidence up at the right time, you could be a good candidate not only to be fired, but if you did significant damage contributing to the outcome of the case, you could be sued.
My point is that if you are a court reporter or videographer who has realized there is some money to be made in trial presentation, simply having a certificate(s) isn't going to be enough to make a real difference - but it could be one step in the right direction.
Perhaps it may be an idea that if the NCRA is going to give the course and offer the certification, that it would be more of a court reporter or videographer's specialty certificate of the NCRA, as opposed to attempting to represent that this is a universally recognized certificate? Most trial consultants (that I know) are not members of NCRA. I hope that's some helpful info...

http://www.litigationtech.com

Thursday, July 16, 2009

May-Carmen v. Wal-Mart bicycle trial

I've been reviewing a few of our more significant cases, and think this is certainly worth sharing. Although I primarily use TrialDirector, if a firm has a preference for Sanction, I'll go with that. It worked great for me in this trial.

Wal-Mart successfully defended against powerful emotional appeal with technology and Sanction: May-Carmen v. Wal-Mart bicycle trial
– Marin County, CA , By Colleen O'Donnell
Up against a case rife with emotional appeal and just one night to prepare for trial, consultant Ted Brooks, founder of Litigation Tech LLC, accepted the assignment from a new client to prepare and operate courtroom technology for Wal-Mart’s defense team in a nine-plaintiff product liability suit.
Brooks spent his one pre-trial evening loading digitized evidence into Sanction, including about 20 video depositions, as well as several audio tapes, and hundreds of photos and documents. He also made extensive use of Sanction’s Presentation Folders to help organize the data for each witness.
Plaintiffs’ counsel, in contrast, did not use any technology at all in trial. “If you’re going to swordfight, don’t bring a pocket-knife,” observes Brooks of the opposing team. “We were able to effectively present our case, while the plaintiff searched.”
The plaintiffs used dozens of mounted photos of children averaging between 8 and 12 years old, whose faces were roughed up in bicycle accidents, which they alleged were caused by defective bikes sold by Wal-Mart.
Nine sets of parents had filed suit against Wal-Mart, bike importer Dynacraft and its claims processor. The parents publicized their case with the graphic website: Wal-Mart Stop Hurting Our Kids (SHOK). Their attorney, Mark Webb claimed the accidents were caused by defective quick-release devices, which are intended to secure front wheels to the bike but allow riders to easily remove them for transport. He asked the Marin County jury for $8 million in general damages for the nine families from California and other states, plus punitive damages for the defendants' alleged malice.
"Every child in this case went over the handlebars, landed on his face, and suffered severe injuries," Webb told the 12-member jury. "How do you put a price on quality of life? How do you put a price on a childhood that's been lost?"
Wal-Mart and bicycle manufacturer Dynacraft had hired a high-profile law team of four attorneys, including seasoned Joe B. Harrison of Gardere Wynne Sewell in Dallas, who retained Brooks during the eight-week trial.
The defense put forth that each of the bikes had been tampered with, neglected or improperly handled. Key to the defense were deposition videos and audio tapes. During trial preparation, Brooks created video clips from 20 depositions, as well as audio clips from insurance adjuster audio tapes. Some of the clips were played as absentee witnesses.
“In every instance, our side showed there was negligence involved with the bikes, and either kids or parents not taking measures to ensure the bikes were in working order,”explains Brooks. “We had audio tape of plaintiffs’ interviews with the insurer and we played them to the jury. All audio tapes were digitized and played through Sanction. I used Sanction in dual-screen mode, allowing me to have full access to the database while documents and video were shown to the jury.”
Audio evidence included statements from the injured children such as, “My friend loosened my wheel and said ‘drive home.’” The child did that, then had an accident the next day on the bike.
“Opposing counsel counter-designated what they wanted to play – so, there were many times I had to create clips in the courtroom, just minutes before they were to be displayed in trial. Sanction's Clip Creator made this task very quick and simple,” adds Brooks. “Another valuable feature used was converting the clips to individual files, which could be burned to a CD and submitted to the Court for the record. This was done for each absentee witness.”
