It’s been my privilege to work with a number of remarkable trial lawyers. Three in particular have impressed me with their philosophies of trial advocacy. Each strategy has a special affinity with one of the three principal categories of trial presentation: visual aids, exhibits and video depositions.
Lesson 1: Tell your story
Presentation tool: Visual aids
I learned that every case has a story from a patent litigator who was also my first mentor as a new lawyer. While the subject matter of his cases was patent claims, it was his client’s invention and development of the technology that was the story. He taught me the importance of framing the factual and legal issues, however complicated or straightforward, in a compelling narrative.
Demonstrative exhibits and other visuals are invaluable in telling the story. They’re particularly well suited for emphasizing key points in opening and closing argument. Visuals can also be used as a teaching aid during expert testimony on complex technical and financial subjects.
The four main categories of trial visuals are:
- Timelines: Nearly every fact pattern becomes clearer when it’s presented as a timeline;
- Charts and graphics: Especially useful for financial information and in making comparisons;
- Drawings: Use drawings to illustrate and label (for example, the parts of a medical device or the layout of an accident site);
- Animations: Time and the budget permitting, anything from a PowerPoint slide to a custom-made accident reconstruction video.
There are intangible as well as practical benefits to the strategic use of visual aids. For one, some of the jurors will be primarily visual learners; this is increasingly true in our media-saturated culture. For other jurors, a visual aid reinforces what they hear. Everyone appreciates the variety and sensory stimulation visuals provide during a long day in court.
The mainstay technology tool for visual aids in the courtroom is Microsoft PowerPoint. In addition to slide deck organization and presentation, PowerPoint can be used to add simple animation to other visuals (timelines, charts, etc.). Advanced animations can be burned to a DVD or run using Windows Media Player or a comparable program. Finally, old technology, such as the trial board on an easel, still has its case-specific place in the courtroom.
Lesson 2: Own your facts
Presentation tool: Electronic exhibit presentation
Own your facts — not run from them — was the lesson taught to me by a white collar criminal defense lawyer. Demonstrate command of the facts of the case through practical command of the exhibits. The hallmarks of effective exhibit presentation are clarity, focus and efficiency.
The best tool for the job is electronic evidence presentation software run by an experienced courtroom specialist. (In my shop we use InData’s TrialDirector.) That said, it’s not necessarily essential or wise to completely eliminate paper. For instance, a judge may request an exhibit binder or a witness may need a paper copy of a difficult-to-read or voluminous exhibit like a financial spreadsheet. However, both judge and jury will appreciate the greater speed and efficiency that results when hard copy exhibits are used as little as possible.
Good organization and preparation are essential, and in their turn are based on good communication between the attorney and the courtroom specialist. The attorney’s witness outline is an important part of the equation. The courtroom specialist uses the outline to create an electronic exhibit workbook for each witness and to anticipate callouts and annotations during the witness examination.
The basic approach to displaying exhibits is to start with the full-page view and then progressively narrow the focus to direct the jury’s attention to the significant portions of the document. For example, an email might be presented in these steps: a) full page view; b) first callout of header block (date, from/to, subject); c) second callout of pertinent paragraph in the body of the e-mail; and d) highlighting a key sentence as it’s read by the witness. Other tools in the presentation toolbox are side-by-side display of two pages, multiple callouts simultaneously and annotation tools like arrows, circles and underlining in different colors.
Lesson 3: Relate your case to the jury’s life experience
Presentation tool: Video deposition clips
An employment defense attorney taught me to always consider the human angle: How will the jury react to the personalities of the parties and witnesses? Technology enters the picture through the presentation of testimony by video deposition. Video can be an especially powerful tool with adverse witnesses or for impeachment.
Video clips corresponding to page and line designations are the building blocks of video deposition testimony. However, both the substance of the testimony and its delivery must be considered in making the final call on what clips to play in court. The witness’ mannerisms, expression, and moments of hesitation aren’t apparent in reading the transcript but can radically change the effect the testimony has on the jurors.
From a practical standpoint, making video clips is typically the most time-intensive part of preparing for electronic evidence presentation in a civil case. Cutting clips requires extensive quality control; this includes segmenting out objections and checking start and stop points. Depending on the court reporter the deposition transcript and video may need to be synchronized first. For testimony about exhibits, the presentation can optionally be marked in advance to automatically bring up and remove the exhibit in side-by-side display with the video. Some clips will have to be edited to conform to pre-trial rulings on objections, while others will be edited one final time during trial to reduce total running time per video deposition.
Finally, there’s the choice of whether or not to display rolling text below the video. It’s wise to confirm in advance if the judge has an opinion on the subject.