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 divorce trial, People v. Robert Blake murder trial, and a hundreds of high profile, high value and complex civil matters.

All materials © Ted Brooks, unless otherwise indicated.

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Thursday, December 30, 2010

iPad Apps for Trial Presentation

1/12/2011 Enhanced version is now posted:
1/10/2011 Two iPad Apps Make Their Cases for Trial Presentation: I will also post it here on 1/12/2011, with additional screenshots and info.
1/10/2011 LinkedIn Poll: iPad for Legal Professionals - Tool or Toy?
1/9/2011 Update: "Apples to Apples: 2 new iPad Apps for Trial Presentation" will be published by American Lawyer Media on 1/11/11. Enhanced version with additional info and screenshots will be published on this blawg on 1/12/11.
1/8/2011 Update: Final Draft of "Apples to Apples: 2 new iPad Apps for Trial Presentation" submitted to AmLaw.

I will be testing two new iPad Apps over the next few days – TrialPad, by LitSoftware LLC (, which sells for $89.99, and Evidence, by Rosen Litigation Technology Consulting, Inc., selling for $9.99 ( Both were released in late December, 2010. I will publish my review after the New Year – don’t want it to get swept under the rug with all of the celebrations... 

TrialPad Screenshot
Evidence Screenshot


They certainly don’t appear to have all of the features TrialDirector or other trial presentation programs have developed over the years, but there may be a place and purpose for them.

While I’m at it, I’ll also offer some insight on a couple of new Jury Selection and Observation apps – JuryTracker ( and iJuror ( – each selling for $9.99.



Until then, have a Happy and Safe New Year, and may we all enjoy a healthy and prosperous 2011!

If you are reading this, you might also be interested in joining the Trial Technology Group on LinkedIn!

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
213-798-6608 Los Angeles
415-291-9900 San Francisco
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Thursday, December 16, 2010

Trial Presentation in Large and Complex Cases

So, you think you’re ready for trial? Here are a few key items that should be typically handled by a dedicated Trial Presentation Consultant. You might consider using this as a check-list when vetting trial support providers for your next case.

Large and complex cases – particularly those involving Co-counsel and multiple parties face unique challenges in getting everything ready for trial. Different firms handle things in different ways, which can be a recipe for disaster. Someone needs to be assigned to manage and present each party’s evidence during the trial. It is not generally a good idea to throw this task on anyone who is already working in another capacity, as it is a full-time job for one or more people – preferably someone who really knows what they are doing, as opposed to just training someone to use TrialDirector and expecting them to handle it.

1. Evidence Management

This is probably the single most important task assigned to a trial presentation consultant, hence it is the first on this list. As with any other form of construction, if the foundation is weak, the building will fall. This is also one of the main reasons for problems during trial. If the database is not set up properly, resulting in delays, lost exhibits or video impeachments that won’t play, you may find the Judge telling you that if you cannot operate the technology, then don’t use it. Although it’s not the purpose of this article to offer examples, there are right ways and wrong ways to do it. Someone who is not comfortable in organizing and managing hundreds of thousands of exhibit pages, video files, graphics and transcripts has no business taking charge of the database in a large and/or complex case.

2. IT/Technology

Who are you going to call when you have a problem with the audio or projector in the courtroom, or how about when you have trouble printing to the networked printer at 9:30 PM in the war room? You won’t have the convenience of making a phone call and having someone immediately at your disposal. While technology has made incredible progress, it is great – but not flawless. It is never a question of “if” something will go wrong when in trial, but rather “when,” and then how quickly it can be recovered or fixed. An experienced Trial Presentation Professional will be able to handle most any technology-related problem.

3. Expert at Trial Presentation

It should be obvious that if you are using someone with little or no actual experience presenting evidence in trial, you have chosen to compromise the best available resources used in representing your client. Although I am not aware of a case like this leading to a malpractice suit, I suspect it is only a matter of time, as it has happened in a case when a Jury Consultant was not used during Voir Dire. The safest bet is for the Attorney to try the case, and not attempt to handle everything else personally, nor merely attempt to keep billable hours in-house with Associates or others, regardless of qualifications. An experienced Trial Presentation Consultant will know when they can help “argue” the exhibit with a highlight or underlining the text, or will keep that exhibit up just a little longer because the Judge or jurors are still taking notes from it. Rather than just “running the software,” it should be a case of engaging in the proceedings.

4. Understanding of the Legal Process

While there are not many Trial Presentation professionals out there with actual in-house law firm experience, the best of them do have an understanding of the basics gained from their years in the profession. This is often the weakest part of the link when it comes to inexperienced Trial Technicians. The background of the individual prior to getting into trial presentation work can be a significant factor in their true value to the trial team. While many are often proficient with the software (some only having been recently trained), they are not able to recognize problems or offer best practice tips and ideas. If they are not comfortable communicating with Court staff and/or the Judge, or don’t even understand proper attire or courtroom etiquette, you and your client can suffer. Time management and the understanding necessary to properly prioritize several tasks are also key attributes when dealing with the needs of several attorneys at once. Actual experience working with large trial teams on complex matters is crucial.

5. Demonstrative Graphics and Visual Communication

Not every Trial Presentation professional is proficient at handling the development, design and production of demonstrative graphics, but the best of them can get the job done. Last-minute changes or onsite development of slides are not uncommon. This is actually a specialty in itself, often handled by graphic artists from the trial presentation provider or an outside vendor, but again, a good trial presentation consultant will have the necessary skills and software. This is also something that many attorneys feel they can handle themselves. I have seen some PowerPoint slides in trial that were clearly not done by professionals, breaking every basic rule of presentation, and causing jurors to cringe. (For more info on this, see

While utilizing technology to assist with trial presentation is becoming commonplace even in smaller matters, it would really be a disservice to a client these days to attempt to manage and present a large collection of evidence without it. If the case is worth trying, it is worth trying properly, and providing every available advantage. The “it looks too slick” or “too costly” arguments expired over 10 years ago, and this has been confirmed in post-trial juror interviews. To them, it looks like little more than a PowerPoint presentation, and they are certainly intelligent enough to realize that trial presentation and technology costs are only a tiny drop in the bucket of legal expenses. Also worthy of consideration is that jurors have openly stated their appreciation when technology is used, as it helps them to better understand, and helps speed the process – precisely why the Courts are purchasing and installing presentation systems. Never offer your clients anything less than the best – that’s why they called you.

