This change has impacted many industries whose goal is to advocate a position from advertising to political campaigns. Yet, trial lawyers have been reluctant to radically change the tried and true approaches that have been used for the past century. The time has come, however, for trial lawyers to recognize the handwriting on the wall and endeavor to tell their stories in the manner that jurors will better accept, understand and retain them.
I. WHY VISUAL DEMONSTRATIVE EVIDENCE IS USEFUL AND EFFECTIVE WITH TODAY’S JURIES
Studies show that 75%-85% of people today predominantly learn information visually while the remaining much smaller proportion rely predominantly on the auditory channel.[i] This trend has carried over to juries as well.[ii] . Today’s jurors are accustomed to spoon fed images and visual communication has become more prevalent and powerful. [iii] As one expert has described it: “Constant inundation of visual stimuli means that when appropriate visual images do not accompany the verbal story being told about the case, juror’s memories will fill in with the available images retrieved from personal archives. If lawyers don’t want jurors filling in the blanks in the mind’s eye with the most immediate images provided by the media, they need to adapt.”[iv]
A much quoted study sponsored by 3M that was conducted in 1986 by the University of Minnesota concluded that presentations with visual aids were 43% more persuasive than those without.[v] A follow-up study concluded that there were a variety of factors relating to the use of visual aids and their effects on both “perceptions of the presenter” and “components of persuasion”, defining the latter as: 1) attention; 2) yielding; 3) comprehension and; 4) retention. According to the authors, visual aids appear to positively affect the comprehension and retention components of persuasion in a significant way. This study also concluded that visual aids had some tangential positive effect on the perception of the presenter, meaning that the audience held the presenter in generally higher esteem and granted her greater credibility when visual aids were used. [vi] As another expert put it: “I’d consider visual aids indispensable in any setting where the goal is to make a persuasive presentation, if for no other reason than because people expect it.” [vii]
Another author refers to the enhanced expectations of jurors for technological answers to all of their questions as the “CSI Effect” referring to the popular techno-crime television series.[viii] In the crime series cases are solved each week with definitive evidence produced by DNA analysis or other high tech means. This effect has caused jurors in criminal cases to expect the same and when it is not presented they assume that “the absence of proof is a proof of absence” meaning that the technological evidence must not support the prosecutor’s case or else they would be seeing it. [ix] This effect is spilling onto the civil side as well as juror expectations to visually experience all of the evidence results in an even higher standard to meet for the party with the burden of proof. In other words, jurors today don’t only expect to hear the incriminating evidence, the want to see it too.
As Crawford and Morris put it: “For those of you who fancy yourselves to be ‘old dogs’ – not interested in learning ‘new tricks’ – you are at serious risk of being left behind. Stubborn refusal to embrace new and effective methods of persuasion for the sake of doing it your way, is nothing more than an unwillingness to reach the full potential of your client’s case.”[x]
Two recent high profile cases help illustrate the utility and effectiveness of the best form of visual presentation at trial, dedicated trial software such as Sanction and Trial Director. Shrophshire v. City of Walnut Creek, CA, was a case involving an Olympic diving hopeful who suffered a severe spinal cord injury when he collided as he was about to enter the water with a synchronized swimmer using the same pool. With the pool supervisor on the stand, the plaintiff’s attorney tried to have the witness agree to certain zones that the attorney had pre-drawn on a photograph of the pool to show where the lifeguards should have been and how the activities of the participants of the groups of pool users should have been segregated to prevent such a tragedy. The witness refused to agree to the zones the attorney had drawn making his prepared exhibit useless to make his point. Not to be denied, the attorney projected an unmarked picture of the pool that the witness identified as accurate and then using the annotation tools provided by the litigation software the attorney was able to draw in the life guard and zones of separation as the witness directed him. The zones drawn in during the testimony were different than those pre-drawn by the attorney on his exhibit but were equally damning to the defense case. Because the witness stubbornly refused to agree to the attorney’s exhibit and essentially collaborated with the attorney in creating his own exhibit on the spot, the exhibit likely received much more attention and credibility than it otherwise might have and likely contributed to the large award made.
