Standard of Care: Trial Support Services

Which is more important – cost or value? Although both must be considered when bringing in a Trial Technician, cost will often override most other factors. In some cases, that doesn’t present much of a problem. In others, it can literally affect the outcome of the case, compromising the levels of experience and overall performance available to the trial team.

Monica Bay, Editor-in-Chief of Law Technology News, shares that their “Technology on Trial” column has been a reader-favorite since its inception in 2002, and that “High Profile Trials” was one of the top stories of 2013. Covering several newsworthy matters (Litigation-Tech provided trial support services for 2 of them), the article offers several examples of how technology has affected the outcome of a trial. It is interesting and entertaining to read about those big cases with the budget to bring in all of the best people and latest equipment. But what about matters which don’t have the big bucks available to support it? What are the options?

Lowest Cost – This would appear to be the easiest point to consider when evaluating multiple bids, although in addition to the hourly rate, other cost-related issues can be a factor. Some may offer a low hourly rate, but add “rush” charges or overtime premiums. Others may offer some or all of the trial presentation equipment at no extra cost. When comparing bid estimates, it is important to consider as many factors as possible.

Best Qualified – Vetting multiple providers can involve some additional research. Most will have a list of referrals, and can provide actual contact information if requested. Experience in matters of similar scope can save many hours, eliminating the need to “reinvent the wheel” for your case. Even in an age of readily-accessible information online, one of the best resources is the referral from a colleague. A referral provides the “inside scoop” that may not be available through other channels.

Best Value – One important business economics principle is the contrast between cost and value. Paying less money for the same item makes sense. Paying more money for a similar, yet superior item also makes sense. Every trial is unique, and decisions should be made appropriately. The least expensive option will fit some, and could spell disaster in others.

Additional information on selecting the best Trial Support Provider for your case: Ten Questions to Ask Your “Hot Seat” Provider, and Ten Qualities of Top Trial Presentation Professionals. 

Equal Justice for ALL: California Trial Presentation Costs FULLY RECOVERABLE

At the conclusion of many trials, we are asked to itemize the various services we’ve provided in order that they might be included in a cost recovery request. In the past, much of the preparation work was recoverable, including things like preparing demonstratives, animations and videos, editing deposition video excerpts, preparing an exhibit database and printing oversized boards. Oddly enough, the time spent during trial actually showing the evidence to the jury was generally not on the list. Although the Courts have openly appreciated and encouraged the use of technology in trial for many years now (see Judiciary Opinions on Technology in Trial)  -- even to the point of installing trial presentation equipment in our courtrooms, associated costs to make it all happen in trial were not considered recoverable. As a result, with top-flight trial presentation costs approaching those of a good expert witness, it could be tough justifying the non-recoverable expense in smaller matters.

During HarrisMartin’s California Asbestos Litigation Conference this week, Mahsa Kashani Tippins (Gordon & Rees) and I covered “The Use of Internet Technology in the Courtroom.” Our presentation focused on iPad apps, trial presentation, and internet access options, but I observed nearly everyone immediately taking notes at the mention of Bender v. County of Los Angeles, Cal. App. 2d Dist. (July 9, 2013) – a recent case in which trial presentation costs were deemed fully recoverable. You can download and view the entire opinion with this link, and here is the relevant section:

4. The Denial of Defendants’ Motion to Tax Costs

b. Costs for trial technology

Under Code of Civil Procedure section 1032, the prevailing party is entitled as a matter of right to recover costs. Section 1033.5 identifies cost items that are allowable under section 1032 (§ 1033.5, subd. (a)); identifies items that are not allowable (id., subd. (b)); and further provides that “[i]tems not mentioned in this section . . . may be allowed or denied in the court‟s discretion.” (Id., subd. (c)(4).) Any allowable costs must be “reasonably necessary to the conduct of the litigation rather than merely convenient or beneficial to its preparation,” and reasonable in amount. (§ 1033.5, subd. (c)(2), (3).) We review a costs award for abuse of discretion.