It’s been a few weeks since my last post. The reason? I’ve been working with a Defense team of 3 law firms on a large, complex Class Action trial. Maybe I should have added another point: Work 14+ hours per day…

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
213-798-6608 Los Angeles
415-291-9900 San Francisco
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Monday, October 25, 2010

Product Review: Redact-It Desktop

(this article was written for and originally published on the OLP web site)

If you find yourself redacting “live text” documents, such as PDF, TIFF or even Microsoft Office files, Redact-It Desktop (by Informative Graphics Corp. is worth looking into. If you need to redact scanned non-OCR documents, you can also do that, but without the automated processes that make this program such a timesaver.

Installation was relatively painless, optionally adding a set of Macros which may be used with Microsoft Office document files.

Launching the program brings up a screen with web links to a few key places on the site, including Getting Started, Feature Vote, Redact-It Site and Update. Selecting “Open” starts a browse dialog, which is initially set by default to a series of Test Files which may be used to quickly learn the features of the product. Each test file address an issue, which is identified in the name of the document. Each document has instructions on how to use a particular function, and has a series of searchable points which may be tested for that function. While this might sound confusing, it is actually very simple.

For instance, if we select “Drivers license number redaction sample.pdf,” we open a document that explains how Redact-It may be used to run a pre-determined script of a number of different possible ways to identify and locate a drivers’ license number (including various abbreviations), and then apply “Redactups” to each of them. There are a number of commonly used preset scripts, and of course, you can easily create your own.

Running the “Redact Drivers License” script brings up 65 hits on the sample document.

Once you have redacted as desired, you may then “Verify” the Redactups, assign issues to them, and “Finalize” the document, saving it as a PDF, Tiff or proprietary “CSF” file. The original document remains unchanged. The CSF format requires the use of their free “Brava” viewer, allowing the user to set a timer on the document, disabling it from further viewing upon reaching a pre-determined expiration date. This clever feature might be used when sending documents for review, and you want to make absolutely sure they are deleted after a reasonable review period. This feature is not available for PDF or TIFF images. Password protection is available for any saved format. Insider Tip: Don’t send the document via email, and then the password in a separate message a little while later. That’s too easy to figure out by someone looking in the email folders.

One key selling point of Redact-It is that once you save a redacted document, the text is no longer there and cannot be recovered (as it was in a certain Facebook case a few years ago).

In the event you have documents that do not have “live” text, you may either manually draw redaction boxes around an area, or for about a $50 upgrade, you may add the OCR option (Nuance OCR engine), which will then allow full-text search and redaction.

Base pricing for Redact-It Desktop is $195, or $244 with OCR capability. Server and Kofax versions are also available.

The bottom line on this product is that while it has a relatively narrow purpose, if you have the need for automation (and who doesn’t need a little help with efficiency these days), and at a reasonable price, Redact-It will likely become a valuable tool in your arsenal. For the price of the demo version (free), you can’t go wrong in giving it a test-drive.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
415-291-9900 San Francisco
213-798-6608 Los Angeles

Friday, October 22, 2010

Top Ten Trial Presentation Laptop Specs, by Ted Brooks

This topic was addressed on the LinkedIn Trial Technology Group

1. Get two identical laptops, if possible. This makes it much easier to switch back and forth, etc. Use one as a work-horse, the other as the trial machine.

2. Get the largest hard drive available. Mine are 1TB.

3. Get the fastest hard drive available. Don’t settle for 5400 rpm because it’s less expensive. Get 7200 rpm.

4. Get the fastest processor available. Mine are i7.

5. Get the most RAM available. Mine are 8GB.

6. Get dedicated video memory, if possible. Mine have 1GB.

7. Go for the wide-screen. Once you get used to it, it is far more productive, having the extra work space.

8. Get Windows 7 Pro. The Home version is for use at home. There is an inexpensive “anytime upgrade” feature built in, in case you get the home version with the laptops.

9. Run in 64 bit, not 32. With W7 Pro, you can always choose to run older software in compatibility mode if necessary.

10. I ended up getting a couple Dell Studio laptops from Costco, for an excellent deal. You’re going to be amazed – it’s like computers are fun again.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
415-291-9900 San Francisco
213-798-6608 Los Angeles

Wednesday, October 20, 2010

Economic Downturn: Effects on Trial Presentation

VIDEO: Robb Helt and I just reported on the effects of the ecomomic crisis on the legal professions. The video has been posted on

This is the script I prepared for my portion of the segment:

Hi, I’m Ted Brooks with Litigation-Tech LLC, and the author and publisher of the Court and Trial Technology Blog.

