Back in the analog days, a parade of lawyers and paralegals would march into the courtroom right before a trial started, carrying dozens of bankers' boxes filled with documents and other evidence. These days, attorneys in most medium-to-large cases digitize everything from contracts to deposition transcripts, photos and videos and organize them in databases from which they can search, annotate, and produce materials. Now, a trial presentation technician walks into the courtroom carrying just a laptop, but one loaded with a trial exhibit database that contains the equivalent of hundreds of bankers' boxes of material.
How does this trial presentation database come to be? It starts well before trial, with the organization of what we call the "pretrial" database, the most popular brands of which are Summation, Concordance, and Relativity. Pretrial databases are repositories of virtually everything that you gather in discovery related to your case, including documents, photos, emails, deposition videos and transcripts, and expert reports. They allow you to store, organize, and retrieve your data as you prepare for trial. And though they are put together months and often years before trial, the way they are built and organized can have a big effect down the line at trial.
The trial presentation database is a subset of the pretrial database, which consists of just the materials that you will (or might) use at trial. Like pretrial databases, these trial presentation databases (the most popular of which are TrialDirector and Sanction) allow you to store, organize, and retrieve your materials. But they also allow you to enhance (e.g., highlight, annotate, or zoom in) and display your materials for the judge and jurors to see. Migrating data from a pretrial database to a trial database is no mean feat, especially in the crucial, often chaotic run-up to trial, when this migration most often occurs.
TRIAL TECH TIPS
Here are 10 tips that I have found useful to smooth the way:
1. Hope for the best; prepare for the worst. Trials are a lot like hurricanes. You know that they happen. You also know they often don't happen (i.e., hurricanes veer out to sea; trials settle). But you should still prepare as if they are going to hit, because being organized will make a huge difference both in how well you understand your case (organizing materials helps you think better) and how prepared you are for trial (it is better to be focused on motions and briefs in the weeks leading up to trial than creating a database).
2. The early bird gets the worm. Digitizing materials, loading them into your pretrial database, analyzing them, and then transferring them to a trial presentation database all take time. Spend a little money up front, when you have lots of time, so you do not have to spend lots of money to get the project done when there is only a little time (vendors often charge rush fees for syncing video depositions or scanning exhibits because they know they have got you over a barrel).
3. Make the right choice. If your materials are in a non-standard format, you may have trouble presenting them at trial, so convert them early in the process. For documents, I recommend PDF as it works across the widest variety of software and computers. For graphics and photos, we recommend using JPGs (they have the highest quality-to-file-size ratio, plus they work with a wide variety of operating systems and software). For animations, we recommend SWF for Flash and common file types, like Windows Movie File (.wmv) or QuickTime (.mov), rather than proprietary formats, which often only play with one type of software.
4. One is the most efficient number. In litigation that has a lot of different issues, you may be tempted to create a pretrial document database for each issue, rather than creating one big one. This can cause serious problems down the line if you have to combine all those databases into one trial database, because you will end up with multiple copies of a document in different issue areas. Trying to load duplicate documents into a trial database will result in the documents being rejected because a database cannot have two items with identical names. If the documents have different names, then this can ultimately delay your ability to call up the correct document at the moment it is needed most. As a best practice, create one document database, and then separate the documents into categories by marking them with issue codes.
5. Get your ducks in a row. Like the pretrial database, everything in the trial presentation database must be well organized so it can be located and displayed at a moment's notice. In fact, your trial presentation database needs to be even better organized than your pretrial database. Why? If you cannot find material in the pretrial database in your office during discovery prep, you just keep looking, and probably no one will know about the delay. If you cannot find something in the trial presentation database in court, everyone in the courtroom (including the judge and jurors) knows you could not find it and they all are inconvenienced by the delay. Organization flows from the pretrial database into the trial presentation database if the first is well organized, the second likely will be too.
6. Be good at names. The Bates numbers that you will use to identify documents in your pretrial database are not a good option for your trial presentation database because Bates numbers are often at least 10 characters long, making them difficult to key in quickly at trial. It is better to name your documents in your trial presentation database by trial exhibit number, which are only three or four digits long. Then "brand" each page of your exhibits with its exhibit and page number. This effectively creates a trial Bates number, which will result in faster and more accurate display in trial. It also will create a better record for the jury to refer to when deliberating. Remember: you can always put Bates numbers and other document information (such as "9/14/07-stock purchase e-mail") in the database description field.
7. Sync up. You can use video clips for impeaching live witnesses or play them in lieu of live testimony. Video synchronization matches a video to the transcript and allows you to search for words within the video as if it were a text document. This, in turn, allows you to make video clips quickly because you can immediately find any word (or place) in the video simply by clicking on the same place in the transcript. Syncing deposition videos also allows you to analyze your video more easily in pretrial stages. And, during the trial itself, syncing allows you to easily make last-minute changes to your clips so you can alter them in court, if necessary to respond to objections or unexpected rulings by the judge. In essence, if a deposition is worth being videotaped, it is worth syncing, so get this done as soon as possible for any witness that may be used at trial.
8. Be over-inclusive, but not over-indulgent. When asking the question, "What data from my pretrial database should go into my trial presentation database?", there are two obvious answers: "Everything!" or "Just what's on the trial exhibit list." While the latter choice is closer to the right answer, it is still not the best one. Make sure to think beyond your trial exhibit list and consider documents that might come in handy for impeachment or rebuttal. Remember, if you do add documents, it is most efficient to simply add a trial exhibit number to the end of the list, rather than inserting it in the middle and causing everything to be renumbered. Exercise good judgment; including thousands of documents that will not be used can slow the database down and make searching for them difficult.
9. Put it to the test. Minor variations in an operating system or software can create major headaches in court. Before you go to trial, make sure you test your presentation database on the same computer you will use in court. Also practice using the database with the trial attorney so you know how to communicate what needs to be called up, as well as how to handle any crises that arise.
10. Talk it out. Make sure both the person displaying the materials in court and the presenting attorney understand the naming convention in the trial presentation database. If the trial tech is accustomed to seeing names like "exhibit 144, page 15" and the attorney says, "can you show that letter Mr. Jones sent to Mrs. Jones on Valentine's Day?" there may be an awkward delay.
Michael Skrzypek is The Focal Point's trial support manager and co-author of "The Trial War Room Handbook: Effective Strategies in the Trenches," published by the American Bar Association. Email: MichaelS@thefocalpoint.com.