Monday, November 9, 2009

Trial Technology: Be Prepared

The tip staff opens the door and announces that the jury is entering the court room. Everyone stands, some hastily others regrettably. And then there is always that one person attending the proceeding that looks nervously around not sure what to do. The jury marches past the assembled parties like toy soldiers forced to play a game they have little interest in. Then one by one they take their preassigned place upon the weathered wooden chairs in the jury box. Those chairs have seen hundreds if not thousands of trials. And unfortunately they are just as uncomfortable now as they were forty years ago. Then as if almost on cue the judge enters the room after everyone is seated so they can rise again to acknowledge his or her attendance. The jury is sworn and the judge begins to explain some preliminary instructions to the panel. Depending on the charisma of the judge this is akin to a lobotomy or an enjoyable experience for the jurors.

In the background unknown to the jury is a paralegal frantically working on some last minute exhibit. The request came in literally the morning of trial to create a PowerPoint for the opening. The judge has little patience already because of other delays and administrative issues. The case team looks nervously at their paralegal for any sign the PowerPoint is ready and are met with a blank stare. The judge asks counsel to start their opening and they have no choice but to proceed without the PowerPoint. Fifteen minutes later the paralegal has made the requested PowerPoint. But our trial attorney knows it has not been quality checked and cannot take the risk so her exhibit is basically useless. Maybe they could use some of it for closing…

Has this ever happened to you? I know my example may be outlandish in the realm of trial presentation applications. That said I just wanted to point out how technology can be neutered by lack of preparation. While this exact scenario has not actually happened to me similar circumstances have. I have personally seen a shift in recent years of unwillingness by case teams to prepare themselves with technology. Just recently I was in a trial which was scheduled to last two months. The sheer volume of my database on the defense side was astounding. Plaintiff’s counsel had just as many documents since most of the collection was their production data. They retained a trial technologist for their case presentation and it was obvious it was a last minute decision. Not only were they not in synch but their presentation was not seamless by any stretch. Was the consultant to blame for this or lack of preparation? In my view this was the case team who dropped the presentation ball.

Regardless of how a database is numbered or indexed complete lack of familiarity is a presentation killer. Sure we all have war stories of shooting from the hip for an entire trial - it just goes with the territory. That may have been exhilarating and even downright epic if you pulled it off without a hitch. However it is absolutely not the way to use technology in trial where a slip could potentially cause mistrial issues. Therefore it is important that you educate your case team about the importance of preparation.

A trial consultant should be included in some of the trial prep meetings the week before trial at the minimum. This is a chance to learn personalities, quirks, iron out database issues, identify hot docs, etc. In addition, the trial consultant should be present if possible for any expert meetings. If a case team’s experts are not comfortable with the technology it will be very apparent to the jury. That said the twenty something’s on the jury panel who use technology for EVERYTHING will be very unforgiving. Remember they expect to see media used in the courtroom and for it to flow and work correctly.

In closing the lack of consultants in trial prep meetings has direct correlation to the bottom line. In this economy I can completely understand the idea of staying in budget or watching all potential costs. However not including your experts, which also are your retained IT professionals in trial preparation meetings, is very risky. If those twelve people in the jury box are paying attention lack of preparation whether technology or not will spell a case team’s undoing. Credibility in the courtroom is nigh impossible to recover once it has been lost. Seriously folks, watching a seasoned trial lawyer fumble with a laser pointer is just embarrassing. All the “I don’t use technology much” cliches are so 1990…don’t let your case team use them. The jury is not laughing with you they are laughing at you!

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