I’m here today for, and I’m going to offer a brief update on how the trial presentation business has been affected by the economy over the past couple of years.
Even if you haven’t really been following current events, it comes as no surprise that the legal profession as a whole has taken a significant hit along with everyone else in the economic downturn. Law firms have slashed attorneys and staff, litigation support companies have closed their doors, and trial presentation firms have also suffered – even to the extent that the Merrill Corporation has dropped trial presentation from their list of services. Of course, that hasn’t been a bad thing for those of us who have benefited.
Looking back about 10 years ago when trial presentation was still pretty much in its infancy, once Brobeck dissolved and I started Litigation-Tech, we found ourselves primarily occupied with very large cases for very large firms. Through the years, we have been able to develop a good book of business with smaller firms, as the larger firms brought a lot of it in-house. “Innovate or die,” as the saying goes.
This brought us through a transition from working with large firms, to focusing more on the smaller firms that didn’t have the capabilities in-house, while still supporting larger firms when they saw the large, complex cases and needed some outside assistance.
Now, I’ve seen this all come full-circle. We’ve brought firms of all shapes and sizes into the high-tech trial arena, but have now seen smaller firms handing many of their cases in-house, having a paralegal or associate handle it. Large cases generally still warrant bringing in some help.
Large firms, now having cut back in staffing and in-house support costs are handling things in a similar fashion. We’re getting calls now from many large firms who no longer have the internal resources necessary to support large, complex trials.
Additionally, I have seen a big trend in getting trial presentation firms involved much earlier in the litigation life-cycle. What this means is that firms are displaying the “guns of war” during mediations and settlement conferences, in addition to arbitration and trial.
I see this as a true “win-win” for everyone – firms adapting to clients’ needs to avoid the added costs of a jury trial; Clients getting “no-holds-barred” representation early on, often resulting in a favorable settlement, and trial presentation people – both in-house and vendors keeping busy in a time where jury trials are getting rare. In those cases which do proceed to trial, opposing counsel is fully aware they are in for a fight.
Finally, it appears that many (although certainly not all) seem to “get it” that trial is not the place to train a paralegal or associate to bring up documents for the jury. If it warrants the best attorneys, it also warrants not risking compromises when it comes to trial presentation.
Thanks for listening. Now (and it’s a good problem to have), I have to get back to work, so I’ll turn it over to Robb Helt.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
415-291-9900 San Francisco
213-798-6608 Los Angeles

Wednesday, September 15, 2010

Effective Use of Exhibits in Closing Argument Helps Win $12.2 Million Verdict

UPDATE: Congratulations to Doug Saeltzer and Rich Schoenberger, of Walkup, Melodia, Kelly & Schoenberger, for winning 2011 San Francisco Trial Lawyers of the Year, as a result of this case!

Published in Plaintiff Magazine, September 2010

When you tie it all together, technology can capture jurors’ attention
and prevent losing them to boredom

By Ted Brooks

We learn and retain best when information is delivered in such a manner that we engage multiple senses in the process – the two most common and obvious in trial being hearing and sight. Arguing a case to the jury is standard practice in most cases and, when done properly, can help “turn on the light bulb” for those jurors who may need a little assistance in putting together the pieces of the case. Often, during the evidence phase of a trial, bits and fragments of information come in at seemingly unrelated points. Any effort to emphasize the connection at that point may draw an objection or, even worse, may offer clues to opposing counsel as to your trial strategy.
The best closing arguments I have seen (and I have seen many) effectively sew together all of these fragments for the jury in summation at the end of the trial. Up to that point, it would have been extremely difficult for even the most diligently listening juror to make the connections. What I have observed of jurors during closing arguments is that your exhibits – in addition, of course, to your commanding voice and presence – are what seem to catch and hold their attention. Since so much of holding a jury’s attention is dependent on the exhibits, we’ll break exhibit technology into three groups:

• Old school
• Middle of the road
• High tech

Old school hard-copy exhibits
More cases are tried using hard-copy exhibits without the use of technology than any other method – even today. While that may be true, it doesn’t mean that it is the most effective or efficient method available. Teaching a new subject to jurors and then leading them to view it from your perspective can be a difficult process and jurors can easily become bored or distracted. The easiest way to prevent this is to give them something to look at.
While passing a document, diagram or photograph among jurors that they can “touch and feel” may seem like a good idea, you really have no control over what they actually read or see on the exhibit. Further, unless you wish to delay the trial while every juror has an opportunity to examine the exhibit, there may be only one or two who actually see what it is you want them to read/see, when you want them to read/see it.
And yes, you can still enlarge or blow-up your exhibits, paste them on foam board and carry around a stack of exhibit boards with an easel, setting it up where half of the jury has to squint to read it and the judge can’t see it at all. If you do wish to use blow-ups for a key document or timeline, I would recommend limiting their use to only a few, and use at least 4’x6’ boards.

Middle of the road  ELMO
One of the more frustrating things in trial is listening to counsel and a witness discussing the key points of a document, while no one can see it. This can cause jurors to feel excluded from the conversation – and essentially they are. While it is important during evidence presentations to make sure the jury can actually view the evidence, it is even more critical in closing argument. Presenting your exhibits on an ELMO is a good step in the right direction.
A modern version of the overhead projector, the “ELMO,” (also document camera or visual presenter – ELMO is actually a brand-name) has been available for over 20 years. Used by itself as a means in which to get all of the jurors on the same page, it is a quantum leap beyond the dependency of the hard-copy exhibit, and can help the jury see much more of the evidence.
The downside of using an ELMO is the fact that it is simply little more than a video camera, allowing the same type of area-zooming you can do with any other camera. It is effective, but cannot zoom directly in to a specific paragraph of a document, or perhaps a specific item in a photograph or map. While it is certainly not on the cutting edge of technology it is highly available, being found in most high-tech courtroom setups. When added to the complete system, the ELMO can function as an emergency method of presenting something that wasn’t included in the trial database. Since it is actually a camera, it can also be effective in examining a small exemplar exhibit.

High tech  trial presentation software
Presenting your evidence and making your closing argument from a trial database using TrialDirector™ or other trial presentation software will enable the most efficient and effective means of getting your message across. It is efficient because far more evidence may be displayed in much less time when compared to using only hard-copy exhibits. In other words, it keeps it you “moving along.” Post-trial surveys confirm that jurors, like judges, are truly appreciative of any effort made by counsel to speed things along.
In addition to speed, trial presentation software is effective because counsel now has control over exactly what the jury sees and when they see it (all at the same time). It even provides an opportunity to argue the document to some degree by zooming into specific language and highlighting key text. Other effective features include the ability to zoom in on a photograph or Google Earth image, circle or place arrows at key points, and show what would otherwise be “hidden” to the viewer. In the latest version of TrialDirector, all of these features can even be performed on video as it plays for the jury. Regardless of what you are showing the jury, it is far more effective when displayed on 7 or 8 feet of screen.

