As trials loom on the horizon, attorneys work
to assure victory. Whether the goal is successful settlement or a winning verdict, the wise lawyer routinely works to
gain every ethical advantage. Increasingly, technology is not just an advantage but a deciding factor.
The rate of technological change is staggering. In just a few years word processing and chalk board presentations developed
into Internet-based legal research and computer-based courtroom presentation systems. Electronic filing is
used around the country. Australia reported the first court order served by Internet. Electronic discovery continues
to develope. The possibilities are endless.
Given the number of possibilities
already available, it is not surprising that some lawyers find it difficult to adequately evaluate their technological
options. It can be difficult to see "the forest for the trees." Accordingly, this article briefly reviews
some options available to the litigator.
Discovery
Depositions are often a critical aspect of case investigation and preparation. An ideal deposition provides raw information
which can be read and electronically searched for comprehensive discovery purposes, and used persuasively in hearings
and at trial. Capturing depositions on video can be useful to display the demeanor and any inconsistency in testimony.
In addition, the judge and jury will likely be accustomed to viewing information in a video format. Video will also
help break up time and keep things more interesting, if used properly.
With depositions
recorded stenographically and on video tape, the transcript and video can by synchronized to make a more understandable and
interesting presentation of deposition materail. One way to accomplish this is to use a court reporter who
uses "CAT," Computer-Assisted-Transcription or Real-Time at the deposition. CAT yields an electronically searchable
computerized transcript in addition to the traditional paper transcript. Even with a traditional stenographic record,
if a contemporaneous audio/video record is made, the two can be synchronizes in just a few steps.
Exhibits can also be linked to deposition transcript making working with the deposition
transcript more productive.
Case
preparation
Most lawyers are familiar with the concept of litigation
support. Historically, "litigation support" meant the imaging of case-related documents with concurrent creation
of retrieval criteria. Retrieval can be based upon previously specified categories or "fields." Documents also can
be scanned with optical character recognition (OCR) and then be subject to content- oriented word searches similar to Lexis
or WestLaw searches. Electronic document exchange of exhibits is effecient and cost effective, especially
in document intensive cases.
Research
The use of notebook computers for CD-Rom-based legal research and internet based research options greatly extend the
lawyer's ability to research anywhere. Because of inherent publication delays, CD-Rom research may not be current.
Counsel may update material utilizing the Internet using standard or cellular-based connections.
For electronically or digitally filed documents, case sites and exhibits embedded in pleadings may be linked to the actual
authorities and exhibits, allowing the court, witness, or other party to easily view materials.
Pretrial
Matters
Historically attornyes used trial notebooks to structure
and organize their cases. Computer based "trial notebooks" can be vastly superior to their traditional hardcopy
counterparts. Unlike paper notebooks, a computerized notebook can cross-reference in numerous ways and be instantly altered
to accommodate new evidence, new theories, or unanticipated adversarial moves.
Presentation software and databases make preparing for trial using a computer the most effecient use of time.
Programs tailored for trial presentaton present incredible possibilities, using text material, video clips, static clip
art images, documents, charts, or photographs, and other media. An increasing number of technologies permit document conferencing
across vast distances; the final result can be displayed in settlement conference or in court.
Trial
In court, counsel can use a LCD monitors - particularly a high-powered
projector and a large screen - to show the videotaped deposition testimony as the synchronized transcript scrolls by. Today
all facets of a deposition are encapsulated on a single disk containing the transcript, deponent video, and all exhibits used
during the deposition. Counsel should use visual material during opening, presentation of evidence, and closing. This material can be
as simple as display of electronic slides, such as the type made possible by Microsoft's PowerPoint or Corel Presentations.
The evidentiary and procedural constraints that may apply will depend upon the specific intended use for the displayed information.
Counsel can expect the greatest freedom in the presentation of closing argument when the information need only constitute
fair comment upon the evidence. Counsel should expect, however, that opponents will attempt to block particularly persuasive
exhibits such an animations on the very grounds of that persuasive impact, arguing that the effect is "unduly prejudicial."
The ability
to electronically display information can be critical. In complex litigation involving large numbers of documents, timely
retrieval and presentation of paper exhibits at trial can be at least awkward and time consuming. According to anecdotal evidence,
placing documents on computer disk with concurrent computer-based display to the fact finder has met with substantial judicial
approval. Judges have reported that trials move more quickly and efficiently than trials with traditional evidence presentation.
Although efficiency is important, visual display at trial can increase comprehension
and persuasion. Counsel should consider the use of technologically based visual materials for the same reasons that
lawyers have always used models, charts, graphs, photos, and similar material. It is apparent that visual materials often
successfully convey ideas and facts in a far more comprehensible and persuasive fashion than mere testimony or text.