Another example came in the recent criminal trial of actor Robert Blake. In that case the defense attorney wanted to attack the credibility of one of the investigating detectives and suggest that the murder weapon may have been planted where it was eventually discovered in a dumpster near the scene of the crime. First, the attorney established through questioning of the witness that the detective claimed to have never been anywhere near the dumpster on the night of the murder. Then using the case presentation software and a digital photograph of the crime scene taken before the gun was found, the attorney was able to enlarge the photograph using the zoom tool such that it clearly showed the detective leaning on the very same dumpster. The software allowed him to zoom in on the detective’s face with the dumpster clearly in the background and extract the confession from the detective - “I guess I was wrong” - with snickers heard from some of the jurors.[xi]
Below I will describe how trial presentation software similar to what was used in these two cases can provide a powerful tool to any attorney in proving her case at trial. Those that think that they are not technologically savvy enough to integrate technology into their repertoire may be surprised to learn that the attorneys in both of these cases only recently began using trial software at the time of each of these trials.[xii] First, I will provide legal support for the use of such visual aids at trial. Then I will review the evolution of trial presentation technology in the courtroom, followed by a more extensive discussion of the trial presentation software described above, how it works and its tremendous flexibility and effectiveness.
II. CASE LAW SUPPORTING USE OF TECHNOLOGY TO DISPLAY EVIDENCE IN THE COURTROOM
Trial technology will allow you to better display both real and demonstrative evidence for the jury to see simultaneously with the witness discussing the evidence. The rules for using this technology should really be no different than the historical rules governing presenting real and demonstrative evidence to a jury. Therefore, existing case law for use of real and demonstrative evidence can successfully be used to support your request to use trial technology in courtrooms today.
Demonstrative evidence is by definition only an aid to the jury’s understanding of information presented through other evidence in the case, and is typically not admitted into evidence. However, it still must be presented to the court for permission to use it and a foundation must be laid as to its helpfulness in understanding something similar in the case. For instance, In People v. Felder[xiii], a witness was shown a knife similar to the one he described being used in the crime, but it was not the identical knife. With a proper limiting instruction and the witnesses’ testimony about the minor differences between the demonstrative knife and the real one, the court ruled that it was an appropriate item of demonstrative evidence that would assist the jury. Today, digital photographs of a similar knife projected on a screen should only have to meet the same test of similarity and helpfulness to the jury.
Diagrams and maps have long been permitted to be shown to a jury as long as the item fairly represents what it purports to depict, a foundation that must be laid before it can be used. Flah’s v. Rosette Elec., Inc.[xiv] Once the Court permits the use of such a diagram as demonstrative evidence it becomes much more effective when displayed simultaneously to the jury through the use of trial presentation software or PowerPoint while the witness is describing it. The jury gains much more information from the exhibit in this manner, rather than using the old conventional method of having the witness describe what the diagram shows and then taking the time for the jurors to look at the diagram one at a time. Again, the principles are the same and the fact that a new vehicle is available to show the jury the diagram at the time the witness is describing it actually enhances the helpfulness of the diagram and should require no different treatment by the court.
When complex and voluminous records are entered into evidence an expert qualified to review and interpret such records may testify to a summary and that summary is admissible into evidence.[xv] The chart or summary is admissible so long as the material on which it is based is admissible. [xvi] Again, once the chart or graph is admitted into evidence, projecting for the jury a digital version of the chart while the witness explains its contents produces no additional evidentiary issues and enhances comprehension of the chart by the jury. For similar reasons, charts, summaries and time lines used only for demonstrative purposes to clarify argument based on evidence that has been admitted do not raise best evidence rule issues and are admissible subject to the court’s discretion, so long as they fairly represent the evidence presented. [xvii]
PowerPoint presentations can be very useful during opening and closing statements. Because PowerPoint is really just a digital blackboard, the rules for its use should be no different than the rules for using blackboards or flipcharts. [xviii] Blackboards and flipcharts have historically been appropriate for use by counsel and by witnesses for demonstrative purposes, both during openings and closings and also during direct or cross-examination.[xix] Whatever counsel could write on a blackboard or a flipchart should be equally appropriate when written on a PowerPoint slide.