Rehearsal  always
Regardless of which method you choose to present your closing argument, the best argument is a rehearsed argument. A prepared outline is essential, containing all of the key exhibits you wish to tie together, and in the proper order. Be prepared to use to your best advantage this final opportunity to connect with the jury as your visuals are presented, rather than shuffling papers and slides or fumbling with boards and generally appearing unorganized.

Pulling it all together for $12.2 million
The recent case of Emily Liou v. State of California, (Case No. CIV 460659. County of San Mateo) tried by Doug Saeltzer and Rich Schoenberger of Walkup, Melodia, Kelly & Schoenberger, illustrates the effectiveness of trial technology. This case involved a 17 year-old girl who was struck within a marked crosswalk at an uncontrolled intersection (no traffic lights or stop signs) on El Camino Real (SR82) in Millbrae, California.
It was important to establish that Caltrans had knowledge that a marked crosswalk in an uncontrolled intersection (no traffic lights or other significant warnings to approaching motorists) was not only actually more dangerous than not having one at all, but also that pedestrians tend to have a false sense of security within a crosswalk. An effective exhibit helped to do this.

The evidence also showed that there were four dangerous intersections on SR82, the worst being Ludeman Lane. What makes Ludeman Lane even worse than the others is the fact that the crosswalk is hidden behind a rise in the roadway when drivers are driving in the southbound direction. This was demonstrated by showing photographs of the roadway and zooming in to show how hilly it actually was. This little stretch of roadway had a very high rate of pedestrian accidents. Simple demonstrative evidence helped to explain visually that although each intersection would stand out on its own as dangerous, when combined with the other nearby intersections it became extremely obvious that there was a major safety problem on SR82.

Several factors were shown to contribute to a dangerous condition existing on SR82 at Ludeman Lane: Not only was the road wide, busy and fast with visibility problems, but it also included a marked crosswalk at an uncontrolled intersection. A simple bullet-point slide was used in closing to demonstrate these points.
The defense theory ignored the fact that there were skid marks in the road at the accident scene, with one expert even going so far as to suggest that perhaps they were made just a couple of hours prior to the accident. Plaintiff’s experts successfully demonstrated that this accident had occurred exactly as described by police investigators.
If the skid marks were indeed made by the co-defendant, Ms. Liou’s body would have been exactly where it was shown in the police report diagram. Simply adding a couple of arrows to the diagram helped emphasize this during closing. In each instance where a slide was created based on an actual trial exhibit, the exhibit number was clearly displayed on the slide for easy reference and juror note-taking.

Could this case and closing argument have been presented without the use of technology during trial and closing? Possibly, but given the number of exhibits and photos that jurors needed to see and “connect” in order to reach their decision, it would have been more difficult and certainly would have delayed the jury’s $12.2 million verdict.

Ted Brooks is a widely-recognized figure in the trial presentation and technology consulting field. He is the founder of Litigation-Tech LLC (Los Angeles and San Francisco), and is a winner of the Law Technology News Award for Most Innovative Use of Technology during a trial. or

Monday, September 13, 2010

Ethics: Whose Client Is It?

One topic addressed during the final panel session of the recent NCRA Trial Presentation and Certified Legal Video Specialist programs in Phoenix was how to handle it when someone sends you a referral to their client, and that client later asks you to do additional work for them.

It was suggested that the referring firm should be contacted for any subsequent work on that matter. In other words, if that client were to contact you to perform additional work directly related to that case, you should notify the referring firm, and they should then have the option to do as they wish with their client regarding any additional work. Of course, if the client requests you specifically, then that request should be respected and honored if possible by the referring firm as well. With respect to trial presentation services, I would certainly agree with this.

Now, where I have trouble is the example which was shared in which the client then later contacts you directly about a different, unrelated matter. For videographers, apparently the door is open at that point to accept work directly from the client without notifying or involving the original referring firm. If the client was local and the referring firm was not, it was then fair game to take that client from them. I’m not so sure that this is really a good way to do business and maintain a healthy relationship with the referring firm – regardless of location and proximity.

It may be because there are a larger number of videographers throughout the country, coupled with the fact that the client-vendor relationship is rather brief, but I can tell you that this would never fly in the trial presentation community. You would have only one opportunity to steal a client, and you would probably never again get called for additional work from the referring firm. I don’t know how small and close the videographer community really is, but I can tell you that most everyone in the trial presentation business knows who most everyone else is, and whether they have ever taken someone else’s client. In my opinion, this would apply to marketing to co-counsel or even opposing counsel while working on behalf of a referring firm. As a subcontractor, you are not there to represent yourself, but rather the prime contactor who referred you in the first place.

Although the client-vendor relationship is a stronger factor in trial presentation, I would suggest that it may be a good idea for videographers to consider whose client it was in the first place, and whether snapping up a little extra work now could cost you much more later. If there is a question as to whether it is the right thing to do, the safe and honorable thing to do would be to contact the referring firm. Although you may be losing out on a few quick dollars in doing so, the long-term effect can be far more valuable. We are all only as good as our reputation.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900 San Francisco
213-798-6608 Los Angeles


Saturday, September 4, 2010

Los Angeles Dodgers Divorce Trial (Technology)


No hesitation in adding this $450 MM high-profile win to my résumé, working with David Boies, Dennis Wasser, Bruce Cooperman, Mike Kump, and the rest of Team Jamie. Litigation-Tech provided trial presentation consulting, evidence management (TrialDirector databases), and graphics. This case involved long hours and very hard teamwork – a simple formula that I’ve consistently experienced in any big trial win. Congratulations and Happy Holidays, Jamie!

While I’m not at liberty to offer any inside information, I will say that working with the likes of David Boies and Jim Miller (Boies, Schiller & Flexner), Dennis Wasser and Bruce Cooperman (Wasser, Cooperman & Carter), Michael Kump (Kinsella Weitzman Iser Kump & Aldisert), and the rest of Jamie McCourt’s dream-team is a real treat.

