FREE (my favorite flavor) CLE: Trial Technology & Visual Communication

Between computer disasters (yes, I have them too), I've been working on several articles (coming soon), and have a new free CLE program ready, entitled "Trial Technology and Visual Communication." Schedule permitting, I am available to present this to SF Bay Area law firms and other law-related organizations at no charge. A sales pitch is not in keeping with CLE credit, and I will not attempt to take work from in-house litigation support - although I'd be happy to assist when help is needed. Contact me directly (tbrooks@litigationtech.com or 415-291-9900) if you would like additional info. Here are a few preview slides:

 

Edward Tufte: The Godfather of Information Graphics

In a recent post by Matt Shipman, "Chart junk? How pictures may help make graphs better", he states, "Some experts describe these graphic embellishments as "chart junk," which they argue detracts from a graph or chart's effectiveness."


The "expert" he is referring to is none other than Edward Tufte, as that is one of his favorite and most-quoted terms.


Having been one of the fortunate ones who have had the opportunity to attend Tufte's seminars and read his books, I can tell you that while he may not condone the practice of gratuitously inserting graphic illustrations into demonstrative exhibits, I do believe he would understand and agree with the principles of proper layout, color usage and contrast to bring out a particular point.


Upon checking his web site, I noticed that he is offering some seminars in the coming weeks. I would strongly encourage anyone involved or interested in visual communication to attend. 


I still recall when I found out that my former law firm (Brobeck) was sending me to this course, I was a bit disappointed, not really having an interest in learning more PhotoShop or PowerPoint techniques. In retrospect, I am so glad I was able to attend, and I rely on this material in nearly every trial in which I am involved.

ASTC Article by Jason Barnes

A recent article by Jason Barnes which appears on the ASTC site (Anthropomorphism in Technical Presentations) offers some interesting insight as to the thinking processes of non-technical jurors involved in a technology or other complex case. It is easy to forget that jurors are not all familiar with what may be even a simple part of an extremely complex topic. I've witnessed this in court, as an attorney makes (or fails to make) reference to something in the case, assuming that since it is so basic, everyone must understand, and then quickly moving along to the weightier points at issue. Don't even get me started on acronyms... Although a couple jurors may be familiar with the topic, it must never be assumed. Further, it should never be left on the shoulders of the juror(s) who probably do understand to explain it to the rest during deliberations. This could be suicide. Even though they may indeed "get it," they might also be convinced that opposing counsel has presented the better evidence, thus using their expertise to help convince the others. 

That stated, it is often better to present the material in more than one manner, allowing each individual to understand the  matter on their own terms, and based on their own education, life experiences and preferred methods of learning new material. This may mean reviewing documents for some, an animation or perhaps some demonstrative graphic exhibits for others. I would never recommend attempting to educate a jury on a technical subject without the use of some form of visual support.

Good article, worth reading!

Delaware Technology Inn of Court

Just in case you've missed the buzz on the new Delaware Technology Inn of Court, here is a link. If you're involved or interested in legal technology (and in particular, e-discovery), this is pretty exciting news. Good news for progressive legal professionals, good news for trees, bad news for lovers of walls filled with file boxes neatly stacked in a war room.

Converted Twitter Account

Following the leaders, I've converted my Twitter account from "hobby" to "professional" version. I hope to be able to keep up with all of it.
Happy Tweeting: @litigationtech

How To Choose a Trial Presentation Consultant

(Note: The link to this article was removed. Here's a link to the original article on the Litigation-Tech website.)


Just published on the Litigation Educators web site, a timely article on things to consider when you need some assistance with trial presentation. There are many to choose from, but which is the best fit for you? How much might you expect to spend on trial support? Does less money mean less qualified, or does more money mean more qualified? How can you tell if they actually have a lot of courtroom experience, or if they are a trainee assigned to your case? What about software? All this and more is covered in this article.

Controversy, intrigue, mystery, suspense...

Certification of Trial Technicians has become the hot topic du jour on the Trial Technology group of LinkedIn. There are at least two organizations currently working on developing this, the National Court Reporters Association and the Organization of Legal Professionals.

Here is my recent comment on the topic:

Additional key items to consider in this are who is providing the certification, what are their qualifications with this topic, and what is their motive. If it is simply an opportunity to profit by slapping together a quick test and possibly some training, and then sell a certification, I would be against it.

If, however, it is demonstrated that they are indeed qualified to offer the testing, verification of qualifications AND actual trial experience, perhaps even requiring a recommendation from an attorney or legal professional whom they have worked with in trial, then it may be worth the paper it is printed on.

As with any other profession, going to school, taking a test, and gettting certified, while all helpful, do not make you a qualified expert in your field. You must also serve some time in your craft, working to perfect the art.

