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.
Expert witnesses can be an extremely valuable portion of your case. If they are well-prepared, convincing and convey a clear, uncomplicated message to the jury, their testimony can lead directly to a verdict in your favor. If they are unconvincing and don’t communicate well, they are at best useless and at worst damaging to the case. The essential problem is that expert witnesses – whether they are testifying on engineering, scientific, financial, or other issues – tend to be very intelligent and knowledgeable. At the same time, however, they are prone to using terms that are well above the jury’s experience and educational levels and thus these experts are prone to be dismissed by some jurors as ivory-tower types who have nothing useful to say. We believe our firm plays several important roles helping expert witnesses get prepped for trial. Since our goal is winning by telling a clear and convincing story, the value of expert testimony must be maximized in each case. Expert witnesses are an essential piece of the litigation persuasion puzzle. Here are our seven tips for preparing expert witnesses and expert testimony to the best effect possible:
Discovery disputes have always been a staple of litigation. And now that electronic discovery has pretty much supplanted the old-fashioned discovery of paper documents, the disputes have only become more complicated and more bitter. As a result, our firm is increasingly called upon to create courtroom presentations for discovery dispute hearings. In the past ten years, e-discovery consulting firms have come to dominate the litigation support field, providing their expertise in a rapidly changing and highly technical field. That is not the only new development in this field. First, many law firms that are representing clients in document-heavy pieces of litigation have begun to hire “discovery counsel,” law firms that specialize in discovery alone and don’t promote their expertise in other areas of law. One such firm says on its website that it devotes “all of our resources to the successful execution of document collections, reviews, and productions.”
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.
One of the most important jobs of the trial lawyer and of the litigation consultant is to make highly complex and technical issues understandable to the average juror who does not have a scientific, engineering or technical background. In technology cases, especially patent cases, using demonstrative evidence is normally a good tactic. Here's why. The trial lawyer has spent months or probably years delving into every aspect of the case, and by the time it gets to trial, even the most arcane subjects can appear simple to him or her. Of course, that doesn’t mean they are easily understood by the general population of which the men and women in the jury box are a representative sample. Think of the challenge as needing to explain a complicated subject to a kid or to your grandparent; it takes creativity (and visual presentations - e.g. demonstrative evidence) to make the concept digestible to all audiences.
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.
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.
Electronic briefs (e-Briefs) made their first appearance on the legal stage in the 1990s, but today’s e-briefs are far ahead of their predecessors in terms of technology and usability. E-briefs are electronic versions of ordinary paper-based court filings. But instead of providing lengthy, thick and repetitive appendices and materials at the end of the brief, a lawyer filing an e-brief simply inserts hyperlinks to attachments from the main document. This has many advantages, and surely at least one of these advantages changes everything you ever knew about ebriefs.
by Ken Lopez Quite often, the subject matter at issue in a major trial is very complex and technical and is not intuitively obvious for a jury composed of laypersons, or even a judge, to understand. In fact, that’s why trial consulting companies like us emerged in the early 1990s – to help lawyers explain in a clear visual manner what’s at stake in a case, so that judges and jurors will be able to understand the facts and make a well reasoned decision. As a Texas trial lawyer has written, “The typical jury has a 14th-grade education, a 12th-grade comprehension level, and a 9th grade attention span. The implications of this are important in presenting scientific or technical information to a jury. For one thing, it means you cannot assume the jury will have any pre-existing knowledge or understanding of the information you are trying to convey, particularly if it involves a scientific or technical matter.” In cases involving product liability, patents, the environment, antitrust, and other areas of law, courtroom presentations ranging from the most basic photograph or chart to the most complex computer-generated presentation have been a staple for sophisticated litigators for decades.
by Ken Lopez No trial presentation exhibit specialist can perform any better than his or her tools. Although the judge and jury aren’t usually aware of what software the trial consultant is using, the choice of presentation software is essential to the success of the consultant, and ultimately to the success of the case. Over the last decade, presenting demonstrative evidence has usually meant using PowerPoint. In the hands of an expert trial consultant, PowerPoint is an extremely flexible tool. As we said earlier this year, for talented information designers, PowerPoint is a blank canvas that can be filled with works of presentation art. Among major law firms, PowerPoint still maintains nearly a 100 percent market share. After all, if something has been shown to work over and over again, there is every reason for a trial lawyer to continue using it rather than trying something new and unproven.