It is often said, for example, that although jurors only retain 25% of what they hear
alone, they retain 75% of what they both hear and see. Technologically augmented litigation permits the use of
Logically, any decision on in-court display requires a decision on what to display, how best to display it, whether the judge
will permit the display, and whether that display is pragmatically feasible in the given courtroom. In practice, the overriding
first question is what technology is realistically available. This requires consideration of both "output" or display
devices and "input" or originating sources.
Display devices constitute
the way the fact-finder, especially the jury, will view the material. In one form or another, this will include some variety
of television, computer monitor, projector, or combination thereof. Counsel who are electronically displaying evidence
should particularly consider making an adequate recording of what is actually displayed for the fact-finder.
"Input," or the sources to be displayed, often will be contingent on the available output display media. Potential
input sources will include copystand-type television cameras such as an ELMO, VCR's and audio tape players, white boards such
as the Microfield Graphics SoftBoard. More advanced, use of desktop or laptop with trial presentation software like Trial
Director or Sanction and a Smart Technologies rear-projection touch/pen screen are being utilized everyday.
The most basic - and important - display system is a document camera (ELMO) linked to a projector. Counsel need only
place a page, photo, book or whatever under the camera, and it appears on the screen. As the system can also project transparencies
and even invert black and white for X-ray display, the use of this fully portable system should be considered. Add-on technology
permits counsel and/or witness to electronically write on the image by circling, for example, key text. Depending upon whether
display monitors capable of handling computer outputs are available in the courtroom, computer-produced visuals can be displayed
either directly or, when necessary, via transference to print media, slides, or videotape.
When counsel need still images or charts, production can often be handled in-house via software such as Adobe Illustrator
and its counterparts. The same is also increasingly true of multi-media presentations. Most lawyers, however, lack the artistic
and psychological background necessary to produce useful multi-media and should be hesitant to "do-it-yourself"
even when office technology permits. The ability to create effective presentations is increasingly available
inexpensively. Notebook computers with large hard drives, especially coupled with external hard-drives, removes
prior constraints due to limited disk storage.
Sophisticated, scientifically
accurate, animations usually require the expertise of specialized firms such as TrialOps Inc. or TechnoSource. Technology
advances occasionally present whole new forms of evidence. IPIX's new 360 electronic photographs ("photo bubbles")
provide counsel with the unique ability to let jurors see everything visible from a given vantage point. Rear projection
displays that permit lawyers and witnesses to use special markers or even fingers to electronically "write" on computer
or TV images provide an interactive form of information display. These systems, which
can be as large as six feet diagonally, provide an interactive display which merges inputs and displayed output.
Many lawyers and judges have expressed concern that electronically based evidence can be easily altered electronically,
presenting the risk of undetectable fabricated evidence. The evidentiary system is not really designed to catch intentional
fabrications. Fabricated documents have been known to the legal system for millennia. If anything is truly new,
it is that alterations theoretically now can be made in such an effective and invisible fashion as to produce extraordinarily
persuasive, albeit false, visual evidence. When presenting electronically produced evidence, especially evidence
that has been "augmented" or clarified by experts, opposing counsel should take great pains during discovery to
learn the origins and treatment of the evidence.
Remote testimony
Travel eats up a substantial amount of lawyer time and is the direct and indirect cause of much expense and delay. "Remote
arraignments," two-way TV first appearances (and sometimes true arraignments) in criminal cases are increasingly commonplace
in many states and are indicative of massive changes to come. These popular and inexpensive procedures are laying the ground
for the increasing use of inexpensive non-satellite digital video.
"Video
conferencing" can provide high quality court testimony. Given the efficiencies of conducting depositions, settlement
negotiations, court appearances, including motion argument, and even actual witness testimony, it is likely that television-
based testimony will become an increasingly frequent occurrence in the lives of most lawyers within a few years.
Because it may be that many jurors will find television based live testimony especially credible, "viewcasted" testimony
may have special importance for expert testimony in civil cases. This prediction is far from science fiction. Videoconferencing
soon becomes quite ordinary to the participants, and there is every reason to believe that as the technology's use continues
to expand in corporate and government circles, it will be adopted by law firms and courts anxious to cut costs and clear cases.
Settlement
Many factors go
into a settlement scenario. One can be a settlement brochure, comprised of video highlights, documents, animations and
cost benefit analysis.
Conclusion
Change is upon us. The rate of change is likely to continue to accelerate. Lawyers who wish to win have little
choice but to investigate the options supplied by technology. Increasingly, for many cases, technology will not be an
option but a necessity.
By: Rob Ortiz, Litigation Technology Consultant and President, Trial
Ops, Inc. to contact Mr. Ortiz or for more information, see the downloadable documents on this page or e-mail him
at 411@trialops.com
