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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Monday, July 30, 2012

Why You Should NOT Use Technology in Your Trial


This article should help clear the air on some of the most common arguments against the use of technology in trial. Please share your thoughts, opinions and questions in the Comments section at the end of this article.


1.       It Costs Too Much
There are indeed added costs to consider when deciding whether or not to use technology to assist with your evidence presentation. In most cases, cost alone should not be the deciding factor  - especially when it can help in the outcome of the trial. You may request an estimate from any trial presentation firm, or if handling it in-house, have someone figure out how much money needs to be added to the trial budget. Depending on the length of the trial, this might amount to only a few thousand dollars, or can run into the tens of thousands or more.


2.       The Jury Will Think We have deep pockets
It is a fact that your jury notices the difference between boxes and binders, or a projector and screen. But, does it really look more costly? If the jury believes your client has deep pockets to spend on litigation, it is more likely they will attribute these expenses to legal fees of counsel than to how they choose to present their evidence. (Also see Courtroom Projectors, Screens, and Monitors)


3.       Our Client Doesn’t Want It
When a client is against using technology in litigation, there are likely no solid arguments to this. It is often more a lack of knowledge and understanding of the options than actual fact-based opinions. To simply accept your client’s decisions as to how you should try their case could be problematic in this, or any other trial-strategy decision. Clients may need to be reminded that is your duty to do everything you possibly can to help persuade the jury to rule in your favor, and that you are responsible and accountable in that regard.  

4.       I Don’t Know How To Use It
Learning to properly use trial presentation software can take time, and unless you work with it often, you may not be comfortable enough to bring it to trial. If you’re willing to invest a little bit of effort in training and practice, however, you can certainly learn to handle the basics. Additionally, there is no requirement that you personally learn and operate the software. This is something you can have someone else from your firm or an outside professional trial consultant take care of for you, if you prefer, letting you focus on trying your case. (Also see Trial Presentation in Large and Complex Cases)


5.       I’ve Never Used it Before
A large percentage of trials today do not utilize technology, and a large number of attorneys have yet to try it for their trial presentation. While I cannot speak to the qualifications and experiences of others, I can tell you that every attorney I’ve worked with who had never used technology prior to working with me will never go back to the old way of doing things. I will add that as an attorney, you should be able to try your case in the same manner, regardless of whether or not technology is used to present your evidence to the judge and jury. If you don’t feel comfortable operating everything yourself, have someone else do this for you.


6.       It Looks Too Flashy
This argument may have had some validity 20 years ago, when much of this was new, and considered on the cutting edge of litigation. Today, it would be difficult to find a juror who is not familiar with the Internet and other forms of electronic communication. Although trial presentation software is a powerful database application, to the viewer, it looks like little more than a PowerPoint ™ presentation. Again, these days, you’re going to have a tough time finding jurors who are truly “impressed” with the way this all looks. (Also see Top Ten Tips for Creating Professional Trial Presentations Using PowerPoint)


7.       What If it Fails?
It’s really not a question as to whether something will go wrong when you are depending on technology to present your evidence, but when – and then how quickly you can recover, before anyone else even realizes there was even a problem in the first place. You should always have a backup plan in place. This might be a backup laptop, a document camera, or even the hard copy trial exhibits.


8.       The Court May Not Allow It
You should make sure the Court will allow you to present your evidence electronically before trotting in your portable drive-in theater kit. With that, our judicial system is spending a great deal of money equipping our courts with technology at the State and Federal levels. Rather than discouraging the use of technology, you are more likely to find a judge encouraging you to use it – especially if the equipment is already available and provided by the Court. In these “wired” courtrooms, all you need to bring is your laptop or iPad in order to connect to the courtroom system. You should also try to work together with opposing counsel if you will be bringing in your own equipment. (Also see Judiciary Opinions on Technology in Trial)


9    The jury appreciates handling the actual hard-copy exhibits
Jurors can often appreciate the opportunity to hold the actual exhibit in their hands, and they may even view it as “more genuine” than the same exhibit projected on a large screen. In some instances, this can be true. Now if all of the evidence is presented electronically, and then one exhibit is physically handed to the jurors to inspect, that would certainly have a greater impact than passing every exhibit to them. Additionally, post-verdict juror surveys confirm that they appreciate the effort involved and resulting efficiency of using technology in trial – especially when contrasted to opposing counsel who insisted on doing their trial presentation without any technology.


10.   This case is too boring for technology
Some cases may certainly benefit more than others by presenting the evidence electronically. However, document-intensive cases might actually benefit more than those with a number of photos and other visual evidence. Of course, without showing your photos and other demonstratives to the jury, they can only speculate as to what your witness might be describing. But, when “boring” documents such as contracts are displayed, zooming in on a key paragraph and then highlighting the critical language can help bring that exhibit to life in front of your jury.


I would be happy to send you a list of typical trial support and presentation services and equipment, including actual rates and pricing upon request. You may send me an email request using the link at the top of this page.

Your opinions, questions and thoughts are welcome and valued here. Please share yours by posting in Comments box below. Thank you!

