Law Practice - May/June 2013

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TECHNOLOGY IN PRACTICE. WHAT WORKS? WHO GETS IT?

By Sharon D. Nelson & John W. Simek

Courtroom Evidence: Evolution or
Revolution?

W HILE YOU CAN STILL FIND EVIDENCE presented on paper and foam boards in courtrooms, the days of the paper world are clearly numbered. Commentators routinely ballyhoo the “revolution” in presenting trial evidence electronically. Certainly there are many courtrooms and trials where technology reigns supreme. In case you’ve wondered, the two technologies most often used are the document camera, followed by PowerPoint. Overall, we believe the move toward presenting evidence electronically is more of an evolution than a revolution, though certain revolutionary elements exist.

REVOLUTION: THE IPAD SEDUCES LAWYERS

The most notable change of late has been a rapid rise in the number of litigators using their iPads to “drive” courtroom presentations. According to the ABA’s 2012 Legal Technology Survey Report, more than a third of lawyers now own tablets—and more than 90 percent of those have iPads. CLE sessions such as “The iPad for Litigators” have drawn standing-room-only crowds across the country.

The small-form factor of the iPad and the ability of a litigator to be mobile while presenting evidence has been a game-changer. With the lawyer no longer tied to the technology at the podium, the focus is more on advocacy skills than the technology itself. It is the best of both worlds—the wizardry of technology combined with old-fashioned lawyering.

EVOLUTION: ELECTRONIC EVIDENCE

For all the inroads the iPad has made, the number of litigators comfortable with presenting their own electronic evidence remains small. Most lawyers still hire experts, not only to prepare exhibits but to present them. While, as noted above, you will still find blow-up foam boards in many courtrooms, most lawyers are turning to electronic demonstrative evidence.

We interviewed Dan Bender of Digital Evidence Group to get some sense of demonstrative evidence in the courtroom today. As Bender notes, the most common use of technology is to show electronic images of paper exhibits. This eliminates shuffling pages

in witness notebooks, but more importantly it allows the attorney to present exhibits more quickly while appearing well organized. A witness can be directed more efficiently through a line of questions, and jurors are better able to make a credibility determination if they can see on a screen what the witness is reading.

Video is often a critical component at trial, especially deposition videos. The best format is MPEG- 1. Why? Because almost all computers come with a “codec” that can read that format, which means it is the least likely to malfunction in courtrooms. If you are using synchronized video (for instance, syncing a deposition video to the transcript), you’ll need to make sure that your expert is using appropriate quality checks and high-quality software. As an example, some software offers autosyncing, which doesn’t always provide the precision you want for a smooth presentation at trial.

Demonstrative evidence today has become a true specialty. Once you know what you want to prove, you must work backward to figure out what kind of exhibit will work best—timelines, animations, technical illustrations, document call-outs, etc. Whatever you decide must have the right tone, look and feel. You need to consider color, how much information to put on the exhibit, positive space, negative space and design that will have the desired impact. Some of these considerations will be influenced by whether you are participating in a jury trial, a bench trial, a hearing—or perhaps an arbitration proceeding.

Money is always an issue, except in the largest cases. Sometimes you really want a 3-D animation to demonstrate how a surgery went astray, or how an engineering malfunction caused an explosion. Your budget may prohibit that, in which case you may have to settle for a two-dimensional animation using Microsoft PowerPoint or other presentation software. The upside is that two-dimensional exhibits are so much cheaper, and easier to change if needed. Sometimes you don’t want to overwhelm a judge or jury with the sense that you spent a fortune on exhibits for your case. If you’re thinking that a lot of considerations are at stake when evaluating the electronic presentation of exhibits, you’re right.