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.
[See updated 2013 article by clicking here: 21 Ingenious Ways to Research Your Judge]
As litigation has become more complex and technology has advanced over the years, a new profession has emerged – that of trial technician. This profession is relatively new in the legal marketplace, so much so that the title still varies considerably: These individuals can be called trial consultant, courtroom technology specialist, hot seat operator or simply trial tech. By any name, trial technicians perform three key litigation tasks: Organizing and preparing documents, video and other evidence to be used at trial. Setting up the war room and courtroom electronics consistent with local court rules. Running the trial presentation software and equipment during trial so that trial counsel can see any document, video or exhibit on a momentʼs notice and so that the presentation runs so flawlessly that the fact-finder focuses only on the evidence, not the method of presentation. Excellent trial technicians are not easy to find and are rarely available on short notice. Animators at Law has offered trial technician services to litigation teams around the world since the mid-1990s. This article summarizes some of what we have learned in 16 years, but, for a more comprehensive 20-point pre-engagement checklist, I encourage you to download our free whitepaper: 20 Things You Must Know Before Engaging Your Next Trial Technician, Trial Consultant or Hot Seat Operator. There are several key considerations to appreciate when hiring a trial tech for your next litigation matter. First, quality varies widely, as does price. One should expect to pay between $125 and $400 per hour with an average rate of $200 per hour. Hours worked per day will usually be between 10 and 20 during trial. To help trial teams manage cost predictably, our firm recently pioneered flat rate pricing for trial technician services. In selecting a trial tech, there is no substitute for real courtroom experience. Experienced trial techs have survived technology failures, power failures and weather-related failures many times over. Great trial technicians have successfully run dozens or hundreds of trials and hearings and can provide the names of those cases and names of the attorneys involved. When interviewing, as you would for any vendor, check at least three references. Great trial technicians are often in the center of the court but are never the center of attention. Part of the trial tech’s skill set must be an ability to comfortably disappear into the background. When he or she is doing the job right, no one is looking at him or her. Outstanding trial technicians must be true Renaissance technology people. Not only must they be able to authoritatively run the latest versions of trial presentation software like Sanction or Trial Director, they must be able to sort out complex versioning issues with PowerPoint, diagnose hard drive problems, mass-rename files, handle unheard-of image formats and much more. Again, experience makes the difference. For more information about this emerging profession and a pre-engagement hiring discussion checklist, see our free downloadable article offering a 20 point trial technician skill set and trait guide. Trial technicians add an enormously disproportionate amount of value to a trial team with the budget to hire one. Instead of focusing on the availability of documents and evidence, the proper functioning of courtroom and war room technology and overcoming technological hiccups in real time, litigators can focus on careful strategic trial preparation of arguments, experts and witnesses. With some carefully planned discussions, litigation teams evaluating the addition of a trial technician to the courtroom support team can virtually guarantee success.
Still think PowerPoint is a trial presentation tool primarily for bullet points and text? Allow me to show you otherwise! Like a good salad, PowerPoint is all about the ingredients you put into it. Bad ingredients (e.g. text only, bullet points, clip art, poor color choice, etc.) equal bad PowerPoint trial graphics. Good ingredients (e.g. technical illustration, well-designed backgrounds, quality transitions between slides, animation, etc.) equal winning trial graphics. Since the introduction of the 2003 version, PowerPoint has been a go-to tool for patent litigators in claim construction hearings, tutorials, at the ITC and in patent infringement trials. Out of the box, PowerPoint is simply a blank canvas that allows text, clip art and basic shapes to be combined on a slide. However, in the hands of an information designer at a trial consulting firm, it is a powerful tool indeed. Like a master painter with high quality paints, skill and experience, the blank canvas of PowerPoint can be filled with true works of information art in the hands of a skilled information designer. The movie below contains four examples of patent infringement trial graphics created by Animators at Law. Three of the four examples were created for jury trials or Markman hearings. One example was built for a §337 ITC hearing. All examples combine technical illustration and PowerPoint animation in a clever way. The examples are:
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