13 comments:

  1. an argument against #2 is- the "deep pockets" perception will be pretty much covered when opposing counsel asks your sides experts on their fees, lol. that will most likely DWARF the cost of the trial techs invoice..... When these drs or engineers get on the stand and have to admit that they are charging upwards of $1000+ an hour, then the trial tech costs seem like pennies on the dollar.

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    1. Good point Ed, although jurors will most likely not hear anything about the actual costs of the technology, unless of course opposing counsel tries to make something of it. This may be addressed with a Motion In Limine, if desired. Experts, however, are fair game.

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  2. I find that Technology is what makes me a leader as a NYC Criminal Attorney. It really allows the jury to "SEE" my argument for why my client is not guilty. I will be sure to price out your company for the next case I need technology on.

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    1. It is critical to make sure the jury actually sees the evidence, and when they all see the exact same thing at the same time, it helps counsel stay on point. Passing exhibits to the jury is so tedious that by the time the last one gets it, you're either on to another topic already or you've delayed the proceedings for the rest. Thanks for sharing!

      I have a couple of articles here you might enjoy on high-profile criminal trials - just enter "Jurors and Technology in Trial" or "Blake" in the blog search box.

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  3. What do you think of juries not seeing a court reporter in the courtroom? Don't you believe money is wisely spent on Certified Court Reporters, and the advanced technology they bring? With real time to laptops, computerized exhibits and transcript files, advanced search methods and indexing, a host of benefits, aside from the fact you have a trusted Guardian of the Record.
    Your thoughts?
    Charlene A. Sasso, CSR, RPR
    New York, New Jersey, Nevada
    StenoTech Career Institute
    Fairfield Admissions

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    1. Most jurors are not familiar enough with the court system to know how things work, or to notice/care whether there's a Court Reporter present. The Reporter is there to make a record of the proceedings, but due to government cutbacks, many are being replaced by audio recording technology.

      This would lead to another topic, but I will say that in my experience, dealing with an audio recording during trial is extremely difficult, at best. Unless you have a way to quickly search and review the text, you might as well use the disc as a Frisbee.

      In cases where a Reporter is optional (at extra cost to the parties), I will always recommend bringing one in. Trial is not a game or a place for compromise.

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  4. Recently, I posed as a juror in a large insurance company's mock trials, giving their litigation attorneys some great practice before the real thing occurs.While the use of Power Point was effective and saved time, the attorneys themselves seemed awkward with it. It threw them off their game when they presented their opening statements. They had to stop in order to catch up on the slides they forgot to advance or just lost their train of thought as they looked to the screen. It did prove to be much more valuable when actual evidence was presented.

    Our (the "jury"-which was made up of paralegals and law students)opinion was to ditch the effort on opening statements and use it only to present evidence. And practice, practice, practice with it before using it in trial!

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    1. You make an excellent point, Sharon. That is, attorneys are often better off staying focused on trying the case, rather than navigating a database or highlighting exhibits. There are certainly exceptions, but it usually makes sense to have someone else driving the technology.

      That stated, I'm not sure I agree with your conclusion that it is better to forego visuals during any part of trial - especially Opening and Closing. Rather, it should appear natural and fluid, instead of a cumbersome and clumsy chore. As you've mentioned, practice is key, regardless of your presentation approach.

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    2. This is exactly why attorneys need a paralegal who is familiar with the evidence to be right there at the counsel table with them. The paralegal can run the trial presentation software while at the same time reviewing deposition transcripts for possible impeachment material. The attorney can focus attention on his or her line of questioning, without losing train of thought, and the paralegal can provide all of the technical support so that everything runs smoothly for the jury. The usefulness of well-prepared paralegals cannot be understated.

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    3. In a recent international mediation, as a paralegal, I was brought down specifically to manage the technical aspects of my attorney's needs. From document management, to operating SKYPE to bring in witnesses who were being examined. Although I would consider my attorney fairly tech savy, in order for him to concentrate on the matter at hand, and not all the techincal glitches, I believe I was useful in the process.

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    4. When functioning in the hot seat I tell my (attorney) client that they have spent a lot of time learning their profession, and I have spent a lot of time learning mine. It is their job to present the case, it is my job to make sure the visuals are there to support what they are saying.

      I insist on a script, and then we agree that they probably won't follow it. Not a problem. "It is like we are dancing, you lead. Don't worry, I'll follow."

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  5. Ted,
    I'd never let an attorney client go to court with tech unless he's really comfortable with it. It has to seem gestural, not like a machine that he's operating. Even if he wants to push the buttons in front of the jury, he needs a backup, someone who can fix it or replace its function when it fails.
    I hate to have my clients smell like fear.

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  6. I've used tech in trials (and won't go back to the old method) and I give a lot of CLE Presentations. I've seen plenty of experienced attorneys who can't handle PowerPoint (what 80% of the opening would be on, despite the more sophisticaed software you use during the presentation of evidence). And I'm a 30 year lawyer, so this isn't some 20-somthing looking down at those of us eligible for AARP.
    In 2012, there is no excuse for an attorney who can't RUN a PowerPoint presentation. If you don't know how, learn - it's well worth the time and effort.
    And, just as we all did in the old days, rehearse your opening, with the tech. More than once.

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