Projecting deposition testimony for the jury to see, enlarged transcripts, video or a combination of both, is another powerful use of trial technology in the courtroom. CPLR 3117 Use of Depositions, provides in subdivision (a)(2) that:”The deposition testimony of a party or of any person who was a party when the testimony was given, … may be used for any purpose by any party who was adversely interested when the deposition testimony was given or who is adversely interested at the time that the deposition testimony is offered into evidence.”
Trial presentation software programs provide tools that make finding and projecting deposition testimony easy and quick. Again, there should be no difference between reading the deposition transcript and showing the transcript so the jury can read along, or showing a video of the witness testifying to the words in the transcript, other than having a more attentive jury when the latter two methods are used.
In sum, the publication of documents and photographs in evidence to the jury, the showing of demonstrative exhibits to help a jury’s understanding of the evidence, the reading of deposition testimony to the jury and the use of blackboards and flip charts to highlight argument and concepts for the jury have all been well accepted techniques for many years. Trial presentation software provides only a new way of doing all of these things in a way that enhances the jury’s ability to understand and retain the information. For that reason, courts should never prevent you from using this technology at trial so long as you satisfy the traditional foundational prerequisites each of these practices has historically required. In my experience, although some judges have been reluctant to adjust to something new when I proposed using new technology at trial, I can say with complete candor that even the most inflexible and intransigent judges quickly adapt and come to value the new methods as far superior to anything they had ever seen before.
III. EVOLUTION OF USE OF TECHNOLOGY IN THE COURTROOM
As stated above, use of blackboards for demonstrative purposes dates back to at least the 1950’s and probably before. When photocopy technology became entrenched in the late 1960’s and early 1970’s, it did not take long before poster-sized blow-ups of trial exhibits were prepared to allow the jury to see the exhibit more clearly while it was being discussed by a witness or the attorney during closing argument. Although this was a great step forward from the traditional method of reading the document to the jury or worse, passing it from juror to juror to read individually, poster board blow-ups are bulky and when there are a lot of them in use, easily get misplaced and out of order. Trial lawyers late in trials that used such props frequently spent long minutes looking for the correct poster board while the jury’s attention would drift from the point she was trying to make.
Photographic slides and transparencies were also frequently used at trial during this era. Slide transparency material was developed that could be used with a standard copier so that you could create transparencies in your office. This was certainly a step forward, but again, organizing hundreds of transparencies for a heavy document case was a battle that ultimately would be lost at trial slowing your delivery and distracting the audience.
The Document Camera or “Elmo”
The next big invention was the document camera or “Elmo” as it was famously referred to during the O.J. trial. These devices were truly superior at doing a number of things that were previously extremely difficult to accomplish. In a products case involving a small bolt that had cracked due to a metallurgical defect, instead of holding the small part up and telling the jury about it, the document camera allowed you to blow it up many times its normal size on a TV screen so that the jurors could actually see the crack you alleged was the defect. These devices were also great for displaying conventional x-ray, MRI or CT scan films and enlarging the most significant features on the screen. This was a far better method of displaying the image than the conventional shadow box even when you tried to put the shadow box right on the edge of the jury box and have the witness point out the relevant features on the image.
For radiology images and small physical evidence like the defective bolt example above, document cameras are still quite useful. However, using them to display documents was never ideal. Rather than the rectangular shape of a typical sheet of paper, the viewing field of the document camera is square, which makes it impossible to view the entire enlarged document on the screen at one time. The camera also reverses the image, which frequently leads to the image being upside down on the screen before it is corrected. Also, like transparencies, once you have shown a large volume of documents on a particular day at trial it becomes harder and harder to keep everything organized. So although the document camera had its benefits and continues to be helpful in certain situations, it has definite drawbacks in trial presentation.