Plaintiff‟s memorandum of costs included a claim for $24,103.75 for courtroom presentations. These costs consisted of “Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing” “and the cost of a trial technician for nine days of trial. Plaintiff used a PowerPoint presentation in closing argument that consisted of a detailed summary of trial testimony, documents and other evidence as well as a “comprehensive evaluation of such evidence vis a vis jury instructions.” The costs included charges for creating designated excerpts from deposition transcripts and video, converting exhibits to computer formats (Tiff‟s & JPEG‟s), and design and production of electronic presentations. Defendants‟ motion to tax costs challenged this item, contending case law establishes these costs are not recoverable and that similar costs were “specifically disallowed” in Science Applications Internat. Corp. v. Superior Court (1995) 39 Cal.App.4th 1095, 1103 (Science Applications).

The trial court carefully considered all of defendants‟ contentions but ultimately declined to tax any part of these costs, explaining its reasoning in considerable detail. In essence, the court thought the costs should be allowed – in a case like this where attorney fees are recoverable costs – if the services in question “enhanced counsel‟s advocacy during the trial,” so long as the costs were “reasonably necessary to the conduct of the litigation.” The court found both points to be so: the synchronizing of the videotaped depositions, for example, including the cost of employing a projectionist to recover and retrieve the excerpts selected by counsel, both enhanced counsel‟s advocacy during trial and was reasonably necessary to the conduct of the litigation.

Defendants contend, based on Science Applications, the costs at issue are “explicitly nonrecoverable” and the trial court “had no discretion to award them.” In Science Applications, the appellate court approved some technology costs and disapproved others. It approved costs of over $57,000 for graphic exhibit boards and over $101,000 for a video “to help the jury appreciate the difference” between manual and computer-assisted dispatch systems that were an issue in the case. (Science Applications, supra, 39 Cal.App.4th at p. 1104.) It disallowed costs of $200,000 for “document control and database for internal case management”; more than $47,000 for “the production of laser disks „containing‟ trial exhibits”; a “graphics communication system” with costs of more than $9,000 for equipment rental and $11,000 for an on-site technician; and more than $35,000 “to have videotape depositions edited for effective presentation of the testimony to the jury.” (Id. at pp. 1104-1105.) The Science Applications court was concerned with technology costs in “staggering proportions,” observing if costs “are routinely awarded for high-powered technology, most parties will be unable to litigate.” (Id. at p. 1105.)

Almost 20 years have passed since Science Applications was decided, during which time the use of technology in the courtroom has become commonplace (including a technician to monitor the equipment and quickly resolve any glitches), and technology costs have dramatically declined. In a witness credibility case such as this, it would be inconceivable for plaintiff‟s counsel to forego the use of technology to display the videotapes of plaintiff‟s interviews after his beating, in the patrol car and at the sheriff‟s station, and key parts of other witnesses‟ depositions. The court in Science Applications was “troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages.” (Science Applications, supra, 39 Cal.App.4th at p. 1105.) This is not such a case. The costs at issue total just over $24,000, and the trial court specifically found the trial technology enhanced counsel‟s advocacy and was reasonably necessary to the conduct of the litigation. The court acted well within its discretion in allowing recovery of these costs.

***

A Nevada Plaintiff was recently awarded over $1 Million in trial presentation costs in a case worth in excess of $100 Million (see Cutting Costs in Trial), which may be reasonable, given the size of the matter and length of the trial. The good news here is that the Court is not locking in some arbitrary figure for the services, and neither should counsel. Actual costs will vary depending on several factors, including the amount of data (exhibits), special preparation needs (deposition video edits), demonstratives (graphics, animations, charts), the length of the trial itself, and of course, the work style of the trial team (long hours add up).

In his BowTie Law blog, Josh Gilliland shares, “I think Bender is an important opinion, because it recognizes the reality of the 21st Century. Human beings are visual learners. Trial presentation technology helps jurors (and judges) understand anything from complex issues to the credibility of a witness. Is such technology “reasonably necessary to the conduct of the litigation”? I say yes. Modern jurors expect to see facts orderly presented, with the factual dots connected to the jury instructions. Trial presentation technology is vital to meeting the expectations of jurors for effective trial advocacy.”

While there are still plenty of great excuses for going “old-school” in trial (see Why You Should NOT Use Technology in Your Trial), if you’re inclined to win one now and then, it could be time to reevaluate. With obvious value to all prevailing litigants, the decision in Bender v. County of Los Angeles is a significant step toward enabling and providing the benefits of technology to those who might otherwise go without.

