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Five Tips to Keep Trial Tech on CourseRules to follow when you're in charge of courtroom presentation.
The option of using the tools of technology for trial presentation is no longer an issue for debate. Once thought of as running the risk of appearing "too slick," juries and judges now expect to have the ability to view the evidence - even in bench trials.
2013-07-08 09:14:56 PM
The option of using the tools of technology for trial presentation is no longer an issue for debate. Once thought of as running the risk of appearing "too slick," juries and judges now expect to have the ability to view the evidence — even in bench trials.
With this acceptance comes an increased level of expectation. Where it was once not uncommon for an attorney to spend a few minutes digging through a stack of exhibits or boxes to locate a desired exhibit (and sometimes not finding it), it is now only a matter of seconds from the time an exhibit is mentioned until it is on the screen for all to view.
This bridge between attorney and evidence is often referred to as the "Hot Seat." Like the attorney who could not find the important exhibit, the Hot Seat operator shares in the burden and risk of disturbing the flow of the trial. Although it looks like a well-rehearsed performance when done properly, technology glitches can cause a delay — or even a mistrial.
Here are a few things to include in your "insurance policy" that can help prevent a courtroom meltdown.
Management. The most common problem I've seen is when counsel asks to display a certain exhibit, and it just doesn't appear on the screen. After just a few seconds, all eyes, including the attorney, judge, jury, and parties turn toward the hot seat. What's the problem? Why isn't the exhibit on the screen? Let this happen a few times, and the judge may instruct you to use the hard-copy exhibit sets, rendering all of that preparation time valueless.
The cause of this failure can often be traced to poor management — possibly on the part of the attorney responsible for choosing the hot seat operator, but also poor management of the data. While it might appear to be a good idea to name all of your exhibits with descriptive file names for easy identification, this practice can quickly sink a larger database.
One option that can be helpful and informative is descriptively naming files and folders (e.g., 6/15/2013 Letter from Ms. Jones re: Smoking Gun.pdf). But that approach can become an epic failure if your database contains 100,000 pages. Instead, stick to simple, minimal alpha-numeric naming structures, with drivers like dates, Bates numbering, document origin, etc. One trick to keep like items together is to add a prefix, such as DEP for deposition exhibits, GFX for graphics, XPT for scanned transcripts, etc.
For guidelines on proper file naming and data management, see my blog post, "Managing Exhibits in Trial," http://at.law.com/LTN136z.
Communication. Any hot seat operator must be a master communicator. An unanswered question is a ticket to disaster. There can be neither fear nor intimidation in play, as these are not good excuses when an exhibit cannot be immediately displayed. This begins with the initial organization and management of the exhibits and transcripts, and continues through trial. When answers are needed, changes are required, or you just need some additional clarification, you will have to pursue it until it has been resolved.
Others may not always understand or appreciate the importance of your needs, so you may need to be patient, but always persistent. You will be expected to have everything under control with respect to the trial presentation. If you can't get answers, move up the food chain, repeat as necessary.
Equipment. You'll want to make sure you have the proper tools for the job. If you want to use your Apple iPad, that's fine for a small case, but if you're planning on using it on a larger matter, you may be pushing the envelope a bit too far. Regardless of the few really cool stories you've read about great attorneys getting great results using only an iPad, why would you bring a thimble of water to a forest fire? All of your equipment must also be suitable for courtroom use. While your nice little portable projector or plasma monitor may work well in the war room, the jury may not be able to read an exhibit from 50 feet away. If possible, visit the courtroom before the trial to detect potential issues. See also, "Courtroom Projectors, Screens, and Monitors," http://at.law.com/LTN136y.
Personality. An attorney once told me she was envious of the fact that I had such a laid-back, Type B personality. I calmly explained (in a laid-back manner) that had I not worked very late the night before, making sure that everything was ready, backed up, checked and tested, I might not appear so comfortable. Trial can be a very stressful event — requiring long hours, little sleep, and with nothing less than perfection as your expected objective. If you want to see the worst of someone's personality, go to trial with them — especially those who are only in trial once a year or less.
A little OCD can go a long way. Making sure everything is in order before you go to sleep at night will help you rest. Waiting to finish something in the morning can lead to other problems if something goes slowly, or additional work comes in. One point should be very clear — this is not a 9 to 5 job.
Experience. Another valuable asset is the level of confidence that comes only from experience. While training, practice, and proper trial preparation are critical, there are no substitutes for many years of actual hot seat experience.
Having a certain level of comfort with the database and equipment will help you when things are going well. Having dealt with problems in past trials will help you quickly recover and move on — often without anyone else knowing that anything has gone wrong. In the hot seat, it's not really a matter of if something will go wrong. It is a matter of when it will happen, how bad the problem is, and how quickly you can fix it.
I had a little "issue" a couple of years ago, which was witnessed by fellow LTN board member John Cleaves, who had come to visit during the McCourt divorce trial that had ramifications on the ownership of the Los Angeles Dodgers. (See, "Frank McCourt Strikes Out," LTN , April 2011.) We had just returned from lunch, and within five minutes of the courtroom door being unlocked, attorney David Boies is asking me to put up an exhibit. Having barely enough time to connect my laptop (which I had been working with during lunch), the exhibit would not display. I tried everything I could to get it to work, probably six or seven things in about 30 seconds. No exhibit. I visualized the end of my career, particularly in such a high-profile trial, in a courtroom packed with reporters.
After I exhausted every possible quick fix, I then switched over to my backup laptop — which was online and ready to present that exhibit. I don't think anyone even realized that anything had gone wrong (other than John and ?anyone near me), because it took probably less than a minute to get it up and running.
This article first appeared in Law Technology News, a Legal affiliate based in New York.