Ross Baron (formerly with Merrill) and I were contacted by Wasser Cooperman paralegal Mary Yates and subsequently retained to provide evidence management, war room support and trial presentation. Ross has been handling most of the prep, while I have been in the “hot seat” in court during the trial. This is an incredibly interesting trial, with an incredibly talented and dedicated team of professionals.

With one week in the books, we have a little pause in the action until the trial resumes, so I wanted to at least post something on the blawg, as it has been a few weeks. It’s funny how work can quickly push lesser priorities off the road.

I will not discuss the case, but I will share an interesting experience regarding trial presentation and technology. Once the doors are opened to the courtroom, the proceedings get rolling quickly. Typically, we might have at least 30 minutes or so to get everything online and test the system. On Wednesday, the doors opened at 1:30 after lunch, and Boies resumed his examination of Frank McCourt by 1:35. I had a little “issue” with my trial presentation laptop (which I had brought with me during lunch), causing me to jump to my backup laptop (which had remained in the courtroom, ready to go) and flip the switch to quickly bring up the requested exhibit. Fortunately, I had the backup in place (which, by the way, is an excellent example of why we always have backup systems in court). There is simply no good excuse for failure in this business – especially in high-profile matters. After a few stressful moments, I was able to bring the primary laptop back online, and take a deep sigh of relief. The best part of this is that nobody else even realized that anything had gone wrong (except perhaps those who were sitting nearby). While some smaller cases might allow counsel to handle their own technology, there is certainly a limit with respect to the inherent risks in dealing with it. That stated, it is generally a better idea for an attorney to focus on examining the witness and let someone else worry about the presentation of exhibits.

Incorporating technology into your trial presentation can help significantly in speeding up the pace of the presentation of evidence, since there is no delay in making sure everyone is on the same page – and this is even more important in a bench trial. Exhibits are displayed immediately as they are identified on the record during a bench trial (and, of course once authenticated and/or admitted into evidence in a jury trial). This is one reason successful law firms and their clients insist on bringing all available tools and resources to trial.

Electronic evidence presentation can also help in getting the message out visually, allowing counsel to simply call out an exhibit number and page, and then mention for the record where the witness should look on that page. The exhibit is then brought to life by zooming in and highlighting key text using TrialDirector or similar software. This is particularly effective when discussing documents with the witness, which might otherwise by extremely dull and boring to the observer.

While trial presentation technology may not be able to turn a bad case into a good one, it can certainly help in getting the evidence presented in the most efficient and effective manner possible.

For additional news and views about this case, check out,, and, of course, most any local L.A. news source.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

Thursday, August 5, 2010

Portable Law Office Equipment: The Printer

Each day during trial, I bring not only my laptop(s), but I am also prepared to print, scan, and perform a variety of other essential functions – all in court. In this article, I will offer a brief review of the Canon PIXMA iP100 printer.

I have used the HP 450 and 460 portable printers, and was about to purchase a new HP 470 printer, when I decided to do a little bit of research before dropping another $250 or so on the latest model. The primary reason for doing this was that I’ve actually purchased two or three 450’s and one 460 – and NONE OF THEM WORK! Actually, the reason I bought the 460 a couple of years ago was because the 450’s would do nothing more than pass a blank page through with any print command – even a print-test page. It appears that the drivers just won’t work any longer. I have no idea why, nor do I care to waste more of my time attempting to figure out what happened and why. According to the reviews I read, it seems that I am only one in a multitude of others with the same issue. Not good.

The HP 460 apparently suffered from some sort of traumatic injury (did I mention I carry these things in my rolling carry-on?) during my daily walks to court. All it does now is shake and rattle a bit, and then lights up to indicate it’s having a paper feed issue. Not good.

So, I looked at alternatives, and the Canon PIXMA iP100 seemed to be the next logical choice. I couldn’t really find much in the way of reviews, which I now guess is a good thing. Did I test this thing before going to court? You bet I did.

During my last trial (one month in the U.S. District Court in S.F.), I hauled in the trusty new Canon in case we would need to print exhibits, outlines, and emails (all of which we did) in court. This little printer performed flawlessly. It (like the HP) is a little noisy for use during the trial, and is best used during a break. A battery pack and Bluetooth capability are also available, although I’m sticking with the USB.

This printer doesn’t actually look all that durable, as it is made of lightweight plastic, but the design appears to work. It is a little smaller than the HP also, which is another benefit. The paper feeder also works better and holds more paper. I’m not sure how the ink will hold out yet, but I’ve made it through one trial without changing cartridges.

The bottom line on the Canon PIXMA iP100 is that I would highly recommend it to anyone needing a small, lightweight and portable printer that will actually work when you need it. At about $250 list (about the same as the HP), it is well worth the money spent.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

Wednesday, July 14, 2010

Cost Recovery for Trial Presentation

Trial Presentation Consultant/Trainer Cheryl Evans recently posted a question regarding taxable costs for trial presentation consultants. Just to make sure everyone knows what we are talking about here, the term “taxable” as used here refers to recoverable costs by the prevailing party in a trial. To further explain, these costs are to be added as a reimbursement for expenses of certain things, in addition to the award per the verdict.

There is some discretion as to interpretation, and the Circuits differ in this as well. In short, if Counsel can prepare a compelling motion regarding the benefits realized and the necessity for these services or products, recovery may be granted. I have routinely seen the prep and development phase covered, and have also heard that even the presentation has been covered in some cases.

Federal Rules of Civil Procedure 54(d)(1) and 28 U.S.C. § 1920 relate to taxation of costs, but allow for a degree of interpretation of what is “reasonably necessary in the prosecution or defense of the lawsuit…”

I generally suggest that my clients handle it the same as they would with demonstrative graphics.

There are several cases cited in Modern Visual Evidence, by Gregory P. Joseph. This book is a very helpful reference and a valuable resource to those in this profession.