Best Resource for Trial Presentation

What is the Best Resource for Trial Presentation? While I’d love to simply suggest something like “just call Litigation-Tech,” that might be overstating just a bit. It might be the right response in many cases, but searching for resources or information about trial presentation is dependent on the type of result desired.

The “W” words should come into play here: What, Why, Who, When, and Where? Are you an attorney in search of a proven and reputable vendor to assist with an upcoming matter, or a paralegal looking for some insight on the right projector and best trial presentation software available? Maybe you’re just interested in exploring the general landscape – gathering info on what’s going on and who is involved. With a setup like that, it may seem like there is no single right answer. The good news is that I believe there is an excellent answer, and that resource may be found by joining over 4000 others on the Trial Technology group on LinkedIn.

The group is made up of a wide range of legal professionals from law firms, government offices, and companies of all shapes and sizes, including attorneys, paralegals, legal assistants, graphic designers, videographers, court reporters, and even some professional trial presentation consultants. This is by far the largest group anywhere with a primary focus on trials and the technology that supports them.

While the actual scope of group discussions can be broad, the fact that “trial” connects with so many at some point is probably one of the reasons this group is so successful.

A recent poll on the group asked “What do you like best about this group?” The most popular response shows that it is an excellent resource of relevant articles, and a good place to ask and answer questions. So regardless of your specific level of trial technology interest, the Trial Technology group on LinkedIn is an excellent place to begin your search.

Cutting Costs in Trial

Paper v. Technology

One obvious place to save money in litigation might appear to be cutting out all of the fancy technology, along with its associated equipment and support personnel. While one could make a simple argument in support of that move, looking a little deeper can show that exactly the opposite is likely to occur – the client may actually spend far more to go “old-school,” using nothing but binders full of exhibits.

Technology can pay for itself

If you've been through even one trial, you are well-aware that the hourly time clock spins no faster than when it supports an entire trial team working long hours, often traveling to the venue and setting up a remote war room. It has been estimated that compared to a hard-copy exhibit trial, using technology can cut trial time by as much as 30-50%, and can increase the volume of evidence admitted and displayed by a similar amount. A recent award of $1.03 million in costs was granted in a classic courtroom battle of paper vs. technology. In this case, Plaintiff’s counsel shared, “I think we would have been here a lot longer without the technology to pull things up.” Technology can pay for itself.

Costs may be recoverable

When you prevail, many of your trial prep and presentation expenses may be included in your recoverable costs. While the example referenced above may be leaning toward the high end just a bit, with the total of verdict plus interest in excess of $100 million, (about 1%), it doesn't appear quite so excessive. At the close of a successful case (Plaintiff or Defendant), we are often asked to help clarify what to include in a motion to recover costs for things like graphics, trial prep, and in-court trial presentation. One thing is undisputed – If you don’t ask for it, you (or your client, actually) will be footing the bill. While you might not be awarded 100% of these costs, the majority of outside expenses are generally covered.

Malpractice claims can be costly

In the matter referenced above, Defendant’s counsel states, “Jurors can make decisions without the benefit of graphics and without trial technicians putting graphics on a screen.” While that statement may be true without any further qualification, one must also consider whether jurors might make better decisions when aided with the benefit of demonstratives and the ability to see the key text of each exhibit. One reader comment offers a final bit of food for thought: “Very good article, raises some interesting points about what one needs to do for trial, could open up the flood gates of malpractice for those that don't. Could make for interesting strategy discussions.”

Connected in Court

Sitting in trial earlier this week, it appeared the Earth was beginning to self-destruct. Panic spread quickly as trial team members from both sides all realized --- the Internet was down! Fortunately, I was able to feed our team from my iPhone Personal Hotspot. Not sure how/if the other side survived. In any event, this caused me to reflect upon just how dependent we are on various ways of keeping connected these days.

Litigation-Tech Los Angeles Office and The Biltmore Hotel

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It seems like sometimes there just aren't enough hours in the day to get everything done -- especially when you're in trial. Trying to keep up with email messages and phone calls can be a real challenge, in addition to most anything else not case-related. For those who are in trial frequently, no doubt you've witnessed the wrath of the Judge at some point as someone was caught trying to quickly thumb-type that important note. Or worse yet, maybe you've had the opportunity to enjoy the musical ring tone of someone else's phone. Or worst possible scenario, maybe you were the cause of one of these disasters. There are a couple ways to deal with this for the "gotta be connected, even in court" crowd.