PowerPoint and LCD Projectors
With the advent of laptop computers and LCD projectors, Microsoft PowerPoint burst onto the scene in meetings all across the country and soon the technology began to find its way into the courtroom. I first used PowerPoint at a trial in 1999 and was extremely excited by its potential. I continued to use it thereafter and to expand how I used it at each trial. I started to find opposing counsel spending valuable time during their closing arguments apologizing for not using it themselves, which I took as a sign of how effective they thought it was. But this technology had its costs in time and effort. As everyone knows, trying cases is a 16 to 20 hour a day job anyway, so adding a bunch of new tasks to be accomplished between the close of court one day and the start of court the next is never a welcome development if one values the benefits of sleep. However, a unique PowerPoint presentation had to be created for each witness as the order and content of the slides had to be tailored to the testimony as it developed the day before. For cross-examination this was particularly difficult as you would frequently have to prepare the presentation before the witness testified on direct, so you may not know beforehand all of the ways you needed to attack him.
Deposition testimony was particularly time consuming to use with PowerPoint, as you would have to scan the pages into individual image files and then place each one in a slide, highlight and enlarge the important questions and answers and then crop out the ones that were not important to making your point. As such, if you were surprised during direct with testimony you had not anticipated which was contradictory to what the witness said at the deposition, it was virtually impossible to make a new slide quickly enough to use it for impeachment.
Finally, there was a technical computer hardware issue that became obvious the more color graphics you tried to put into your PowerPoint presentation. Random access memory (“RAM”) is the feature on a computer that allows you to take data off of the hard drive or CD and load it into the computer’s “memory” so that it can be accessed instantaneously without the delay seen when data is taken directly off of a hard drive or CD. PowerPoint presentations with many slides containing many big file graphics were bigger than the RAM available with most computers. What this meant is that when you tried to move to the next slide in one of these massive presentations there was a 5-10 second delay before it came up. Now 5-10 seconds may not seem very long, but when you are trying to impeach a witness and keep the jury with you it can be an eternity.
Trial Presentation Software
In 2001 I received a call from a young woman who worked for a local copy company that was also selling various software applications to lawyers. She was skilled beyond her years because she got her foot in the door by telling me how much she had heard about my skills at using technology in the courtroom and asked for an appointment with me so that I could show her how I did it. Being the typical easily flattered trial lawyer I am, I agreed to show her the ropes.
Of course, the salesperson had no real desire to see a demonstration of any of my fabulous PowerPoint presentation skills. What she wanted to do was introduce me to a software product she wanted to sell me called Sanction. Once she did I was hooked like a kid in a candy store. I never looked back since.
What made Sanction (and its competitor Trial Director) so attractive was it solved all of the problems I had so intimately experienced trying to use PowerPoint as the exclusive vehicle for trial presentations. Had I not had those experiences I never would have fallen head over heels in love with Sanction that day the way I did. The first significant difference between PowerPoint and trial presentation software programs (Sanction, Trial Director) is that they accomplish the task of creating a visual presentation using entirely different technological means. When you create a PowerPoint presentation you essentially create a big electronic file with a “.ppt” suffix that contains all of the image files and text you have assembled in the order in which you assembled it. The size of your PowerPoint presentation file grows and grows as you cumulatively add more data into it. This big file is loaded when you start the PowerPoint program and you display the presentation through the Slide Show feature and the larger the file, the more of the RAM issue discussed above slows down your computer.
Trial presentation software, on the other hand, saves a series of links to the large image files and not the image files themselves to make your presentation. This may not seem like a big deal, but it is. Most people are familiar with the phrase “links”. Links are the addresses someone sends you by email that when you click on them you instantly jump to a web page or video on YouTube. By putting together a series of links to images you can create a presentation that runs fast and seamlessly regardless of the size or type of file or the number of images you want to use. You can link not only documents but also larger images such as color diagrams and digital radiology films without slowing down your computer. You can even link to large video files. So linking to data rather than copying and saving the data into a big cumbersome file was a major breakthrough.