Here are a few case citations – the first two from the above-mentioned reference and the third shared by Cheryl Evans and Michael Arkfeld, regarding exemplification as explained by the Seventh Circuit:

“… as permitting an award of the reasonable expense of preparing maps, charts, graphs, photographs, motion pictures, photostats, and kindred materials,” including graphics services and multi-media evidence display systems.

-- Cefalu v. Village of Elk Grove, 211 F.3d 416, 427-428 (7th Cir. 2000)

-- BASF Corp. v. Old World Trading Company, No. 86 C 5602, 1992 U.S. Dist.

-- Transamerica Life Ins. Co. v. Lincoln Nat'l Life Ins. Co., 2009 U.S. Dist. LEXIS 72572, 34-36 (N.D. Iowa Aug. 17, 2009). The Court awarded costs for the consultant time and equipment costs in presenting a "multimedia" trial presentation pursuant to 28 U.S.C. § 1920.

Bottom line – get the book.

By the way, today is the first anniversary of this blawg!

Ted Brooks, President

Litigation-Tech LLC

"Enhancing the Art of Communication"

Member, American Society of Trial Consultants

Certified inData TrialDirector Trainer

415-291-9900 San Francisco

213-798-6608 Los Angeles


Sunday, June 27, 2010

ADR and the Art of High-Speed Trial Presentation

Recent involvement in a large Construction Mediation, followed by a series of 2-day Chrysler Bankruptcy Arbitrations have served to remind me (along with a couple of my clients, and our opponents) of the true value of thorough preparation, coupled with the absolute necessity of delivering the most efficient and effective trial presentation possible.

Also see: How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials

Today’s economy has certainly had an effect on decisions to pursue traditional litigation, versus various forms of Alternative Dispute Resolution (ADR), which are typically perceived as shorter and less costly. While the latter is debatable, the former is generally true. That stated, showing up for a two or three-day proceeding and expecting everyone to follow along while searching for exhibits in boxes, or jumping quickly from binder-to-binder can be a recipe for disaster.

Although the fact-finder may indeed wish to mark up a copy for reference, having the ability to quickly show the “hot spots” on the exhibits is important. Zooming in on a paragraph and highlighting the key text with TrialDirector gives visual cues and direction as to what is important to your case. While you may argue that it is all important, you will likely find the Judge encouraging you to make sure and point out the real important stuff. Failure to do so may be failure to get your message heard and understood.

Preparation for this type of proceeding should not differ from traditional trial preparation. Many cases heard in ADR are of no less value than similar matters heard in court. Just because ADR is chosen as the venue does not mean that preparation should be compromised. In fact, given the shortened time in which the entire case must be presented, it is more important than ever to have everything ready to go. In ADR, a win is still a win, and a loss is still a loss.

Except in perhaps the smallest of matters, it is never a prudent idea to attempt to “save your client some money” by not taking all necessary steps for trial prep, such as scanning of exhibits, videotaping depositions or having demonstrative exhibits created. Neither is it a good idea to attempt to handle this and the trial presentation yourself, unless this is something you do on a regular basis. In any event, while you may have less people billing on the matter, the real value to the case may be compromised. There is a significant difference between someone who does something only occasionally and an expert who does the same thing regularly. Trial presentation is certainly easier these days, but unless you’re doing this full-time, you are at a disadvantage (and risk).

Along the same line, cost does not always equal value. In other words, attempting to again “save your client some money” either by doing things yourself or hiring the “cheapest” service provider available can bring a negative result. In many cases, hiring “the best” you can find brings in another level of professionalism to your trial team. In most cases in which I’ve been retained, I have been able to objectively view the case from a different perspective – more like that of a juror – and have been able to offer valuable insight, contributing to case strategy. You won’t always find this same level of service by shopping for the lowest hourly rate or by working with a large company without knowing the level of experience and qualifications of the individual(s) actually assigned to your case. If you value your client and your own reputation, don’t risk doing them a “favor” by saving a few bucks at the expense of the trial.

ADR can be likened to an Opening Statement and Closing Argument all built into one. That stated, be fully-prepared to deliver your message quickly and clearly. Don’t hesitate to engage the services of others in your firm or to bring in outside consultants when necessary. It is rarely in the best interest of your client to compromise by taking the path of least resistance or lowest cost, while potentially risking the outcome of your case. This reminds me of an old saying…

Also see: How to Prepare for Shortened Litigation: Mediation, Settlement Conferences, and Expedited Trials

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

Monday, May 31, 2010

Electronic Trial Exhibit Management and Production

Preparation and Production of the Trial Exhibit Set

As the trial date approaches, the exhibits must be prepared to hand over to opposing counsel and the court. Frequently, there are last-minute changes to expert reports, exhibits are added or removed, or other issues arise, resulting in a frenzy of work to update all of the binders, remove and replace exhibit stickers, and ensure that every set is exactly the same. A judge will fail to find humor in any of these “little mix-ups” that arise during trial.

Electronic exhibit management

Regardless of whether or not you have a document database (such as Summation or Concordance) prior to trial, it can be time saved and money well-spent to bring in a Trial Consultant to assist in the production of the trial exhibit set. This will have even greater value if you are planning on presenting your evidence using technology such as a TrialDirector database, since the efforts will not have to be duplicated. The trial exhibit database can be utilized for both production and presentation of the trial exhibits.

Identifying the Exhibits

Most firms work with a tabbed binder set to separate and organize the exhibits. In cases in which this has already been done with the hard-copy set, this same system will typically be incorporated into the trial database. In other words, if you have exhibit tabs ranging from 1 to 500, the database will also reflect that convention. If the wheel exists, there is no need to reinvent it.

In cases where this has not yet taken place, exhibits are often organized chronologically and/or by issue. This is also easy to deal with, simply assigning sequential exhibit numbers in the order desired. 

Assigning Exhibit Numbers

The trend of the courts today is leaning toward pre-marking of exhibits. That is to say that rather than automatically assigning the first exhibit identified during trial as “Exhibit 1,” the actual exhibit number will have been pre-determined according to its assigned number in the trial binders. This can also be encouraged by a “Meet and Confer,” with both parties agreeing upon a numerical range of numbering.