First, ALWAYS turn off any sounds, including the vibrating alert. A buzzing device on a table can be just as noisy and distracting as a ringing bell tone. This applies to your phone, iPad, and even your laptop. Nobody actually wants to hear your Windows login music, or an alert that your portfolio value has just dropped by 10%.

Next, it's all about the device. If you were hoping to learn here how to make the Judge think you're not actually using your phone in court (when you are), you are probably going to be disappointed. Forget about your phone. Even if you hold it under the table to secretly type away, there’s something about your posture that makes it quite obvious to anyone (i.e., Judge, Juror, Bailiff…) what’s going on. In fact, a juror might view this as disrespectful, and that you have no concern for the trial. If they can’t do it, why can you? This is not to imply you need to revert to 1980 where none of us were in contact with anyone during trial. There are ways to make it work.

Laptop: Most current laptops do not have cellular data built in, but they do have wireless access. If the courtroom has a wireless network, it’s easy to hook up and go to work. Unless someone is looking over your shoulder (you can use a screen privacy cover), they will have no idea what you are doing. Just don’t chuckle and grin if you’re typing “LOL” in response to a joke. If there is no public access, you will need to provide your own hotspot. Don’t forget that with any public network comes a degree of risk. Maybe a little less in a courtroom that a coffee shop, however. Your IT staff may have some policies and equipment for you.

iPad: There are two types of iPad – one that is wireless only, requiring a network to connect with the Internet, and one that includes cellular data access. Be forewarned that an average data plan can easily be swamped when downloading large files, causing expensive overages. So, even though you have cellular access, you’ll want to connect to a wireless network whenever one is available.

iPhone Hotspot activation screen

Mobile Hotspot: There are a few basic types of hotspot. One is a standalone device, another actually uses your phone to provide a wireless network for your devices, and there are also wireless broadband “cards” that can be used in laptops. The cards are generally intended for only one device, while mobile hotspots and phones can support several.

Newer standalone devices may be configured to access firm networks. Using a phone with a hotspot (usually an optional service at extra charge) is nice, since you probably have it with you all the time anyway. Depending on your cellular network access (which can be sketchy deep in the bowels of large concrete buildings), you can generally do pretty well, feeding several devices at once. One point to note, however, is that if you use the phone to place a call, it will cut your hotspot off. Additionally, feeding iPads and laptops with your phone can gobble up a lot of bandwidth in a hurry.

Communicating in court with the trial team can also be done via email, chat systems, and of course, the tried-and-true sticky notes. 

Just Another Hawaii Sunset

© 2013 Ted Brooks

It can be easy to take things for granted. For example, our recent vacation in Maui forced us to endure day after day of stunning sunsets. We even began to comment each evening about "just another boring, beautiful sunset." Of course we were kidding, but some were clearly better than others. However, even the worst of them was still a stunning sunset in Paradise, which is nothing short of awesome. The photo above was my favorite (or at least my best picture of them), and we did appreciate each and every one.

The Recorder's Best of 2013 has just been published, and Litigation-Tech has once again been named as one of the Best Courtroom Presentation Providers. We are truly honored and appreciative of this distinction, setting us at the upper level of our profession. Yes, we have won other awards, and are extremely grateful and proud of each one. Like a beautiful Hawaiian sunset, it is something we will never take for granted. 

Even more importantly, we do not take any case or client for granted. While it could be easy to view some cases as "just another (fill in the blank) trial," the truth is that to the parties in the matter, it is likely one of the most important events in their life or business -- whether it is a high-profile trial, high-dollar matter, or even a relatively small case. That is why it is critical to exceed expectations whenever possible, and to engage with the same level of commitment as if it were your own case going to trial.

Regardless of which Courtroom Presentation Provider you choose for your next matter, make sure they really appreciate the value of each and every sunset.

