TrialDirector, a trial presentation software package produced by InData, is an indispensable aid to the presentation of electronic and other evidence at trial. There is a reason why this product has claimed the majority of the market share for trial presentation software for more than 10 years: It can actually make it interesting for a jury or other fact-finder to listen to a witness testify about corporate balance sheets, long-ago emails, and other documents that can be fatally boring and lose the attention of the fact-finder.
by Ken Lopez Trials are structured in familar segments – opening statements, direct examination, cross-examination and closing arguments. Of those events, I believe that opening statements deserve more emphasis than any other portion of the case.
The choice of a trial graphics firm is one of the most important decisions that a trial lawyer can make. Since experts widely agree that about two-thirds of jurors and many judges prefer to learn visually, it can literally make the difference between winning and losing your case. However, many lawyers still use the wrong approach to the selection of a trial graphics consultant. For example, they may choose a provider based on familiarity (“I know someone who does graphics . . .”), price (“the client has a tight budget . . . “), or proximity (“they’re right around the corner . . . “). There are better ways to choose a consultant. Think of hiring a trial graphics provider as similar to the hiring of an expert witness. If you are hiring an expert witness, you are delegating a portion of the case to someone who has specialized knowledge and experience that you may not. You would hire an electrical engineering expert witness to discuss the workings of a patented device. Similarly, you should hire a trial graphics provider, who is an expert in the field of information design, to create effective trial graphics for your case.
by Ken Lopez As litigation consultants, jury consultants, trial technology consultants and litigation graphics consultants, we have the opportunity to share our decades of experience in over 10,000 cases, working with litigators from all major law firms, with our litigation clients every day. Clearly, this is a valuable service, and I believe great litigators become better litigators for having worked with our firm.
Since most complex trials deal with issues and subjects that are well outside the ordinary person’s experience, a trial lawyer’s job, and by extension that of a litigation consultant, is to help the jurors understand these topics. One of the best ways of doing this is by using analogy and metaphor courtroom exhibits – in other words, by showing how the complicated scientific or legal concepts in the trial are similar to things that a juror sees every day.
by Daniel Carey, Senior Trial Technician, A2L Consulting I'm in Chicago and halfway through a one-month arbitration. Seated across from me is opposing counsel. Steve Jobs would have been proud. In the conference room where the arbitration is being held, four out of five attorneys are using iPads, propped in both landscape and portrait, all with Bluetooth keyboards. A Bluetooth keyboard is a wireless keyboard, either similar to a normal wireless keyboard or a pocket-size device that projects a full-size keyboard through infrared technology onto any flat surface. In my last case, in Fairfax, Va., our counsel placed his iPad upon the ELMO (a device normally used to digitally project hard copy documents). The judge asked on the record, "Do you have an app for that?" There is an app for nearly everything these days. The world has changed, and so has my work as a trial technician. As you probably know, a trial technician (sometimes called trial consultant, trial tech or hot-seat operator) goes from trial to trial (or arbitration or hearing) providing litigation support services to the trial team. Specifically, I am normally responsible for: building the exhibit and document database prior to trial; cutting deposition clips and syncing them with a transcript; working with counsel to prep witnesses to work with an electronic presentation; setting up the war room and courtroom with electronics; working to finalize the documentary and demonstrative presentations; running the electronics in the courtroom so that any piece of evidence is accessible instantly; making on-the-fly demonstratives to be used with a witness on cross; running the demonstrative and documentary evidence presentation; All of these tasks ordinarily need to be done on little sleep, and in the trial technician profession, we are not allowed to show stress – ever. In fact, our jobs as trial technicians are to absorb stress. The same is true for technological change in our business. It is inevitable, and it is something that we must absorb. The iPad is bringing rapid change just as PowerPoint once did. It will not be long before jurors are given iPads to use throughout trial (Facebook-disabled, of course). As Peter Summerill, a Utah attorney and author of the MacLitigator blog, has written, “At trial, the iPad really shines. Trial technology should be transparent. This means that it should not appear to the jury as (1) overly flashy; or, (2) a complete headache and a distraction to the attorney. Apple has created a product which facilitates presentation of evidence without getting in the way and does so in a completely unassuming fashion.” Over the last year our technology team has pioneered ways to publish ebriefs on an iPad and to view all case documents and proposed demonstrative exhibits via an iPad app. Now I am seeing iPads spread quickly into courtrooms and arbitration rooms around the country. It is an exciting time, and it is a great time to be a trial technician and a great time to try cases.
Many litigators have developed the excellent practice, while preparing to try a major case, of running all or some their case before a mock jury and then debriefing the jury to see what worked and what didn’t, and to fine-tune their trial presentation accordingly. A mock trial is an excellent investment of money and time when the matter is large and significant enough to permit it. Not only can you test mock jurors’ reactions to alternative arguments and themes but also their reactions to the trial graphics you are considering for trial. As we found in a now well-known three-year study about the differences in the way litigators and jurors naturally communicate, more than two-thirds of jurors prefer to learn visually, and only a very small percentage prefer to learn by only listening. Until recently however, most mock trials tested only arguments, themes and sometimes some rudimentary demonstrative graphics. Increasingly however, we are setting up mock trials, testing alternative arguments and themes, AND we are creating sophisticated trial-ready litigation graphics for BOTH sides of the case. For the right case, this approach offers a more accurate predication of how the entire trial presentation will be received. It is a mock trial best-practice.
Most people, when they think of trial graphics, focus on exhibits to be used at trial. But graphics can also be used in motions and briefs presented to judges, even if jurors will never see them. After all, if you are using graphics to make your argument or tell your story at trial, why not use them at an earlier stage to make your argument convincingly in your brief?
In our 16 years in the trial presentation business, and after consulting on more than 10,000 cases, we still hear litigators concerned that their trial presentation/litigation graphics might somehow look “too slick” and will distract the jurors, or will somehow focus attention on the relative wealth of our client who is able to afford “fancy graphics.” In the early 1990s, this was a valid question. No one had used PowerPoint, no one had a cell phone – let alone a smart phone -- few people had personal computers, and most of those had black screens with green text. That is no longer the case. Technology has penetrated into every part of the United States and indeed into most of the world. A 2011 report from the Pew Research Center’s Internet and American Life Project indicates that 85 percent of U.S. adults own a cellphone, 52 percent own a laptop computer, four percent own a tablet, and only nine percent do not own any of these or other devices covered in the study. Those numbers will only increase. According to Robert Gaskins, the creator of PowerPoint, more than 500 million people worldwide use PowerPoint, with over 30 million PowerPoint presentations being made every day. Trial consultant Robb Helt, at the end of a trial in rural Arkansas, was able to talk with the jurors about the use of trial presentation technology/trial techncians in their just-completed trial. Helt found that the theory that jurors are uncomfortable with technology had been “blown away” by this “down home” jury. These jurors were not only comfortable with trial presentation technology – they expected to see it.
Litigation graphics can be especially useful in aviation cases. Nearly every juror has been an airline passenger at some point, and jurors know that while most flights are uneventful, mistakes committed by airline employees or others can result in serious injury or death. A good trial exhibit will illustrate exactly what happened on the flight and will properly evoke people’s concerns about flying, without being improperly inflammatory. For example, in two high-profile airline trials in the 1990s, using only the technology that was available at that time, we produced highly persuasive trial animations and other litigation graphics.
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