Generally, the Plaintiff’s exhibits will begin with number 1, and should leave plenty of room for additional exhibits to be added. Often, there is undue concern with which exhibit will be assigned number 1, as if the jury will think it is more important than the rest. This has caused more than one re-shuffling of the entire exhibit set.

The Defendant’s exhibits should leave a sufficient gap at the beginning of their numbering. I would also discourage using letters, as this gets extremely confusing to everyone – especially the jurors. It is difficult to distinguish between a “C” and a “Z” for the listeners. Not to mention, there are a couple letter combinations I’ve heard in court that I’m sure were later regretted.

Final Trial Exhibit Preparation

When working with a database, although changing a range of exhibit numbers does take some work, it does not require nearly the amount of labor it would take to shuffle and print several new binder sets.

One advantage over the hard-copy method is the ability to “brand” the page (Bates) number onto each page for production. This enables everyone to quickly get to the proper page of an exhibit, as opposed to instructing a witness to “turn in about 30 pages or so, and look for the paragraph I’m showing you here.”

Another advantage when exhibits are pre-marked is the addition of electronic exhibit stickers. Once the exhibit list has been finalized, these “stickers” can be applied to the first page of each exhibit. Then, a pdf set can be generated and sent to a print vendor for binder assembly. A benefit of the electronic sticker, aside from the fact that nobody has to stick them all onto the exhibits is that they do not add any width to the page. So, your exhibit binders won’t gain thickness in the bottom right corner where all of the stickers are.


Handling exhibits electronically can save a great deal of time not only during the trial itself, but also in the preparation process. I recently had a client (an attorney) tell me that in many years of litigating, he has never before felt as well-prepared and confident prior to trial as a result of managing everything electronically. In another matter, a paralegal shared her observations on how the trial preparation process is much more efficient when handling exhibits electronically, as opposed to printed binders (as a result of having to renumber the entire set within a week of trial). When comparing electronic to hard copy exhibit management, the difference in the level of efficiency can save a lot of time and money.

This type of trial exhibit management may require the services of someone with strong qualifications and experience, but the time and money saved will more than make up any difference in cost. Make sure to check and verify the background and trial experience of the person who will actually be with you in trial – an off-site project manager or sales person can be of little or no value at 1:00 in the morning. When it comes to trial support, there can be a significant difference between cost and value.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication"
Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

Monday, April 26, 2010

First Review: TrialDirector 6

First Review: TrialDirector 6
By Ted Brooks

If you’ve never before used trial presentation software in your practice, now is the time to consider it. If you’ve used previous versions of TrialDirector or other trial presentation software, now is the time to consider springing for the upgrade.

Note: Since this remains a popular article, I will add that TrialDirector  6.2, build 900 is the current version, released 12/16/2010, and that several things have been upgraded and even some great new features have been added. I also anticipate another release within a few days to fix a PDF issue. With such a major overhaul of the program required to work with Windows 7, these past few months have allowed the folks at inData time to get the "real world" feedback necessary to make sure that it continues to maintain its reputation as the "Gold Standard" in trial presentation software. It is comforting to know that they are driven to continue developing and improving the program by listening to those who actually use it daily. Hope you enjoy the review.

Four years in the making (version 5 was released on 5/1/2006), TrialDirector 6 brings together all of best features from previous versions, and includes many feature requests by current users. This shows they are listening. 

I have been running version 6 for several months now (going through Alpha and a few Beta versions), and unlike many new software releases I’ve worked with, this one is now stable and ready for prime-time. As a disclaimer, I will say that I have used TrialDirector for many years and have a close working relationship with inData, the makers of TrialDirector. I have not been compensated by inData for this or any other reviews or mention of their products, nor have I submitted this article to them for their review, approval, editing or modification. I have also used other trial presentation software with good results. Competitive products such as Visionary and Sanction are also excellent platforms for trial presentation. That stated, while I may admittedly be a bit partial, I will do my best to offer an objective analysis of TrialDirector 6 in this brief review. For purposes of this review, I will not attempt to cover every feature of the software, nor those features which were already in version 5. For more info on version 5 (and some features in common with version 6), please refer to my review (, or to the inData website ( for additional product information, including a very helpful new set of online tutorials.

At First Glance

Upon launching the program for the first time, everything looks familiar. The Case Library view looks like version 5.

From here, we will take a look at a few of the major changes – the first being something I have been asking inData to implement over the past 4 years – the return of the Grid View. The Document Manager tab now brings back the fully functional, editable and sortable database view, reminiscent of version 3 and 4. For the occasional user, this may not be a big deal, but for those who must build and manage large databases, and many of them at one time, this is a critical feature. It simply allows another perspective (albeit somewhat geeky), that enables quick editing of any column. So, instead of having to right-click on a document in the Case Library to display properties, or use the F2 shortcut to get a one-line editable row, you can now see all of them at once.

This is not actually a “new” feature, but rather an improved version of something dating back to version 4 that simply makes sense to those who use it. Not everyone will appreciate this feature, but for those who will use it, it’s one of the best parts of version 6. Sometimes, older is better. Also, the Coding tab at the bottom is essentially the same database as in previous versions. There is nothing monumental to report here in the way of updates. It works great, and does everything a basic coding database should do.

Transcript Manager

The Transcript Manager also looks familiar when you click the tab on the bottom – but it has been totally revamped. Being a long-time user of TrialDirector, I had become accustomed to creating clips by selecting the desired text and then listening to “edit,” or trim the beginning and ending of the excerpt.

Can you simply input the page:line designation start and end to create a clip? Yes.
Can you select the desired text to create a clip? Yes.
Can you use the clip wizard to assemble clips? Yes.
Can you use the segment editor to create and assemble clips? Yes.

Can you still edit clips by selecting text and then listening to make your adjustments as in version 3-5? No, not really.