But “links” were just the beginning. Sanction enabled me to put a document on the screen to establish that it was identical to the marked paper version that was put into evidence and then use the zoom feature to enlarge the critical text for the jury to see. This was a tremendous improvement over the cutting pasting and cropping I had to do to get that same document into a PowerPoint slide and isolate the critical text. With Sanction I could also easily display two documents side by side for comparison. It also allowed me to add documents and images to the presentation in seconds, as long as those documents and images were already scanned and linked into Sanction, something you always do so they are available when and if you need them. Sanction also allowed me to link to a digital file of a deposition and using a tool called “transcript manager” word search the transcript and find the contradictory testimony that I knew existed as soon as the words left the witnesses mouth from the stand.
But by far the greatest breakthrough Sanction provided was the tools it provided to make “video clips” of video-taped testimony and use these clips to impeach a witness with his deposition testimony rather than the laborious alternative of me reading the question and answer back to the witness. I will truly never forget the look on the face of the defendant doctor in the first time I ever used this feature. I had asked a question that the witness answered in a way that was significantly inconsistent to her answer at her deposition. Because it involved a very crucial issue in the case, I had prepared a video clip for just such an occasion. After I asked the preparatory question: “do you recall giving sworn testimony in this case and being asked the following question and giving the following answer…” I clicked the mouse and up on the screen popped the video image of the witness and out of the speakers came her voice saying the opposite of what she had just told the jury. It was one of those home run moments we all dream about as trial lawyers. But more importantly, it completely intimidated the witness. I could almost see her flinch each time I reached for the mouse after that, and she simply agreed to all of the rest of my leading questions.
So although there is still a very important role for PowerPoint at trial (discussed below), trial presentation software today is where you want to be until the next great innovation comes along as it almost surely will.
IV. TYPES OF HELPFUL SOFTWARE FOR TRIAL PRESENTATIONS
If trial presentation software is the end all and be all, then why do you need to know about any other programs? The answer to this question is that there are many other programs available that can enhance your trial presentation and parts of them can be incorporated through the trial presentation software.
Case and Document Management Software
Concordance, Summation and CaseMap are all powerful programs that will help you organize complex cases. These programs are not really competitors with Sanction and Trial Director, but really adjuncts. Concordance, Summation and CaseMap are programs that need to be utilized from the very beginning of a case. They provide a means of organizing, annotating and word searching millions of pages of documents. They also allow multiple team members to work together doing such annotations as well as recording important links to deposition testimony and other non-documentary evidence. They provide you with a blue print for what you will need for trial. If you use one of these programs you will have most of your scanning done prior to trial as they all work with scanned images in similar formats needed later for the trial presentation software. All you then need to do is link them into your trial program.
Programs that help create Timelines
Timelines are great visual demonstratives that can help orient a jury to the story you are telling in your case. Although they can be made manually with PowerPoint, there are programs available that allow you to make professional looking timelines easily and quickly. The one I use is called TimeMap and is a CaseSoft product. When you have completed your timeline using one of these software products, you can save the final product as a JPEG or other image file that can then be used in either PowerPoint or Sanction/Trial Director.
PowerPoint
Despite the problems outlined above for using PowerPoint for all of your trial presentation needs, it remains a great program for any planned presentation. Unfortunately, the only part of a trial that is likely to go exactly as planned is your opening statement if you have the burden of proof and go first. When you open second or last, you almost always will in some way want to react to the other attorney’s opening(s), so you will want to make modifications. Even if you do go first, the opposing counsel and judge may force changes in your presentation even before you can give it. If the change required is to drop a slide, this is pretty easy. If it is to modify the text in a slide, it takes more time than you are likely to have and usually results in having to skip the offensive slide rather than changing it.
I like to use PowerPoint to create slides that would be analogous to things I would write on a blackboard or flip chart. Like timelines created through TimeMap, PowerPoint slides can be saved as JPEG files and linked into Sanction or Trial Director. Thus, even for openings and especially for closings, I use Sanction and incorporate PowerPoint slides into the presentation to maintain maximum flexibility.
