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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 technological envelope even further. The newest twist: 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. It’s identical to the subject’s brain,” says John Eamigh, a technology consultant at Zagnoli McEvoy Foley, a Chicago-based litigation consulting firm. 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,” says 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 suggests that jurors should be allowed to take electronic evidence � if that was how it was presented to them � into the jury room rather than relying on substituted paper copies that they may have never seen during the trial itself. The issue of technology in the courtroom involves 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 commonplace. Some are simply tools to organize and present vast stores of information on cue, serving as 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,” says Arthur Shartsis, a partner at San Francisco’s Shartsis Friese, which 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,’” says Shartsis. 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 can’t hurt. The study by Nancy King, a law professor at Vanderbilt University, 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. Eamigh stresses the importance of keeping jurors engaged. “As well as educating, the latest, greatest technology keeps jurors interested,” he says. “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. 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,” says 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. But when a jury retires to deliberate, the exhibits they take with them are not the fancy stuff. Instead, they are paper facsimiles. In some venues paper is being left behind completely � at least until a jury deliberates. For example, a two-year tobacco-related trial that concluded last year in a state court in New Orleans was completely paperless, under a judge’s order, until the jury began its deliberations. “All the documents were scanned and displayed on a large screen by order of the court,” says Louis Gertler of New Orleans’ Gertler, Gertler, Vincent & Plotkin, who represented the plaintiffs in the case. “It allowed both sides to highlight important aspects of long documents in a very efficient and informative manner.” Each side, as well as 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],” says Gertler. The plaintiffs also used computer animation to show how nicotine affects the brain. “It was very expensive,” says 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, the lawyer at Davis Polk, notes that technology can’t replace old-fashioned preparation. “The apparent seamlessness of a media presentation comes from trial preparation and teamwork,” he says. “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.” As attorneys work on balancing gadgetry with good lawyering, judges have had some work to do as well. King, the Vanderbilt law professor, says that a body of rules and case law will eventually develop around electronic exhibits. Noting that jurors often see some of the trial evidence in electronic presentations but then have only hard copies of the exhibits in the jury room, she asks: “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, an ALM publication affiliated with The Recorder.

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