I’ll be honest, I haven’t been a real fan of “visually” creating clips, even though it has been out for several years in version 5. There was just something missing for me, be it accuracy, the speed in which I could get the clips created and edited, or who knows what. In TrialDirector 6, you will need to decide which of these methods works for you. Some will like the option to just type in the page and line numbers. Others, like me, will likely develop their own “hybrid” method. I find that it is fastest for me to select the text manually, and then go to the visual and audio display to trim the excerpt. One reason this works for me is that by selecting the text, I automatically assign it an ID, based on my desired settings, found in “View,” “Options.”

So, instead of having to manually name the clip, it is already named and sorted for me. You can also choose something like “Clip 1,” “Clip 2,” etc., but then you don’t bring any descriptive information into the database. This method also enables me to view the text, making sure it makes sense, and isn’t starting or ending in the middle of a question or answer.

Frankly, I was amazed at the accuracy of the clips when dealing with the visual display waveform editor. Maybe my sync was dead-on accurate, but the start points were almost always perfect – something that would rarely happen when using only the audio (tape deck or VCR-inspired controls) for editing – regardless of sync accuracy. As a result, clip creation and editing speed are now much faster and more precise.

It’s All About Presentation

Perhaps the most important thing TrialDirector or any trial presentation software can do is present evidence to a jury and/or judge. Of course, without a proper system and method of data management, it wouldn’t be much better than PowerPoint. That stated, if you’re looking for bells and whistles and/or cool new features, there are plenty to be found in the presentation and what I will refer to as the “pre-presentation” areas.

When in dual screen mode (one showing the database, the other the trial presentation), there is a new “Mirror Mode” feature which allows the user to zoom, highlight and/or otherwise work with a document in the “Preview” screen and have the results displayed “live” on the presentation screen. So, rather than display the cursor or other annotation tools in front of the jury, you can simply have your work “appear” on the presentation, while you are working in the preview screen. A real benefit of all of this is that although you are able to display only the results, you are still able to view and work in the database, and if you need to move the cursor over to the presentation to point something out, you still can do that. So, you now have the option of setting something up in Preview and then presenting it, or doing the whole thing “live,” in addition the typing in an exhibit number, using barcodes, or the improved document explorer in the Presentation screen.

The toolbar has a nice “auto-hide” option, in addition to improved settings which may be saved. The presentation also offers some very flashy (read: glitzy) display options, such as a mirror and backlight effect, which are probably a bit over the top for actual trial presentation. They can be used for other types of presentations, however, as in a recent matter in which I provided a recap of the trial in a PowerPoint presentation. For that, I was able to take advantage of some of these effects.

The Bottom Line
If you already own TrialDirector, I would say the decision to upgrade is a no-brainer. If you are current with your TrialDirector 5 annual maintenance, the price of the upgrade is offered at a 50% discount. If you are purchasing without a qualified upgrade, the list price is $695 for the software, plus $139 for annual maintenance, keeping it in line with other competitive programs.

The upgrade from version 3 to 4 was dramatic, 4 to 5 introduced many new features, and now TrialDirector 6 has really brought it all together. In my opinion, inData’s TrialDirector has once again raised the bar, which will likely help it remain the market leader in trial presentation software.

Additional resources:
Court and Trial Technology Blog
LinkedIn Trial Technology Group
Trial Technology Yahoo Group
LinkedIn: Ted Brooks
Twitter: litigationtech

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco

Wednesday, April 21, 2010

Trial Technician Certification

This topic was posted on the Trial Technology LinkedIn Group by Chere Estrin, Editor-in-Chief at SUE Magazine for Women Litigators. Who really stands to gain with certification of trial technicians? Read on...

Where do trial technicians get trained? Where are the courses and texts for trial technicians? How do you know if someone has received adequate training of the core competencies?

-Chere Estrin, Editor-in-Chief at SUE Magazine for Women Litigators

While the original topic of this post seemed to be directed more toward the technical issues of trial presentation, ethics and proper protocols are certainly a key part of this profession. It is not enough to simply know how to put up documents with TrialDirector if one doesn’t know how to effectively communicate with counsel or know the rules of the court.

I would also add that there should be a distinction between a trial tech and a trial consultant, the latter having a great deal of actual experience in offering helpful insight regarding the trial itself – not just the technical issues. You won’t get this with a certificate.

As a result of having been employed by a major law firm, I learned things like ethical issues, the litigation process and many things that make up the big picture. While I would suggest that this may be one of the best possible routes one might take, it is not always an option. Law firms, like most other companies, aren’t in the business of training people who have no prior experience or qualifications.

That stated, I am a strong supporter of the efforts of OLP, NCRA and ALSP in their respective roles of developing course material and examinations for certificates and certification of trial technicians and other litigation support roles, such as electronic discovery.

While the NCRA (National Court Reporters Assn) has their roots in other areas, I will say that the people actually involved in the trial presentation section are indeed qualified, and are not court reporters. They can also provide a natural transition path for the many legal videographers they represent. I was very skeptical at first as well, but can say (first-hand, as a guest-instructor) that if they continue in the same direction, they will likely succeed. They do have a wealth of experience in education and certification processes.

The OLP (Organization of Legal Professionals; they have a LinkedIn Group) is a relatively new organization, which is focused primarily on education and certification in several areas. Having this single focus will certainly be beneficial, and the Principals and many members have a great deal of experience in education of legal professionals. They are also reaching out to many well-known and established professionals to increase their level of credibility.

The ALSP (Association of Litigation Support Professionals; also have a LinkedIn Group) is yet another organization with similar goals, although (at least to my understanding), they are a completely volunteer organization in these efforts, and as a result, have some limitations with respect to the level of time and resources they have available.

In my opinion, the ones who will benefit immediately from all of these efforts, regardless of the sponsoring organization are our clients, and ultimately as a result of a higher degree of professionalism, ourselves and our profession. Will one be better than the others? Only time will tell.

Ted Brooks, President
Litigation-Tech LLC
"Enhancing the Art of Communication" Member, American Society of Trial Consultants
Certified inData TrialDirector Trainer
415-291-9900  San Francisco