V. FEATURES AND USE OF TRIAL PRESENTATION SOFTWARE
As stated above, the crown jewel of audio-visual presentation at trial is trial presentation software. The software I am most familiar with is Sanction, so I will refer below to features of Sanction. However, Trial Director is very similar and does most, if not all, of the same things and pretty much in the same way. I am sure there are slight variations between the two products, but none that would be relevant to this general discussion.
The first step in using Sanction is set up a case file. This will save everything related to one case in one place so you can work on multiple cases and save your work. Once a new case file is opened, you then start loading all of your data into that case file, or put more precisely, linking the files together.
With regard to documents, I find it best to set up a directory for the scanned documents on my hard drive. It is also best to scan multipage documents into multipage TIF files, which is an option you should have on your scanner. You can scan documents into individual TIF files for every page, but this is cumbersome and tedious. If it is an extremely big document or set of records (e.g. portions of a hospital chart) you may want to scan the sections of the long record into individual TIF files for ease in finding things later(e.g., progress notes, lab reports, etc.). One very important issue to address early on is file nomenclature. Typically scanners will provide some sort of code name for the scanned file. You will want to rename your scanned files in some way that you can quickly recognize what they are. A name with a date is usually best. Whatever you choose, try to stay consistent or you will suffer later trying to find the right file quickly.
Once the scans are in the directory on the hard drive you simply open a window with Explorer, highlight the documents and drag and drop them into the Sanction “Document” folder in your open case in Sanction. There is also a separate folder for “Images” but this is really just for organizational simplicity, since files that contain documents or images can be saved in either folder. I usually save all of my photographs, digital radiology scan images, timelines and graphics in the Images folder.
You next need to perform a similar drop and drag process with your electronic transcript files into the “Transcripts” folder and your video files into the “Videos” folder. Both transcripts and videos must be in a certain formats to load and be usable. Videos have to be converted from DVD format to MPEG1 or similar format to work. This also greatly reduces the file size, which is another benefit of MPEG1.
Once you have loaded the transcripts into Sanction you can then manipulate them using the Transcript Search feature. This feature allows you to word search one or multiple transcripts from the same case at the same time. You can also create what are called text clips. This saves the text of specific questions and answers from the transcript into a clip which you can use for any purpose later, including impeachment.
The really cool part comes when you make the video clips to use for cross-examination and many other purposes. Before you can do this, however, there is an interim step you have to complete – synchronization. What this means is that the transcript has to be synchronized to the video so that you can use the transcript to make your video clips. Fortunately, Sanction has made this step easy and relatively inexpensive. By clicking the menu bar item “Video Services” and then “On-line synchronization” you are prompted to select and pair a video with a transcript for one or multiple depositions. You then choose how soon you want it, which determines the price, and the program scans the file and gives you the cost. When you accept it, using a credit card to pay, the program then strips the audio off of the video file (because transporting the whole video file would be slow because of its size and unnecessary since the audio is all that is needed for synchronization with the transcript) and transports it over the internet to the vender that does the synchronization. It also uploads the transcript file. You will receive an email a day or two later telling you that the synchronization is complete and you then open Sanction and follow the same process to get to the prompt to receive the synchronized transcript. It is then downloaded back onto your computer in the synchronized version and you are good to go.
Once synchronization has occurred, you are ready to create video clips. This is done with the “Clip Creator” tab on the bottom menu. You select the video you want to use and the left screen will load with the video and the right screen with the synchronized transcript. Clips are made by simply highlighting with your mouse the questions and answers on the transcript you want in the clip and then right clicking and selecting “create clip”. It will then prompt you to name the clip, something you will again want to put some thought into so that you use an understandable nomenclature as you may create hundreds of clips for a case. I have found using the name of the witness and a key word related to the import of that particular clip to be helpful, but you should use what works best for you. Because the synchronization is not always perfect, there are tools that allow you to slightly extend it to get the end of a word that was cut off or slightly shorten it to clip out the end of the prior answer could be heard at the very beginning of the clip.
