The use of trial technology has seen exponential growth over the past few years. Social media and the constant sharing of ideas certainly have assisted to close gaps which existed in the past. It is indeed rare to find the best in breed using last year’s tech in a high stakes trial. However it remains something litigators should be considering when preparing for trial. Certainly some dated technology is still useful but it is always wise to continue investigating proven and industry accepted current tech.
Often budget constraints, busy schedules or just plain ignorance of current tech is the culprit for many case teams. With that foundation in mind many smaller firms turn to a vendor. In theory in order for the vendor to remain competitive they must monitor the technology lifecycle very closely. Unfortunately that is not always the case when retaining a vendor. Very often what is being paid for is indeed dated or obsolete technology. Therefore it is wise to ask questions, get references and compare the tech being used to the vendor’s competitors.
Years ago I was involved in a two week trial just when trial presentation software had started to take off. Both my case team and opposing counsel were still using document cameras as a crutch. We both retained a vendor to provide us with our own ELMO and projector. Unfortunately the vendor our team hired provided us with outdated tech. The difference between our opponent’s presentation and ours using our respective equipment was glaring. Our images were grainy, dark and just anemic by comparison. By the end of the second day we made an arrangement to split costs with opposing counsel and shared their equipment. Don’t be fooled by fancy sales pitches and slick advertising. Do the legwork and make sure you are getting the best equipment and software to assist with presenting your client’s case.
On the law firm side of things it remains imperative for the litigation support department to be familiar with new technologies and trends. Even if trial presentation remains something which is outsourced case teams often rely on Lit Support for advice on whom and what to use. If Lit Support is involved in trial presentation work then the correct budgetary allotments need to be allocated to insure the firm is not behind the proverbial eight ball. Many practices which settle most of their cases often fall victim to the trial technology lifecycle. When making it to the big stage there is nothing worse than snickering jurors because the tech is outdated, malfunctioning or inoperable. The bottom line is making sure the technology your team is relying on has not been superseded by something more reliable and visually compelling. To quote McNealy, “Technology has the shelf life of a banana.”
Over the years I have been both entertained and yawned to death by various opening statements. I have always thought the opening really sets the tempo for the rest of the case. Far too often they are exercises in complete boredom or just thirty minutes of chaos. There is an overused adage about first impressions which rings true when facing twelve decision makers. Below I have compiled some tips which I believe are helpful for both the veteran litigator and the greenhorn.
Opening Tips
Keep the cue cards and notes to a minimum. If you have to glance at your notes occasionally to make sure nothing important is glossed over that is fine. However holding your notes and reading from them makes you look like a newbie and unprepared.
Never make evidence promises to the jury during your opening that you cannot deliver on. Don’t think they will remember? Is that really a chance you are willing to take on your client’s behalf? They will remember and the credibility of your case will be tainted in the deliberation room. Additionally you may have opened a door that opposing counsel can drive a truck through in their closing.
Don’t fumble with exhibits. If you have planned to show the jury something then make sure you are prepared. Digging through a banker’s box, scouring digital images or trying to find some elusive page in a huge text all look bad. Have it ready or don’t use it.
Avoid PowerPoint as an Opening tool. Anyone who says otherwise is giving you advice from ten years ago. OK so now your notes are on a big screen and you are reading them. This is not how to engage the jury with technology. Use trial presentation software and stay dynamic rather than static. Get in and get out keeping the focus on the jury.
Don’t dress in outlandish garb with enough jewelry to open a store right in the courtroom. You may think those 10lb gold cuff links look good with all ten Liberace rings but the jury may have other perceptions. Keep it simple and professional. You want the jury concentrating on the theme of your case and not your attire.
Shy away from courtroom drama phrases like “the evidence will show” because they are simply overused and boring. Stick to your theme and just present the facts of the case. Be engaging and keep the jury interested with your presentation.
Think visually and use analogies whenever appropriate. Give the jurors anchor points for their memory and not just verbose blobs of fact. You may think you sound smart but you are putting them to sleep.
Don’t go over the top when describing injuries to the jurors. This is almost guaranteed to assault the senses and runs the risk of anger, disgust and other unsavory emotions. None of which you want directed at you or fed into an ambulance chaser moniker. Get in and get out and don’t desensitize your jury. Let the experts deliver the injury knockout punches.
Keep it short and crisp. Anything else potentially will have your jurors wondering when the madness will end. Remember the mind can only absorb as much as the seat can endure.
Look at the jurors – each of them. They will not pay attention if you are speaking to the wall, ceiling, your shoes or a pile of notes.