Harrison said in his closing argument that there was no scientific proof that Dynacraft quick-release levers are defective. He pointed out that the defendants had attached warning tags to the bikes and sold them with instruction manuals, including directions on how to safely operate the quick-release levers. Harrison criticized the plaintiffs' key expert, metallurgist Robert Neil Anderson, who testified that the Dynacraft bikes Wal-Mart sold were like "ticking time bombs."
He said that Anderson failed to conduct sufficient tests on the bikes to prove a defect and did not study how the accident rates of Dynacraft's bikes compared to others. Harrison also said that the plaintiff's expert did not test the clamping force of Dynacraft's quick-release or conduct tests to confirm his theory that the bikes' soft-suspension system had more vibrational stress than other bikes. He also criticized the plaintiffs for not presenting an accident-reconstruction expert to explain the cause of these accidents.
He concluded that Dynacraft's own expert witness, Gerald Bredding, did extensive tests to prove that the bikes were safe. “We digitized a videotape showing the front suspension on a smooth roller, and then on a roller with bumps welded on which shook the wheels violently, and showed this test to the jury,” says Brooks. “We also showed a test with heavy weights hanging from the wheels. They never came off. Another series of test data was shown to the jury, proving that the clamping force of the Quick Releases was as strong as, and in some cases, even stronger than high-end QR's.”
"Which is better, guesswork or science?" Harrison said to the jury. "Theories are a dime a dozen. Where's the proof? Where's the data?"
A key moment in the trial came as Wal-Mart's defense attorney Rob Phillips was giving his closing argument, and the last thing the jury saw were the words: "Where's the proof?", zoomed in from a graphic, filling seven feet of projection screen in the courtroom, relates Brooks. “As he spoke to the jury, he turned to look at the screen, then realized I had zoomed in on that section, and just smiled. It was very powerful.”
Without technology, plaintiffs relied on the emotional appeal of injured children and dramatic displays such as shaking the bike. “Plaintiffs shook a bike in trial to show that the wheel falls off – but the plaintiffs had removed the brakes for dramatic effect,” explains Brooks. “We shook the bike with the wheel properly tightened and it stayed on.”
Brooks is well-known in the litigation technology community for his work with another trial presentation product, but he really liked Sanction. “Clip Creator is very easy to use and helpful. I used it a lot,” he says. “I also liked the ability to pre-select where to place a given document or photo.”
“I’m not a fan of making trial presentations like a PowerPoint. That’s the advantage of trial presentation software like Sanction. You never know what’s going to happen in trial, and with trial software, you can respond to that. Otherwise you’re stuck in a linear format.” Brooks was moderately familiar with Sanction and had used it before in the past. “Because Sanction is rather well-designed, I was able to drop in and use it easily,” he says.
The jury found against the parents and their attorney. None of the parents won any damages although one set of parents reached a confidential settlement with Wal-Mart and Dynacraft. The decision was 11 to 1 and a retrial is pending.
“Our counsel was extremely happy and pleased with the performance of Sanction in trial. It led to more business for me,” Brooks adds happily. “A couple very highly-regarded attorneys on the team had never before used technology in trial. Thanks to Sanction, I’d be surprised if they ever try another major case without it. Opposing counsel was also impressed by Sanction.”

This article is reprinted with permission from the Tech Edge Insider Vol 2, Issue 7 Verdict Systems, LLC. © 2006
Ted Brooks is the president of Litigation-Tech (www.litigationtech.com)

The Trial Technology Behind Western MacArthur



Litigation-Tech provided the courtroom technology in this precedent-setting litigation

2.2 Billion Reasons to Stay Tuned to Courtroom Technology

In Minority Report, an action-detective thriller set in Washington, D.C. in 2054, actor Tom Cruise plays a police investigator who uses a dazzling array of high tech video gadgetry in a "virtual courtroom" setting to convince satellite-conferenced judges to issue arrest warrants for murderers before they commit their crime. By arresting the criminals before they act, crime is effectively eliminated.

Sound far-fetched? While eliminating the "actus reus" (physical act) element from criminal prosecution is not likely to occur any time soon, the advent of high tech video gadgetry in the civil courtrooms is moving at warp speed and producing some amazing results.

