Electronic Media in the Modern Trial
The need to present a case in a simple logical manner is as old as the law itself. Not long ago, graphics for trial were basically chalkboards and hand drawn sketches. Thanks to computers, computer artists, trial presentation software & 3D animators, demonstrative evidence can be more powerful than ever.
There are many factors to consider when incorporating technology into your case. We are often consulted on cases and the first thing the attorney asks us is, “How do I need to present my case to be clear to a jury?” They often wonder if they need lots of graphics, an animation, annotation screens, etc. What we usually tell attorneys is, “You need what you need to present a clear case.” Allow me to explain. Some cases are relatively simple to explain and some are more complex. Both types of cases can benefit from visuals. A common question we ask attorneys is, “What MUST you convey to the jury to win?” This sounds so simple, but is often overlooked. More often than not, there are only one or two main points that you need to convey to the jury to get them to find in favor of your client. The focus of the visual strategy begins here, and once you decide what you MUST get across to the jury, you are ready to begin.
Opening Statements
This is where the groundwork for your whole case is laid out and powerful graphics can leave a lasting impression on your jury. An effective opening statement is key to getting the jury to think like you are. Remember, the other side is trying just as hard to get the jury to think like they are. The use of graphics is a powerful tool in setting the tone of the case. According to the U.S. Department of Labor, after 72 hours, people remember only 10% of what they hear, 20% of what they see, but an astonishing 65% of what they both see and hear. Here are a few things to remember when selecting the correct media for an opening statement:
Computer Slides vs. Boards
This is a common question we hear with respect to openings. The question is usually answered by determining what needs to stay up during the opening and what needs to be presented during key points. Another thing to consider is how many total slides you anticipate using. If you only need one or two slides for your opening, boards may be a better alternative. Timelines are great for boards; they can be put on easels and left up during an opening as a constant reference. Bullet points, charts, graphs, etc., are usually better presented via a computer slide. The slide can be brought up once for the jury to see and then taken down. The main thing to remember when using slides or boards is not to become dependent on the demonstrative aid. The facts are still key and the demonstrative aid is used to enhance the facts.
Audio, Video & Animations
Unless a media file has already been pre-admitted as evidence, it can be difficult to use audio/video visuals during an opening. If you have pre-admitted audio/video visual pieces of evidence, the most effective way to present them is via a computer. Computer generated video can easily be inserted in opening statements, direct examinations, cross-examinations, and closing arguments. Use of DVDs, VHS tapes and audio decks can be cumbersome, which slows down and breaks the flow of your presentation.
Direct Examinations
This is where technology plays a big advantage. In the past as you examined a witness, you would either pass them a document or have them write something on a board and explain it to the jury. The problem was, the jury couldn't easily follow along or comprehend the exhibit since they couldn't see it. With technology, key documents can be brought up on a big screen where you can highlight, zoom into key areas, compare to other documents, etc. This same technology can be used on photos, transcripts, etc. Singular presentation of evidence is very powerful since everyone is looking at the same thing at the same time while it is being explained.
Demonstrative exhibits such as charts, graphs, timelines, etc., can also be created to enhance a witness's testimony. Many experts' testimony can be complicated and difficult to explain to the average person. Well-designed graphics can help explain complex information in a way that most can understand. The main thing to remember with your graphics is to not overcomplicate them. Sometimes a simple bar chart will convey the message and sometimes a complex graphic is needed. If you ever wonder whether your graphic is conveying the message in a logical manner, ask someone in your office or a friend who knows nothing about your case, “Does this makes sense to you?” If they say, “I understand it fine,” then leave it alone. If they have no idea what you are trying to convey, ask them “What do I need to do for it to make sense to you?” Remember, it isn't how pretty a graphic is; it's whether it does its job.
Cross Examinations
Cross-examinations are where you can really benefit from technology. Computers and software have taken cross-examinations to a new level. Most of the old techniques for crossing a witness have been changed with technology. One of the biggest weapons for cross has been the creation of trial presentation software. Trial presentation software such as Sanction or Trial Director is a database with a presentation function. This software gives you access to any of your case material with the push of a button. These software packages will accept scanned documents, transcripts, photos, video depositions, PDF files and many more file types. Depositions can also be synchronized to court reporters transcripts allowing instant access to any portion of a deposition instantly for impeachment. Instead of loading VHS tapes and trying to fast forward or rewind to the portion you need, you can quickly create video impeachment clips or jump to a page and line number of a deposition in seconds. This instant access to testimony is key so that you do not lose the moment. The best way to prepare for a “technology” cross is to take your cross outline and write in after every question the Bates number of the document you plan to use or the video impeachment ID. If you take the time to write in your ID numbers in your outline, you can quickly and efficiently bring up documents and impeachment cites.
Closing Statements
The closing is your last chance to speak to a jury before they begin deliberations, but more importantly your last chance to persuade them. Closings can easily be where a case is won or lost. Research has shown that many jurors have not made up their mind about a case until closing arguments. Closing arguments are often more complex when it comes to technology. Large amounts of evidence have usually been introduced during the trial, which can make it difficult to choose what to present. Think back to your original plan with regards to what you MUST get across to a jury to win. Using a combination of documents, graphics, video clips or animations can be a very powerful and lasting impression on a jury before deliberations.
Outsourcing vs. Doing it Yourself
This is a dilemma that does not have to be that difficult. If your case is relatively simple, yourself or your firm can create most of this technology easily. If your case involves a lot of documents or visuals, it may be wise to seek assistance—you want it to be professional and efficient.
Too Flashy?
A common concern, typically among defense firms with large corporate clients, is whether the technology will appear too flashy. Today's jurors live in a world where technology is all around them. Jurors expect to see evidence and will not be offended if your client is willing to present the best case possible. As more courtrooms around the country become “wired,” this will be less of an argument as judges and juries will expect the use of technology. Never fear technology if it can benefit your client.
Final Thoughts
Technology benefits a trial more so than ever. It can be the difference maker in a trial but cannot win it. Technology is a powerful tool but not an alternative to preparation. Trials are still won and lost, usually on the facts. Technology is a way to enhance and better present the facts of your case.
According to the U.S. Department of Labor, after 72 hours, people remember only 10% of what they hear, 20% of what they see, but an astonishing 65% of what they both see and hear.
