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Just when lawyers think they’ve seen the latest in high-tech trial gizmos designed to dazzle jurors, something new comes along to push the envelope even further. The newest curve: holographic imaging, which makes it possible to show such things as three-dimensional views of aneurysms, running automotive parts and structural failures. “For $450, you can project a 3-D image in the air of a section of a brain. And the judge or jury can look around the image … and it’s identical to the subject’s brain,” said John Eamigh, a technology consultant for the Chicago-based litigation consulting firm Zagnoli McEvoy Foley. As technology advances and prices fall, attorneys continue to up the high-tech ante to engage jurors. But some lawyers worry that too much gadgetry will sever the emotional connection they need to make with jurors. “You don’t want it to become a tech show,” said Daniel Kolb of New York’s Davis Polk & Wardwell. “I also use real documents so that jurors can touch them. I mix it up. The technology has to be tempered or you lose your human contact.” Kolb noted that jurors often can’t take the electronic version of the evidence into the jury room. He suggested that jurors should be allowed to take electronic evidence � if that was how it was presented to them � into the jury room, instead of substituting paper copies that they may have never seen. It’s a balancing act that litigators are struggling to perfect � a complex challenge in a world where brand names like Sanction, TrialDirector and PowerPoint have become de rigueur. Some are just tools to organize and present vast stores of information on cue, and are antidotes to complex cases where droning lawyers can lull jurors and judges into a stupor. Other tools are tailored to let the jury and the judge see the inner workings of a product or a company, or the inside of a plaintiff’s or a defendant’s head. “I think that it’s very difficult to do a complicated case without using media,” said Arthur Shartsis of San Francisco’s 50-lawyer Shartsis Friese, a firm that specializes in large, complex financial litigation. “But it’s important not to be consumed by the technology.” He uses multimedia technology beginning at the mandatory-mediation stage. “It’s the one chance to look the actual party in the eye and say ‘Here’s why you’re going to lose and why we’re going to win,’” he said. While little empirical data exists on whether multimedia presentations are keeping more jurors awake, a 10-year-old study suggests that a bit of spice couldn’t hurt. A study by Vanderbilt University School of Law professor Nancy King found that jurors often nap in trials. In the 562 responses to questionnaires she received from state and federal judges, about 69 percent reported cases in which jurors had fallen asleep. The respondents estimated that they had done between 26,000 and 40,000 trials in the previous three years. Eamigh stressed the importance of keeping jurors engaged. “As well as educating, the latest, greatest technology keeps jurors interested,” he said. “Digital white boards and touch-screen technology are becoming more common as the technology becomes easier to use and more cost-effective.” A digital white board allows a person drawing or writing on the board to transfer the content through a computer to a monitor or projection screen. Touch-screen technology allows the witness to focus the jury’s attention by annotating what’s on the screen with an electronic pen, whether the witness is seated with a remote control or standing at the screen. The annotated image can then be saved and recalled later in the trial. A relatively new high-tech twist is the medical-grade microscopic camera, well suited for medical malpractice and products liability cases. “It gives you the ability to examine the inside of a failed tire, see stress fractures in equipment � all in real time,” said Eamigh. “It can examine a subject’s blemish while she sits at counsel’s table. It can be very persuasive.” Some lenses allow the user to zoom in, while others are fixed at up to 1,000 times magnification. Many cameras can illuminate the image, he added. But when a jury retires to deliberate, the exhibits they take with them are not the fancy stuff. They are paper facsimiles. “Print it out and put a sticker on it,” said Vanderbilt’s King, a jury specialist. However, in some venues paper is being left behind completely until a jury deliberates. For example, by order of Richard Ganucheau, a Louisiana state judge in New Orleans, a two-year tobacco trial that concluded last year was paperless, until the jury deliberated. Scott v. American Tobacco, 96-8461 (Orleans Parish, La., Dist. Ct.). Class action plaintiffs alleged, among other things, that the tobacco industry had manipulated ingredients to make cigarettes more addictive. They won almost $600 million to be placed in trust for smoking cessation and other smoking-related health and education programs. The case is on appeal. “All the documents were scanned and displayed on a large screen by order of the court,” said plaintiffs’ co-counsel Louis Gertler of New Orleans’ Gertler, Gertler, Vincent & Plotkin. “It allowed both sides to highlight important aspects of long documents in a very efficient and informative manner.” Each side and the court had its own information technology specialist. “The funny thing about this paperless trial is that we needed hard copies [of everything put up on the screen] to put into evidence, [so the jury could have it for deliberations],” Gertler added. The plaintiffs also used computer animation to show how nicotine affects the brain. “It was very expensive,” said Gertler. “But we were able to show in real time� seconds � how quickly nicotine got to the brain, what happens when it gets there and how it causes addiction.” Kolb of Davis Polk notes that technology can’t replace old-fashioned preparation. “The apparent seamlessness of a media presentation comes from trial preparation and teamwork,” said Kolb, who used Lynbrook, N.Y-based DOAR litigation consulting as the hub of his tech team. “I’ve seen lawyers play an excerpt from a deposition to impeach a witness that looked different on the printed page than it looked when it was played � the nuance in the voice, the facial expression � the meaning was different. The only way to avoid that is to see it and work it out in advance. DVD technology makes that easier.” And as attorneys work on balancing gadgetry with good lawyering, judges have some work to do as well. King said that one day a body of rules and law will develop around electronic exhibits. Noting that jurors often see some of the trial evidence in electronic presentations, but then get to bring only hard copies of the exhibits into the jury room, she asked: “Should they be given the electronic versions? Will they then start to manipulate the exhibits on their own? Will they require a computer expert to assist them?” Leonard Post is a reporter with The National Law Journal, a Recorder affiliate based in New York City.

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