Happy Birthday! Court Technology and Trial Presentation Blawg

Court Technology and Trial Presentation - Est. 2009

It's been 4 years since this blawg was started. If you look at the frequency of postings over the years in the list at the right of this page, you probably won't find any real patterns or consistency. Since work can be very demanding, all of my hobbies and outside interests will suffer at times. Work is a good problem to have to deal with. One thing is for certain -- I do enjoy writing, and I truly appreciate that you've taken some of your time to read and comment here.

In any event, in celebration of this anniversary, I will offer our current top 10 all-time articles. This list is current as of 7/14/2013, and is copied directly from the Stats page.

Best LinkedIn Groups for Attorneys and Legal Professionals (Part 1)

Aug 6, 2012, 5 comments

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Best LinkedIn Groups for Attorneys and Legal Profe...

Aug 13, 2012, 1 comment

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Print from iPad, iPhone, Android Phone & Tablets

Aug 22, 2012

10692

iPad Apps for Lawyers: iJuror, JuryTracker, Jury D...

Jan 24, 2011, 6 comments

8304

TrialDirector for iPad

Oct 4, 2012, 6 comments

7503

Apples to Apples: Two iPad Apps for Trial Presenta...

Jan 12, 2011, 5 comments

6520

12 Top Legal Sites You Should Check Out

Dec 4, 2011, 6 comments

5406

Samsung Nexus S: BlackBerry Replacement or iPhone ...

May 18, 2011, 16 comments

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iPad Apps for Lawyers: TrialPad 2.0 Reviewed

Jun 27, 2011, 7 comments

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Why You Should NOT Use Technology in Your Trial

Jul 30, 2012, 13 comments

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Finally, we have been informed that we are in the running in the top 3 for The Recorder's Best of 2013 -- California’s Best Legal Services Providers, in category #30 - Courtroom Presentation Providers. Please take a minute or two to vote. You may vote for just one category, or for all - that's up to you. Thanks for your support!

Five Tips to Keep Trial Tech on Course

This article was just published on The Legal Intelligencer, the oldest law journal in the United States. You can find the entire article here: Five Tips to Keep Trial Tech on Course

Before (or after) you read it, however, The Recorder is currently running California’s Best Legal Services Providers ballot, and you’re encouraged to vote! It is time once again to select the best the Golden State has to offer, and in particular, Best Courtroom Service Provider, which is found at question #30. Please consider voting for Litigation-Tech in this category – we are honored to have been selected in 2012. Although you are not required to vote in any other category, you might at least want to support those that you're familiar with.

Now, back to our irregularly-scheduled programming.

The five tips covered in this article are:

1. Management
2. Communication
3. Equipment
4. Personality
5. Experience

One thing I didn’t mention in the article is the company you’re working with. It can be difficult to find the right Courtroom Service (Trial Presentation) Provider, especially if you’ve never before worked with one. A large percentage of our clients had never before taken full advantage of using technology in trial, and none of our clients would try a case without us now.

If your provider is an individual, you may be risking more than you know. Likewise, if their primary business is anything other than trial presentation, they may be sending inexperienced “trainees” to cover your trial. Your client might not appreciate that you’ve saved them $50, but ended up with an unqualified trial tech disaster in court.

In any event, if you’re searching for an established and reputable Courtroom Service Provider, please consider contacting Litigation-Tech LLC. If you’d like to learn a little more about the company and its leadership, you may download Ted Brooks’ bio here. If you haven’t yet voted for California's Best Courtroom Service Provider, please do so now. And finally, if you haven’t read the entire article, here again is the link to Five Tips to Keep Trial Tech on Course.

Apples to Oranges (Blackberry to Galaxy to iPhone)

Let me begin by saying “thank you” to all of you early adopters of the iPhone. As a result, you have helped drive the development and refinement of what has become perhaps the best smartphone on the market. I don’t say this lightly, and I had a tough time deciding to move from my Samsung Galaxy II to the iPhone 5, rather than the Galaxy S4.

The iPhone has not always been the best overall device, in my opinion. In fact, just two years ago, I jumped ship from the Blackberry, and shared why I didn’t go with the iPhone at that time (see Samsung Nexus S: BlackBerry Replacement or iPhone Alternative?). The relatively short battery life, lack of a personal hotspot, and limited carrier choices were all key factors in my decision at the time. Throw in the Apple maps debacle, and my decision was validated.

