TECHNOLOGY IN PRACTICE. WHAT WORKS? WHO GETS IT?
By Sharon D. Nelson & John W. Simek
Courtroom Evidence: Evolution or
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.
So what software is generally used for electronic courtroom presentations? InData’s TrialDirector and LexisNexis’s Sanction are