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Aristotle taught in Rhetoric that persuasion is based on ethos, pathos, and logos. Even 2,300 years later, each of these elements — credibility, emotional appeals, and logic — still plays a central role in the trial lawyer’s ability to effectively persuade a jury. But today, television has become the dominant medium for the dissemination of information and entertainment. Americans have become conditioned to think in 30-second sound bites, one-minute commercials, and 12-minute segments. Every news program routinely utilizes “power points,” videos, charts, and graphics with increasing sophistication. The trial lawyer who ignores this basic reality of American life does so at significant peril to his or her case. The effective trial lawyer will continue to rely on the timeless tactics of credibility, emotional appeals, and logic. But, in order to effectively persuade a jury, the trial lawyer must deliver the case themes and facts in a way that is consistent with how jurors process information in our high-technology age. Indeed, jurors have come to expect it. Even when the traditional flip chart or white board is large enough for a jury to actually read — in itself a rarity — the old techniques are simply not enough to keep a jury’s (or judge’s) attention. The effective use of visuals, demonstratives, video, and animation delivers an edge that a trial lawyer should not relinquish. In fact, given the relatively low cost, ease of use, and dependability of today’s courtroom technology, the excuses — “I do things the old-fashioned way”; “I am not a techie”; “It will break down” — simply do not wash. There is no such thing as a case too small or too simple for use of technology. Courtroom technology has become a critical component of advocacy, and a trial lawyer’s failure to take advantage of even basic technology, such as a digital visual presenter (sometimes referred to as “ELMO”), cedes an unnecessary advantage to the opposing party. For example, in a complicated dispute such as a patent infringement case, courtroom technology permits the trial lawyer to present highly complex technology in a simplified form that reinforces witness testimony about the patents. On the other hand, the use of technology in a simple, run-of-the-mill contract dispute will serve to keep the jury’s attention because the exhibits will be shown on the familiar medium — a television. NO SMOKE AND MIRRORS Before describing some of the technology available to the trial lawyer, one aside is necessary to stress that courtroom technology is not a substitute for strategy, content, or execution. Even when relying on technology, the trial lawyer must continue to develop case themes, understand the key documents and testimony, prepare witnesses, conduct effective direct and cross-examinations, and prepare and deliver compelling opening and closing statements. Courtroom technology is not an end in and of itself, nor can it be used as smoke and mirrors to obscure bad facts or compensate for a lack of preparation. Courtroom technology, however, should be viewed as a tool that enhances every aspect of a trial. For example, a laptop can now store the key documents, making those documents available for the jury to see instantly. A videotaped deposition that has been edited for key sound bites provides the trial lawyer with a powerful impeachment tool. Even basic presentation software, such as Microsoft PowerPoint, should be utilized during opening and closing statements; an organized PowerPoint presentation permits the trial lawyer to impart a substantial amount of information that members of the jury might otherwise forget if they were not seeing and hearing it at the same time. So, what courtroom technology is available? • Digital visual presenters. These are high-resolution projectors that permit the trial attorney to zoom in on the critical parts of any document. Regardless of the other technology employed during a trial (such as an electronic document database), the trial lawyer should ensure that a digital video presenter is in the courtroom and ready for use at a moment’s notice; it serves as a fail-safe in the seemingly inevitable situation where a key piece of evidence is not available for publication (or cannot physically be published) to the jury through other technology. Many courtrooms across the country now have these machines, but given their low cost (a portable unit costs approximately $1,000), firms that try cases on a regular basis should purchase or lease one. • Trial presentation software. A number of products on the market — including Sanction, Summation, TrialDirector, TrialPro, and Visionary — offer integrated applications designed for trials, such as electronic document organization, exhibit enhancement, and courtroom presentation. Although each product has slightly different functionality, all permit the trial lawyer to store and recall case documents, highlight key exhibits, play videotaped depositions (or any type of video), and import animation and graphics for presentation. For most cases, the software can be run off of a laptop; larger cases, however, may require several hard drives. In addition, a projector and/or at least one viewing screen that actually presents the exhibits to the judge and jury must be used. The trial lawyer should also consider using a trial consultant to build the presentations and operate the equipment during the trial. Firms that cast themselves as high-tech trial lawyers should employ at least one trial consultant; the investment in such an expert to oversee the technical aspects of a trial pays off in the form of peace of mind, allowing the trial lawyer to focus on strategy, content, and execution. • Real-time transcripts. Although originally used only for depositions, real-time transcripts have gained increased acceptance during trials. This software permits a party to watch the testimony on a laptop at the counsel’s table as the court reporter types it. The benefit of this technology in the courtroom is obvious, but real-time transcripts also give the trial lawyer an added capability. The real-time reporting can now be streamed over the Internet to, for example, the lawyer’s office. This capability is especially useful when a trial is out of town; by “watching” trial testimony as it happens, some team members can continue to assist the trial team remotely. THE COMPLICATED MADE SIMPLE Technology should be used in all types of cases to effectively describe and simplify the trial lawyer’s case. Technology is particularly useful in cases involving complex matters such as biotechnology, chemistry, medicine, or electronics. For example, in a recent patent dispute involving medical devices known as stents (which are inserted into veins to prevent clogging), an animation of how a stent works presented a complex area of medicine. Had the trial lawyer relied solely on witness testimony, or even actual video, the explanation would not have been as accessible to the jury. Other cases, such as trade secrets, trademark, and copyright, benefit from clear and concise presentations. For example, in a recent copyright case involving call center management software in the telecommunications industry, the impeachment of key plaintiff witnesses with videotaped depositions devastated the plaintiff’s case in a way that simply reading deposition transcripts would not have accomplished. Ultimately, it played a role in the judge’s decision (in a bench trial) to find for the defendant and dismiss the plaintiff’s case in its entirety. Indeed, regardless of the underlying legal issue — antitrust, commercial, contract, patent infringement, product liability, complex tort — technology permits presentation of any aspect of a case in a more persuasive and effective way than if the trial lawyer were to rely solely on witness testimony. Invariably at some point, the trial lawyer will come before a judge who is not yet familiar with today’s advanced courtroom technology. After seeing the latest technology in action, almost to a judge, they become technological “converts.” A number of judges have commented that they “cannot imagine” not using the technology during a trial; others have been impressed with its ability to “move things along.” Aristotle’s “artistic proofs” remain the foundation for a successful trial lawyer. Persuading an American jury today, however, requires the trial lawyer to employ courtroom technology. A small investment in time and money in mastering and using courtroom technology allows the trial lawyer to satisfy the jury’s desire to be entertained and their need to understand the evidence and argument by seeing and hearing it simultaneously. Mark D. Wegener is a partner at D.C.’s Howrey Simon Arnold & White, LLP, and chair of the firm’s global litigation practice group. He can be reached at [email protected]. Andrew Lazerow is an associate in Howrey’s global litigation practice group. He can be reached at [email protected].

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