Witness the recent $2.2 billion settlement in Western MacArthur Co., et al. v. U.S.F.&G., et al. The settlement, reached after nearly three months of trial in Alameda County, is one of the largest asbestos-related settlements ever made. Pursuant to the terms of the settlement, St. Paul, the successor by merger to U.S.F.&G., has agreed to pay the $2.2 billion to resolve approximately 20,000 underlying personal injury asbestos cases filed in Alameda County from approximately 1982 through present (and for additional future claims).

Plaintiffs were represented by Faricy & Roen PC, Brobeck, Phleger & Harrison LLP, and Miller, Starr & Regalia. To deal with the massive amounts of discovery and the daunting task of trial presentation, plaintiffs' counsel turned to Legal Technology Consulting and Ted Brooks.

By the time trial started, the courtroom resembled a neighborhood Good Guys store. There were twenty-three 15-inch flat panel monitors (10 in the jury box, 4 at counsel tables, 4 behind counsel tables for supporting counsel and staff, one in the witness box, and one for the judge), with kill switches to disable the jury's view for unadmitted exhibits. In addition, the parties used a 48-inch flat panel plasma display monitor behind the witness stand for reference by witnesses to documents and other evidence. Plaintiffs used Trial Director on InData Trial Server with Medea external RAID drive, which produced total 300 GB drive capacity to present several hundred exhibits, several days of deposition video and other evidence.

"The Judge (the Honorable Bonnie Lewman Sabraw) wanted to see the trial like a movie, to blend plaintiffs' and defendants' evidence in a way that was easily accessible and understandable to the jury," said Brooks, who acted as the technological maestro in the courtroom. "Since the life of the case (12 years) outlasted much of the technology that was used at the outset, it was a challenge to make all of the technology work. But in the end, we succeeded."

The behind-the-scenes "technology statistics" are staggering. They included:
• 10 trial databases (not including several testing, export, import, and case buildup databases)
• 105 GB digitized deposition video
• Combined video runtime: 13 (24 hour) days, 7 hours, 14 minutes, 44 seconds
• Combined deposition excerpt runtime: 2 (24 hour) days, 13 hours, 12 minutes, 53 seconds
• 2322 deposition excerpts (not counting several hundred used for editing purposes)
• 100 videotaped deposition transcripts (not counting many taped but not digitized)
• Nearly 900 demonstrative graphic exhibits
• 15.48 GB document data
• 164204 TIFF images (all parties, not counting hundreds of thousands in case buildup data)

Amy Matthew, a shareholder with Miller, Starr & Regalia and one of the plaintiffs' lead trial lawyers, had nothing but praise for the work performed by Brooks and the technology team. "This was a case of gargantuan proportion," Matthew said. "Our ability to effectively communicate to the jury, to show the jury a mountain of evidence in a format that they could understand and readily assimilate, was one of the keys to this trial. Without our extensive trial databases and the cutting edge technology used to communicate information to the jury, we would not have achieved the tremendous settlement that we did."

So how does one approach what Brooks described as the "Technological Mother of All Cases?" According to Brooks, the key is to work with competent counsel early on, develop a usable database and use an excellent software program, which in this case was Trial Director. "We agreed to keep a standardized system (Trial Director) following a court order that we were to combine plaintiff and defendant deposition video deposition clips, and play them at the same time, more closely resembling a live witness. This resulted in us (plaintiff) presenting approximately 80% or more of the evidence, with very few "hard copy" documents used during the entire trial. With thousands of exhibits on each side of the table, to try to manage the evidence as paper simply would not have worked in any efficient manner. The Court repeatedly complimented the efficient and effective implementation of technology in the courtroom, and noted how the jury was very focused when deposition clips or documents were shown on the monitors."

At the end of the day, the cutting edge technology used in Western MacArthur Co. may not have prevented the alleged wrongs that led to the filing of the lawsuit, but it certainly contributed to capturing a huge settlement.