The main reason for my recent upgrade was that the Galaxy battery life had diminished to just a few hours for a full charge – hardly enough to make a few calls, take a short flight, and read a few emails. In fact, the straw the broke the Samsung’s back was when I went for a bicycle ride (around 2 or 3 hours) and my phone died before I got home. This was after a full charge. Next day, I was in the store to replace it.

I really liked the features of the Samsung Galaxy S4, and went with the intention to replace my S II with it. The large screen (another point over the iPhone) and longer battery life were icing on the cake. Plus, if you need to, you can always get an extra battery or even a case with a built-in battery. You can’t just easily swap out your tired battery in an iPhone.

I was “comfortable” and familiar with the Samsung phones, but decided to take a look at the iPhone 5. The screen is smaller, but with the Retina display, it doesn’t really seem smaller. In fact, emails and websites are actually easier to read – at least for me. No doubt it has something to do with resolution and display layout, but it works. Since I have an iPad, using the iPhone also felt very familiar. Plus, many of my apps will work on the iPhone. More importantly, you no longer need to physically connect to your computer for updates via iTunes. Although we all have our own personal preferences, the iPhone just seems to work a little "smarter" than the Android devices. From the spell-check to the hands-free options, the iPhone just seems to be more "real-world" friendly.

Mophie Juice Pack

The deal-maker for me was a rechargeable Mophie Juice Pack iPhone case, which nearly doubles the life of your iPhone battery. After running the phone all day and draining the battery to around 20% or so, switching on the Juice Pack recharges the phone to between 87-97%, in my experience. You can also leave it switched on for longer life without the need to switch it, but manually switching it is recommended for best results. At just under $100, it is not a cheap add-on, but if you’re working long hours, it’s worth every penny.

How to Hot-Seat a Trial

Two new articles are featured in the June edition of Law Technology News covering the role of the Trial Technician, also known as the "Hot-Seat."

In "How Not to Crash," John Cleaves offers survival tips for litigation support staff who find themselves sudden occupants of the courtroom's "hot seat."

Next, Ted Brooks offers five important rules to follow when you are in charge of trial technology in "Survival Secrets."

Mr. Cleaves approaches the topic from the perspective of a paralegal or litigation support staffer, while I share a few tips, based on my years of experience. John (Cleaves) also has a great deal of experience in the Hot Seat, but for purposes of this piece, chooses to offer some relatively “low-tech” ideas for getting the job done when you don’t have enough time or resources to purchase and learn a bunch of new software and equipment.

I’m not going to rewrite my article here, but I can tell you that anyone who happens to find themselves assuming the role of a Trial Tech will quickly understand why it’s called the Hot Seat. If not for the pure stress of the job itself, add the expectation from everyone that nothing will go wrong – ever. Add to that the fact that once a jury gets accustomed to seeing an exhibit displayed within a couple seconds of its mention, what might have been an acceptable delay using hard copy exhibits will seem like a very uncomfortable eternity.

With that, one of favorite sayings with respect to trial technology is that “It’s not a matter of if something will go wrong, but rather when, how badly it will fail, and whether anyone else will even realize there was a problem.” Ideally, you fix the issue and move on, without anyone else knowing about it. While many relatively common issues are known and often discussed here and elsewhere such as the Trial Technology LinkedIn Group, you will need to be capable of figuring out problems in every trial – some of them rare and unique.

I will add that everyone from the Judge to the jurors, counsel, and your opposing Trial Tech can easily spot someone who is unfamiliar with and uncomfortable in the Hot Seat. Unfortunately, experience is the only way to get past this. I would strongly encourage anyone new to this to start with small matters and hearings, rather than boldly jumping in over your head, and perhaps having a negative effect on the outcome of your trial, or your career. Many law firms will handle smaller matters with in-house staff, but will bring in a professional Trial Tech for larger, more complex matters.

The role of the Hot-Seat Trial Tech is a full-time job, often requiring 12 or more hours per day. Needless to say at this point, it’s generally not a good idea to add these full-time duties to the responsibilities list of someone who already has a full day planned during trial, such as an attorney or paralegal assigned to the case. 

If you'd like to view these articles (or the entire June edition) in a nice online magazine format, here's a link to Law Technology News. A free subscription is required, and it's certainly worth far more than the cost of admission.