New LinkedIn Group: Trial Technology

Attorneys, legal professionals, law students, vendors and others interested in discussions, news and jobs related to the use of technology for purposes of trial prep and presentation are encouraged to join this new group.
http://www.linkedin.com/e/vgh/2276605/

Jurors and Technology in Trial: What Were Once Vices Are Now Habits

By Ted Brooks, originally published on ASTC (American Society of Trial Consultants)

(updated 4/6/2017 to replace photo links)

Introduction

The recent legal defense of actor Robert Blake included heavy use of trial technology. While the prosecution relied upon “old-school” trial presentation techniques, including the use of posterboard blowups, printouts of documents and photographs, criminal defense attorney M. Gerald Schwartzbach chose other alternatives. For the first time ever, he used high-tech tools in his trial presentation.

Then, in the recent high-profile criminal trial of Dr. Hootan Roozrokh, Schwartzbach once again gave jurors the opportunity to “see” the evidence by visually presenting the case in much greater detail than the prosecution. Considering common clichés such as “Seeing is believing” and “A picture is worth a thousand words”, is it possible that the outcome of a trial may be influenced by the methods used to present the evidence?

Given these two cases tried by Schwartzbach, one might expect a Los Angeles jury to be accustomed to high-tech trial presentation, but the same may not be true in San Luis Obispo, a small Central California city located about an hour and a half north of Santa Barbara. Is your next trial venue accustomed to trial technology?

Consider the case of Shropshire v. City of Walnut Creek, CA, a precedent-setting case in which an Olympic-hopeful diver was paralyzed after an accident during training in which he landed on top of a synchronized swimmer who had been training in the same pool. It was the first time that the San Francisco plaintiff’s firm Abramson Smith Waldsmith had incorporated technology into their trial presentation. It resulted in an award for “Most Innovative Use of Technology In a Trial,” not to mention an impressive $27.5 million dollar verdict. While Walnut Creek is less than an hour from San Francisco, this was one of the first times technology had been used to this extent in that courtroom.

In each of these three case examples, the jury has spoken. Each contains a valuable lesson on how technology may have helped jurors reach their verdict.

1) Use Technology for Visual Impeachment: People v. Robert Blake

Schwartzbach inherited a complex case in the murder trial of Robert Blake , and quickly realized the difficulty in managing and presenting a large collection of exhibits, photographs and recordings. His jury consultant suggested bringing in a trial technology consultant.

At the first meeting, Schwartzbach saw what could be done with trial presentation software (e.g. TrialDirector) to assist in efficiently presenting evidence. He was convinced that a tool like TrialDirector would help keep the jury focused and engaged in what would likely be a lengthy three-month trial.

Defense attorneys often face the difficult task of trying to level the playing field when many of the prosecution’s witness are sworn law enforcement officers. This case was also part of the focus of a book released just prior to the trial which could potentially have a significant impact on improving the image of the LAPD. Schwartzbach needed to be prepared for any opportunity to impeach the prosecution’s witnesses – especially any officers involved in the investigation.

This photo exhibit, taken for publication in a book shows the three detectives assigned to the Blake murder case.

At one point during the trial, Detective Steve Eguchi (above right) was being questioned about whether or not he was near or had climbed up on the dumpster in which the murder weapon was later found (after being removed from the scene, dumped and spread out for inspection at a nearby landfill). He denied having been near or on the dumpster. Schwartzbach had the photograph of the dumpster scene displayed on the big screen for the jury.

After making sure that Eguchi was sticking to his story, he zoomed in on – guess who?

Detective Eguchi quickly confessed in front of the jury, stating, “Yes, I guess I was there.” It seems that neither the LAPD nor the DA’s office had realized that Eguchi was in the photo, nor did they have the capability to show it in court. Needless to say, there were smiles on several jurors’ faces at this point. Passing a small photo in front of jurors certainly would not have had the same impact as the big screen zoom. Robert Blake was found not guilty on all counts.

2) Use Technology To Make Comparisons and Teach Visual Concepts: People v. Dr. Hootan Roozrokh

Dr. Roozrokh was charged with hastening death by over-medicating a potential organ donor in order to harvest his organs. This was an extremely important case of international interest – the first of its kind, which could have a serious impact on the future of organ donor programs.

From the opening statement, the District Attorney chose to show jurors how many bottles of morphine were allegedly used to over-medicate the donor. She placed a number of actual morphine vials on top of the witness stand – something she later repeated with a witness on the stand. It was a very slow process opening each box, placing each vial upon the table, attempting to count (and recount) each one, and occasionally knocking one over. A single 10mg morphine vial at twenty feet appears very small, and it would certainly be difficult to have a good perspective of a large number of them at a distance.