Now that you have loaded all of your documents and images and created all of your text and video clips you are ready for the final step of Sanction preparation, preparing your presentations. This is done by going to the “Presentations” folder and creating a presentation for each witness and for opening and closing arguments. Then you populate each presentation by dragging the documents, images, timelines, video and text clips you want to use into each presentation and arranging them in the order you want to use them. Because you are really only dragging links, you can and will use the same document or video clip in multiple presentations. When I prepare my direct examination presentation I then coordinate my questions with my presentation for that witness so I know the order in which to arrange the items. Another advantage of Sanction and another reason why nomenclature is important is that Sanction permits you to jump around quite easily within the presentation if you need to either skip something or go back to something else. On cross-examination, for instance, I will create 30-50 video clips with key testimony I want to get from the witness. I may need to show only one or two of those because the witness does not deviate from the deposition more than a couple of times, especially after I use the first video clip to impeach him. Thus, the ability to skip the clip I do not have to use and move on to the next item is essential.
There is another great use of video clips and that is editing a video deposition of a witness who was not available for trial or a doctor you chose not to bring in live. When you synchronize the transcript, you can easily edit out objections or questions and answers to which the other side objected and the court sustained. Even better, you can make clips of the best testimony for your case that the witness gives and play them during your closing argument rather than the traditional method of reviewing with the jury what you recall the witness said. I also like to play the testimony of one witness for another witness sometimes either to show contradictions or support for a position, again to reinforce an important point.
The zoom and annotation features make it easy to modify an existing exhibit to enhance its meaning or simply enlarge the important text or other feature of the exhibit. This can be done either prior to showing your presentation or during it. I typically use the zoom feature on the fly and enlarge whatever is relevant from the entire page or image. I find this less likely to raise issues with opposing counsel and the judge since the first image on the screen is the one identical to the paper exhibit in evidence and then I enlarge what I want to focus on. You can also use the annotation features on the fly as the attorney did in the Shrophshire case mentioned above.
There are some caveats to keep in mind. There is so much you can do with Sanction that there is a tendency to do too much and create tremendously long presentations which eventually detract from your goals. Just like everything else at trial, the best practice is to start with everything you might want first and then to edit down to the essentials. The other lesson I can pass on from personal experience is to be sure that the links are created to your laptop hard drive and not to your network server. If you do the latter, which I did for a motion once, then when you get to the courthouse all of your images cannot be found, since you are no longer connected to the server that the links specify. I can say from personal experience that if this happens once it will never happen again. Practicing your presentation when you are disconnected from your server is the best way to be sure it never happens to you and what I do every time since this unfortunate experience.
VI. HARDWARE: WHAT YOU NEED IF THE COURT DOESN’T HAVE IT
According to ABA surveys, court systems are not rushing to equip courtrooms with the hardware needed to use new technological advances like trial presentation software. Many county courthouses in larger metropolitan areas may provide one or two “Courtrooms of the Future” in a building housing dozens of courtrooms, but by and large if you want to use this technology you will need to bring it in yourself.
What you need is a laptop computer loaded with the trial presentation software and all of your data for the trial, an LCD projector, a portable screen and portable speakers. None of these items are ridiculously expensive anymore as LCD projector prices have come way down. When my firm first purchased one ten years ago it cost $6,000. When we purchased another one last year it projected an image more than ten times brighter and cost less than $1,200. If you are planning on using a lot of video you may also want to purchase a portable hard drive to store it so you do not overwhelm the hard drive on your laptop. These devices have also come down in price significantly and can be purchased for under $100. Power strips and extension cords are also a must as most courtrooms were not designed with this technology in mind and electrical outlets are usually not plentiful. Since furniture in courtrooms is also usually sparse and rarely movable, a small portable table to set up on is also very helpful.