I finally had an opportunity to sit down and blog! Over the holiday break I tried very hard to unplug for a few days and it did me a world of good. During that time I thought back to the evolution of technology I have used in the courtroom over the past fifteen years. It seems like just yesterday I was lugging a desktop tower and full sized computer monitor to the courtroom. I recall very clearly the loud and obnoxious sound the fan made when I was trying to playback a video file so big it needed its own zip code. The USB flash drive on my current keychain has more storage space then that old desktop!
As fun as recalling the war stories of old tech may be what the future potentially holds is much more interesting. Our jury pool is very quickly changing with the addition of younger people and the exit of technology curmudgeons. Our new jurors are addicted to social media, smart phones and invigorated by technology which is interactive. Appealing to these jurors will soon be difficult with static presentations such as PowerPoint or worse an archaic flip chart and penmanship which needs archeological intervention to decipher.
Below I will briefly explore four areas which I believe will find their way into the courtroom. Anyone of these areas could potentially become the next big thing for trial presentation. My basic ground rule is the technology must assist the jurors to absorb and understand. Otherwise you are left with an expensive endeavor which did more harm to the learning process then good. As our jury pool changes new presentation technology will not be a distraction but rather expected.
3D
With the release this past year of the first wave of 3D televisions a light bulb went off for me. One of the biggest barriers with presenting video and photo to a jury is always the lack of depth perception. Depending on the case and subject matter a complicated animation may need to be rendered just to recreate that loss of content. Or worse a physical model (although tactile is good) is used and depending on the judge it never makes it into the juror’s hands. Nothing like a squinting juror as they attempt to see the partially obscured model an expert is referring too.
How cool would it be to show the jury a 3D video right after the lunch break! Their stomachs are full of food and they think they will just dose off during some boring video. Then counsel passes out 3D glasses and suddenly our jury is awake, having fun and ready to learn. OK, so that probably would not work depending on the court venue but autostereoscopic enabled screens would. Autostereoscopic displays are able to provide depth perception without the hindrance of specialized headgear or glasses. The potential for learning and “taking the jury there” are endless with these 3D displays.
The autostereoscopic displays have already been designed and retail for about $20,000. Drop in the bucket, eh? It really is nothing if you think how fast the technology will plummet in price. By comparison in 2003 a 40” LCD TV cost roughly $9000. Compare that to the low price of $500 in 2010 and it just proves my point.
Kinect
As soon as I saw the commercial for this I was enthralled. Admittedly the technology is in its infancy and apparently the sensor is riddled with accuracy issues. The technology is based on gesture recognition so you can imagine the possibilities already in the courtroom. Considering the current form is able to track up to six people I see no reason why accuracy could not be improved for just one user.
Imagine an expert teaching the jurors from the witness stand or an opening statement aided with this technology. I think a compelling way to use this tool would be to control an avatar for demonstration purposes. The witness could physically recreate a situation with an environment that is tailored to the case. The benefit here is the jury would see the witness and the avatar go through the motions. I think from a presentation aspect it would be very helpful for the jurors to understand both physical movements and environmental or case theme relationships.
Touch
This is the one area of technology which I believe could be integrated into court room presentation sooner than later. Most of us are already using annotation capable monitors on the witness stand. There is no reason why we could not take that step further and introduce this touch technology into trial presentations. This would allow a witness to enlarge, flip and move key photos or documents around.
I would venture to say that most people are already using a touch capable device every single day. It is not beyond the realm of belief to consider this technology being used in synergy with various types of presentations software. Windows 7 Touch and a touch sensitive screen are already allowing this to happen. We have not even scratched the surface of how touch will make our lives easier as presenters well into the future. Move over mouse and traditional keyboard!
Laser
This one is something to get very excited about. This technology brings us one step closer to full blown 3D laser holograms in the courtroom. OpenLase is an open-source real time laser graphics project which is shown in the video below.
Will this eventually be mixed with gesture technology to give us Ironman type presentation capability in the courtroom?
The possibilities are just mind boggling to consider. Just gauge how fast science fiction of yesterday has become the technology of today. I recall watching Star Trek as a youngster and thinking how cool Kirk’s flip open communicator was. Smart phones do that and so much more already! My Nostradamus prediction is ten years and jurors will be considering holographic evidence.
In closing I just want to challenge everyone to think about how technology will continue to change and enhance visual communication. This is especially true in an environment such as a courtroom with an audience composed of jurors. Those twelve people need to absorb and understand some complicated concepts often in a short time frame. Any technologies which make this learning process easier are a leap in the right direction. How Kinected will you be?
