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Visitors walking into Courtroom 14B of the Daniel Patrick Moynihan United States Courthouse last December could have been pardoned for wondering if they had wandered into something other than a legal proceeding. In front of the 30 trial attorneys sitting at three counsel tables were 12 laptops with real-time transcript rolling. At the end of two of the counsel tables sat technicians in charge of running each side’s computerized document and tape presentations. The court, the clerk and each testifying witness also had monitors. Most visible, however, was the enormous 8-foot-by-10-foot screen on the wall facing the jury as well as the 37-inch plasma TV next to the jury. The old video Elmo — formerly the state-of-the-art court technology — sat unnoticed in front of the examining attorney podium. This was the technology used during the month-long jury trial in JPMorgan Chase Bank v. Liberty Mutual Ins. Co., a case brought by the bank against 11 insurance defendants involving numerous commercial transactions and over $1 billion in damages. At various times during the month-long trial over which Southern District Judge Jed Rakoff presided, a visitor could have seen edited video depositions, key clauses from contracts blown up on the large screen and then compared to earlier drafts, and critical handwritten notes made clear through technology, all of which were closely watched by the jury. For a month, the jury did not touch a single document; yet, at the end of the trial, hundreds of exhibits had been admitted, explained and used in this complex commercial trial without losing the jury’s attention. How did the parties get from a mass of paper and discovery to the seemingly effortless presentation of evidence at trial? The answer can be found in much preparation, a judge willing to permit cutting-edge technology in his courtroom, and the ability of the parties to reach sufficient agreement so that the technology could proceed. REACHING AGREEMENT The trial in this matter proceeded on an extremely expedited basis: The case went to trial one year after the complaint was filed. As a result, massive discovery occurred in a very short time, over a matter of months. As the parties prepared for trial, they literally faced millions of pages of documents and hundreds of videotaped depositions as the base for the evidence to be presented at trial. In addition, the court had made clear that it would not allow more than one month for trial. As mentioned, the case itself involved 11 defendants and numerous transactions. The challenge for the plaintiff was to condense its presentations into an efficient and comprehensible form. To do so, the trial team turned to consultants who could assist in setting up and running a technologically sophisticated courtroom. In the month before the trial, both contacted the court to see what the court would permit. The court clerk indicated Judge Rakoff’s willingness to permit such equipment, and the consultants then reviewed the courtroom and worked out a floor plan for the suggested monitors, screens, video equipment and wiring. This plan was reviewed by both sides and submitted to the court for approval. The parties, with the court, then arranged a specific time to move their equipment into the building, which was necessary for security reasons. By the Wednesday before Thanksgiving and five days before trial began, the equipment had been installed and attorneys from both sides were able to inspect and test the installation. The tests worked and everything was set for opening. The next challenge was the effective use of the technology by the trial teams. EXHIBITS Technology can make even complicated documents clear and understandable to a jury quickly. In a case where there were many transaction documents, each many pages long, the ability to call a document up on the big screen and flip to the important points was a critical aid to jury comprehension and retention. To avoid the jury’s reliance on a witness’ oral presentation alone, the examining lawyer and witness were able to display a clause on the screen, enlarge it and then highlight the critical parts — all in a matter of seconds. Handwritten notes on documents could be explained and highlighted and then quickly compared to other documents. The result was streamlined document testimony anchored by visual images in the jury’s mind. In order to achieve that efficiency, the trial team had to think ahead and coordinate each witness presentation, whether direct or cross, with their trial technician. That meant that a list of the possible exhibits was loaded into the litigation support software each day. The examining attorney then reviewed the documents on a monitor with the trial technician in order to set the order and go over the sections for highlighting at trial. The technician then prepared his notes or “script” for the examination and was accordingly prepared to pull the documents up, highlight, underline, compare or split screen the exhibits. The technician also was prepared to pull up loaded documents on cross as requested. Once loaded and admitted into evidence, the documents could be shown as part of testimony or in closing. In fact, plaintiff’s closing presentation used a video montage of admitted evidence and comparisons of testimony on a split screen as a way of anchoring the key points for closing. DEPOSITIONS AT TRIAL One of the most effective uses of technology at this trial was the playing of edited, focused deposition testimony excerpts. Instead of the colorless reading of deposition excerpts from unavailable witnesses, the parties showed selected videotapes with the transcript rolling under the picture. Jury members found the tapes useful. For each five-minute tape, however, the trial team spent hours in preparation. The pretrial order had designated deposition excerpts that might be read into evidence at trial. In addition, the pretrial order identified those who would be called as witnesses by deposition as opposed to live. Within this universe, each party then designated those portions of the transcript proposed to be shown to the jury and then the other side included counter designations and objections. Marked transcripts were then given to the court during the course of the trial for rulings on the objections. After the rulings, the video was created by digitalizing it for the computer software and was then edited into the final version with the transcript scrolling below the picture. The parties then reviewed that “final” version and made any further adjustments. All of these steps were undertaken as the trial was proceeding, and the creation of the excerpts was completed in extremely short turnaround times. One particular technical issue arose in editing these depositions. Unknown to counsel, some of the court reporters videotaping the depositions did not use the correct formatting so that the tape could easily be digitalized. As a result, a great deal of work was necessary on some depositions in order to synchronize the audio and video portions of the tape and get it ready for showing by computer. This problem can be avoided at the outset by insisting on digital videotaping at the deposition. LESSONS LEARNED Somewhat to the surprise of at least the senior members of the trial team, the elaborate technology set up for the trial actually made the presentation of the case easier for the attorneys, the jury and the court. The trial attorney had much more control over his or her message, and the jury was extremely receptive to a presentation based on a “big screen” approach. There were no lost exhibits or a jury member reading a document while the witness was talking about something else. The jury considered the video depositions equally as convincing as the live witnesses, and in some cases more memorable since they were so focused. Experts were able to use build-out exhibits that could be modified by the technician on the spot to conform with the court’s rulings on admissibility. At closing, the big screen could be used as a split screen as well as a reminder of the key documents and points. After the case settled and the parties met with the jury, it was clear the technology had helped the jury understand a set of complicated commercial transactions and to retain the key points made at trial. The one caveat to using such technology is simple: There is no point in installing the equipment unless it is going to be used, and to be used it must be practiced and prepared for properly. It is critical to work with a well-tested trial consultant firm and with trial technicians who are competent and cool under pressure. There is nothing worse than having the wrong document flash up on the screen or playing a tape that does not start or is not properly synched. Like everything in a trial, care and attention must be given before you set foot in the courtroom. With that care and attention, however, the paperless trial is more persuasive to the modern jury and a substantial time-saver for the court and the attorneys. Sarah L. Reid is a partner at Kelley Drye & Warren.

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