In addition to bringing in your own equipment, you also need to decide how to set up your equipment and screen so that the judge, jury and witness can all see it. In many courtrooms this is no easy task. When you know which courtroom is assigned in advance it is recommended that you go and figure it out before the trial starts and try a few different configurations to see which works best. Unfortunately, in bigger counties that have many courtrooms in short supply, for many trials you do not know which courtroom you are assigned to until the last minute so these decisions must be made on the fly. That is why brining contingency extension cords, power strips and portable tables is a good option – you never know for sure what you are going to find until you get there.
VII. CONCLUSION
Just like all of the tools that came before it, trial presentation software is not a magic bullet that will guarantee victory in all of your trials. The case is still going to be won or lost on the facts you are stuck with, your preparation of witnesses and for cross-examination of the other side’s witnesses. However, this tool is extraordinarily helpful in explaining your case to the jury in the visual way that studies show is more effective with today’s jurors. Obviously, I have not won every case in which I have used this technology. But jurors have repeatedly told me how helpful the visual part of the trial was to their understanding, and I am a firm believer that in this era I need all of the help I can get.
[i] Corker, W.R “Demonstrative Evidence in the Visual Age” Chapter 38, The Plaintiff’s Personal Injury Action in New York State, Higgins, P. Editor, NYSBA 2009.
[ii] Crawford, R. and Morris, C., The Persuasive Edge, Chapter 10 “The Power of Visual Persuasion”, Lawyers and Judges Publishing Co., Inc., 2006.
[iii] Pardieck, A., “The Three Cs in Using Visual Aids to Tell Legal Stories, Communication, Credibility and Central Image”, The Jury Expert, September 2008 1-5.
[iv] Id.
[v] Vogel, Dogulas R. (1986). “Persuasion and the Role of Visual Presentation Support: The UM/3M Study”. Working Paper Series.
[vi] Morison, J. (1998) “The impacts of presentation visuals on persuasion.” Information and Management, 33, 125-135).
[vii] Rochelois, L., “Time to Rethink 3M?”, The Jury Expert, July 2007, 8-9.
[viii] Mathews, R. “The ‘CSI Effect’ in Civil Cases as Well as Criminal Ones”, The Jury Expert, June 2007, 10-11.
[ix] Id.
[x] Crawford, R and Morris, C., supra, 220.
[xi] For an excellent article summarizing these and other cases in which trial technology played an important role, see Brooks, T., “Jurors and Technology in Trial: What Were Once Vices Are Now Habits”, The Jury Expert, Vol. 21, Issue 3, (2009).
[xii] According to Ted Brooks’ article, M. Gerald Schwartzbach who defended Blake had never used or even seen the software used until the jury consultant he hired in the Blake case suggested it. Bill Smith of Abramson, Smith and Waldsmith who represented the plaintiff in Shrophshire was also a relative novice with the equipment at the time of that trial.
[xiii] 182 AD2d 495, 496 (1st Dep’t 1992)
[xiv] 155 AD2d 772,773 (3d Dep’t 1989).
[xv] See Ed Guth Realty, Inc. v. Gingold, 34 NY2d 440, 451 (1974); People v. Weinberg, 183 AD 2d 932, 934 (2nd Dept. 1992).
[xvi] Id.; see also, Richardson on Evidence, (11th Edition) Section 10-107, page 726-727.
[xvii] People v. Ferraioli, 101 AD2d 629, 631 (3rd Dept. 1984); Johnson v. Calvin, 145 AD2d 846 (3d Dep’t 1988); United States v. Oshatz, 912 F.2d 534, 543 (2nd Cir. 1990) cert. denied, 500 US 910 (1991).
[xviii] Corker, W.R “Demonstrative Evidence in the Visual Age” Chapter 38, The Plaintiff’s Personal Injury Action in New York State, Higgins, P. Editor, NYSBA 2009.
[xix] See Haley v. Hockey, 199 Misc. 512 (Sup. Ct. Jefferson Co. 1950); Carroll v. Roman Catholic Diocese of Rockville Centre, 26 AD 2d 552 (2d Dep’t 1966).