By Daniel R. Miller and Ted Brooks, Article for the Daily Journal Corp. Verdicts and Settlements

http://www.litigationtech.com

PDF version of Jurors and Technology in Trial article

Just posted a PDF version of the article which was published on the ASTC site, "Jurors and Technology in Trial: What Were Once Vices Are Now Habits."

Covering 3 high-profile trials, this article covers the use of technology, visual communication techniques and graphics in the courtroom.

Actually, the PDF version is a bit more entertaining to read, thanks to the nice layout work by ASTC.

Tuesday, July 14, 2009

Just posted a couple of popular articles

Well, just to help get the ball rolling for this new blog, I've posted two of my most popular articles. If you haven't read them yet, please do. I've had great feedback on both, and they have both been requested and used in CLE programs. While I'm thinking of it, if your firm is interested, I am available to present CLE programs on trial technology at no charge to San Francisco area firms, or for just travel expenses to other areas (trial schedule permitting). Please do keep me in mind, should you need some assistance with your trial presentation.
www.litigationtech.com

Article: Top Five High-Profile Trial Blunders and How to Avoid Them in Your Own Practice

Litigation is challenging. High-profile litigation is doubly challenging. Wouldn't you love a sneak peak into these big trials so you could learn from the trial team's mistakes? In this article, trial and technology consultant Ted Brooks draws on his experience in several high-profile trials to share the top five problems that can arise and steps you can take to prevent them from negatively impacting your own cases. Ted doesn't think you can guess which cases he's referring to — but even if you do, he'll never tell. This article contains 1,130 words.

TechnoFeature: Top Five High-Profile Trial Blunders and How to Avoid Them in Your Own Practice
By Ted Brooks
(This article is a TechnoLawyer Exclusive.)

INTRODUCTION

While some of the tips listed below relate primarily to high-profile matters, a few are also worthy of consideration in preparation for any trial. Some may appear obvious — even to the point that you might doubt they could ever actually occur. I can tell you that I have dealt with every issue I've addressed below during my career as a Trial/Technology Consultant. Also, I have experience in several high-profile cases to draw upon, both criminal and civil. I will not, however, imply, indicate, or attempt to indicate in any way which trial or trials from which each point stems.

So no matter how clever you are, any assumptions you might make as to which one(s) they are related will be wrong — and even if you're right, I'll deny it.

There, got that out of the way.


1. PLAN ON THE WORST-CASE SCENARIO FROM THE OUTSET — DON'T JUST ASSUME IT WILL SETTLE

Okay, this tip probably seems obvious, and unlikely to actually happen in real life, but let me say that it does not always work that way. If it did, I would never have had several "opportunities" to work up a case in a matter of only a few short days — something that should normally take weeks to prepare. In fact, of all the items I will address in this article, this one is the most common.

How does this happen? Well, I think we all try to be optimistic, saving our client precious money whenever possible and practical. Although statistically the majority of cases do indeed settle, all it takes is one little "glitch" on the eve of trial, and you're screwed. One seemingly insignificant misunderstanding, a decimal point in the wrong place, or if you've been following current events, even a plea bargain the Court rejects.

How can you prevent this? Work toward settlement if that is the logical choice, but never assume it's over until it's over. That stated, when it comes to trial preparation, don't wait until the final settlement attempt fails the week before the trial date to get everything in order. This includes all of the demonstratives, trial evidence database, mock trials, and everything else. Although "miracles" may sometimes happen on short-notice, you should not hope to be one of the fortunate few. Rather, prepare several weeks in advance — for larger matters, several months may be preferable.


2. WORK WITH THE BEST AVAILABLE PEOPLE — DON'T TRY TO SAVE A FEW BUCKS

It is interesting that some of the best (and highest billing) law firms in the land would go bargain hunting when looking for trial preparation and litigation support assistance. While in many cases it certainly does make sense, it is probably not the best way to go in high-profile matters. Assuming your client didn't contact you just because you were the cheapest firm around, it might also be assumed that they would appreciate your efforts in securing the best assistance available as well. When viewed in perspective, costs of litigation support, trial preparation, and presentation will be relatively small.

Relatively small? How much does it cost? While I can only offer a general figure for trial preparation and support (as this is primarily what our firm provides), I can say that a "typical" (read: no real such thing as a "typical" trial) one-month trial might end up running in the $70,000 and up neighborhood.