Mr. Schwartzbach wanted the jury get a clearer picture of the concept. One expert witness had testified to having knowledge of cases where as many as 5000mg were used in end-of-life situations. It certainly wasn’t an option to acquire and trot in a large case of tiny bottles to spread around the courtroom. Importantly, the case included an issue regarding 200mg of morphine.

A demonstrative exhibit was created to depict 200mg of morphine:

(20 morphine bottles)

This was a bit more helpful, allowing the jurors to see all twenty of the bottles, and getting some idea of the quantity at issue. Similar demonstratives showed different quantities of the drug. While this was helpful and far more efficient than the several episodes of bringing out the bottles, there is a better way of showing the jury how much medication was used in this case, as compared to how much had been used in other cases. A little searching on the Internet provided a compelling idea for the closing argument, comparing 200mg to 5000mg:

Fortunately, for the sake of organ transplantation programs and end-of-life care standards, Dr. Hootan Roozrokh was found not guilty on all counts.

3) Use Technology To Enhance Witness Testimony: Shropshire v. City of Walnut Creek

Olympic hopeful Scott Shropshire was practicing his diving at the Heather Farm swimming pool in Walnut Creek, California, along with his team and coach. At the same time, at the other end of the pool, the Aquanuts synchronized swimming team was rehearsing their routine, under the supervision of their coaching staff.

The Aquanuts finished and dispersed about the pool, with one member swimming underneath the diving board. Shropshire could not see her and didn’t realize she was there. He dove, and as he was about to hit the water, she launched out from the side, directly in his path. Shropshire instantly became a quadriplegic.

With the Pool Supervisor on the witness stand, attorney Bill Smith of Abramson Smith Waldsmith questioned him as to why there were no lifeguards on duty at the time, why there were no dividers in place, and where the lifeguards would have been stationed had they been present. Mr. Smith prepared graphics showing various lifeguard zones, but the witness did not agree with the zones as laid out in the prepared demonstrative. As Smith continued questioning the witness, Smith put a diagram without the zones on the witness’s monitor. The witness indicated where a zone might be, and with TrialDirector and a few drawn circles, a new demonstrative had been created on-the-fly – at the witness’ direction. The demonstrative suddenly advanced to an admissible exhibit.

While this could have been done on a sheet of paper, it was extremely compelling when presented on the big screen. Plus, as a powerful trial exhibit, it would now make the trip into the jury room for deliberations.

Plaintiff Scott Shropshire prevailed, with the jury awarding a $27.5 million verdict.

In addition to these examples, consider the following tips for making your visual case at trial.

Make It a Habit

Indeed, there was a day when using all of this technology stuff was thought of as being a bit risky – that it might be perceived by jurors as too flashy or expensive. Assuming most jurors now have a TV and/or Internet access, this is no longer a valid argument. In fact, jurors often expect to be shown the evidence, rather than just hearing about it – regardless of the venue. Numerous post-trial jury surveys and interviews have shown that judges and jurors alike appreciate the efficiency and enhanced learning experience that technology can bring to the trial. So, how can you get started?

Do It Yourself

You can purchase TrialDirector or similar software for around $600. The learning curve is not too steep – at least to master the basics (which are the functions most-often used, even by experts). There are also certified trainers available nationally to assist you in getting up to speed quickly.

While you might consider using something you already have, such as PowerPoint, you will likely find yourself at a great disadvantage during trial. The primary strength of PowerPoint is also its weakness – it is designed to present information in a pre-determined linear format. Unfortunately, trials do not always (if ever) go as planned.

Get Full Support

For less money than even the smallest of bailouts, you can try your case in much the same fashion as you always have, while someone else worries about putting a database together, cutting deposition impeachment video clips and presenting all of the evidence to the witness and jury. If you’ve ever been on the serving side of a witness getting solidly impeached via their video deposition, you know that this can be a game-changing, credibility crushing “golden moment.”

When displaying documents, as you discuss Exhibit 12, page 9, paragraph 4 with the witness, the paragraph is zoomed in, and the words “smoking gun” are highlighted for the jury.

The only real differences in working with technology, especially when someone is assisting you, are the trial preparation and the manner in which the evidence is published to the jury.

If you are interested in getting additional information on visual support options, there are a number of highly-qualified ASTC members who would be happy to assist you.

Conclusion

While any of the examples shown might be produced and presented in some fashion without using trial technology software such as TrialDirector, there is simply not an easier, more efficient method of doing so. In both the Blake and Shropshire matters, the lead attorneys had never incorporated technology into their trial presentation. Each felt that their case merited having every available tool to help present their case efficiently and effectively, and were willing to try something new. Now, they won’t attempt to represent a client without it.

Ted Brooks 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, 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.   Learn more at http://www.litigationtech.com.

Citation for this article: The Jury Expert, 2009, 21(3), 77-84.

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

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.

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

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.

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