Other oft-neglected items include videotaping of depositions, demonstrative graphics and animations, top expert witnesses, and mock trials or focus groups. Again, it just doesn't make sense in the big picture to provide the high-profile client anything less than the best you can find.


3. MAINTAIN CONTROL OF YOUR CLIENT — DON'T LET THEM MAKE STRATEGIC DECISIONS FOR YOU

I have witnessed more than one client's attempt to take control of what needs to get done, who needs to do it, how witnesses should be handled, and so on. Fortunately, I can also say that most of the attorneys I have worked with have been able to straighten things out and remind the client of their role in the matter.

This is sometimes simple, and sometimes not. It depends on the client(s) and the way they handle the pressure and stress of trial. You should not take the fact that your client has an opinion lightly, but you must also remember that their opinion is probably not the most objective. It may help to bring in a third party at times — someone to help you play "good cop/bad cop." An "objective" opinion from someone other than you can often be helpful in this type of situation.


4. MEDIA COVERAGE — DON'T ASSUME THEY WILL SEE OR REPORT IT YOUR WAY

High-profile trials make for great TV coverage. Interestingly, I have actually heard reports that truly made me wonder if they came from the same courtroom I was in all day. On the other hand, I have heard and read reports that accurately described the proceedings or the intended release of information.

Entire lengthy interviews may be reduced to only a few seconds, offering only a few points of interest. These points of interest may or may not be what you wish to communicate about your case.

If you are involved in high-profile matters, you may know reporters who will work with you to generally attempt to tell the story as you see it. Others may not. Media coverage may be beneficial, or it may be very dangerous. At any rate, it is a risk to some degree — and don't forget that your opponent may wish to have their story told as well.


5. ENJOY THE EXPOSURE, PREPARE FOR NEW BUSINESS — DON'T CHANGE WHO YOU ARE

Assuming a favorable outcome, you and your entire trial team can benefit greatly as a result of your involvement. This can lead to new business, other high-profile matters, and referrals.

Although you may need to make some adjustments to handle an increased flow of work, it is always best to remember your roots. The quality of work and reputation that landed that case should never be compromised or spread so thin as to have a negative impact on your existing or new clients.


CONCLUSION

Regardless of whether you ever have the chance to work on a high-profile matter (hey, there aren't enough for everyone to have them), you can apply each of these tips in some fashion to nearly every case. Again, some might say these are all "no-brainers," but let me remind you in closing that I have experienced and based each one on actual litigation experience.

Finally, if you think that a particular point above relates to a specific case you have in mind, you're wrong ...

Copyright 2007 Ted Brooks. All rights reserved.


ABOUT THE AUTHOR

Ted Brooks is the President of Litigation-Tech LLC , a trial technology consulting firm based in San Francisco. Ted won the Law Technology News Award for Most Innovative Use of Technology in a Trial, and is a frequent speaker and author.

Visit www.litigationtech.com, or telephone (415-291-9900).

Article: Jurors and Technology in Trial

Here's a link to an article on high-profile trial technology and graphics, recently published on ASTC:
http://www.astcweb.org/public/publication/article.cfm/1/21/3/Technology-in-the-High-Profile-Trial

This article covers three high-profile trials, one Civil case for the Plaintiff (Shropshire v. City of Walnut Creek), and two Criminal Defense cases (People v. Robert Blake and People v. Dr. Hootan Roozrokh). Here, we discuss several techniques and methods of getting exhibits into evidence, creating graphics on-the-fly, and visual communication.

Apparently, this (at least last time I heard) was the most popular article published on the ASTC website (www.astcweb.org). Please let me know if you'd like a PDF version of this article.

A comment from one reader:
I recently read an article that you had written, Jurors and Technology in Trial: What Were Once Vices Are Now Habits. It is an excellent piece and with my 10 years of trial experience I can truly say it was one of the best articles that I have read. Your insight is great and I always look forward to reading your work.
Brad Drewett
Litigation Technology Manager
McNees Wallace & Nurick LLC

http://www.litigationtech.com