Evidence presentation at trial — know when and how to wow ‘em

The perks and pitfalls of using too much or too little technology at trial, with a do-it-yourself guide

2014 October

You’ve made it to trial and you are (hopefully) excited about your case. You want to find the most effective way to communicate with the jury: to show them how your plaintiff has suffered and why the defendant is responsible. You can’t wait to present your client’s story to the jury, and are thinking about the best ways to do so. In making these crucial decisions, it is imperative to consider how using (or not using) the vast array of technology available to trial lawyers plays a role in molding your case for success or failure.

Jurors’ expectations: Know your audience

It is 2014 – many California jurors will hope for more than just hearing your voice drone on for days, maybe weeks, in presenting your client’s case. Jurors are not living under a rock – they know technology is available, and many want to see you utilize it.

When deciding how high to pump up the technology volume, do not underestimate the importance of jury composition, venue, and how the use of technology will reflect on you and your client. For example, if you are trying a case in a rural area where there are mainly dirt roads, only a few stoplights, and/or your jury is composed of mainly senior citizens – it may be appropriate to scale down the use of iPads, tablets and other fancy electronics. Along the same lines it may also be a great idea to temporarily remove your Rolex watch, $2,500 Armani suit, and/or large diamond ring. As plaintiffs’ attorneys, we must be mindful of appearing too “rich” to the jury (whether or not we actually are rich) because this can negatively impact the probability of them awarding a large verdict to our client. We want to appear successful, competent and confident, but not braggadocious or flossy with respect to our wealth.

This can also play into our use of technology at trial. If the defense attorney is alone with just a yellow legal pad and a few pens, and the plaintiff’s side has three attorneys, a jury consultant, and a “technology assistant”− all armed with tablets, laptops, mobile printers, scanners, and other gadgets – it might not seem like an even match, wherein certain jurors could be inclined to sympathize with the defendant in a tacit exercise of “rooting for the underdog.”

On the other hand, if you are trying a multi-million-dollar quadriplegia case in downtown Los Angeles with a jury that is more youthful and you are facing a team of defense attorneys, it may be a perfect opportunity to pull out all the stops where the use of technology is concerned.

Correlate technology with caliber of the case

Speaking of multi-million-dollar quadriplegia cases, it should be noted that there is a difference between these and a $25,000 minor-impact automobile collision case with soft tissue injuries (also known as MIST cases). It should go without saying that the amount of technology, expense, and “glitter” you throw onto your case should be commensurate with the probability of return on that investment. The potential recovery of courtroom technology costs is discussed later, herein. However, for the sake of the current discussion, the assumption is that the costs you are spending on technology use for evidence presentation will not be recoverable.

In 2008, I had the unique and awesome experience of being able to serve on a jury trial downtown as a practicing plaintiff’s attorney. When we finally got into the jury deliberation room, it was like looking behind the curtain and

discovering the Wizard of Oz. It was amazing what the jurors didn’t “get” even after the attorneys verbally repeated it over and over and over. In this particular trial (an employment case involving the City of Los Angeles), the attorneys on either side did not use any technology whatsoever to present their evidence. Not so much as putting a Special Verdict Form or Jury Instruction on an ELMO during closing arguments and walking the jury through it. The trial consisted of abundant and pure oral testimony over a period of ten days. In speaking to my fellow jurors, they were bored, lost, and really needed something to break up the monotony during the trial. Not one of them really understood the key jury instructions that were discussed in Plaintiff’s counsel’s closing argument. They thought a critical issue in the case was something totally different than it really was.

Since certain individuals are scientifically proven to be visual learners, sometimes seeing the text of a key jury instruction in writing (displayed on an ELMO or in a PowerPoint presentation) simultaneously as the lawyer is discussing it and how it applies to the case can make a huge difference. Studies have shown that individuals retain approximately 50 percent more information if the information is presented in both a visual and auditory manner. (http://www.cisco.com/web/strategy/docs/education/Multimodal-Learning-Through-Media.pdf).

What do you need to bring?

Every courtroom is equipped with different technology that is available for use. Most of the newer courthouses have free Wi-Fi connections throughout. You will want to check with your particular courtroom to see if they have the following available for use during your trial:

• ELMO• Projector

• Screen (consider best placement so that jury and judge can see)

• Wi-Fi connection

• HDMI, USB and other needed cables

You will need to provide your own:

• Laptop/tablet• Laser pointer• Remote control to control PowerPoint slides

• Computer programs such as: PowerPoint, Sanction, iJuror, etc.

• Power cords/extension cords

• Transparencies/print-outs

Getting evidence approved by the court

Admissibility of evidence is usually accomplished by stipulation between counsel and/or laying an adequate foundation to admit the evidence.

You should check with the Court regarding any local (or departmental) rules regarding pre-approval for the use of technology. Some departments may require the stipulation of counsel or the giving of adequate notice of your intention to use the Court’s technology equipment.

Making friends with courtroom staff

You’ve probably heard it before – but when engaged in trial, you should be a model citizen within at least a five-mile radius of the courthouse. The list of who you should be particularly kind to includes the security guard who checks you in each morning at the metal detector (be early and wait your turn in line – don’t cut to the front); the parking lot attendant; the bailiff, the courtroom clerk, the courtroom attendant; the guy in the snack bar who sells you your morning cup of coffee; and the people you share an elevator with on the way to and from your department. Why? The main reason is that the jury is always watching. Even when you don’t think they are watching – they are watching. They are looking for something that humanizes you – something to make you more believable (or less). But an underlying reason for the purposes of this topic is that these people could end up playing a key role in determining whether your use of technology to present the evidence in your client’s case will be a major perk or major pitfall.

So how does this topic translate to using technology for the presentation of evidence at trial, you ask? Very directly. Assuming you’ve followed the recommendation to establish a good relationship with the courtroom staff by simply saying good morning daily with a smile on your face, following the rules they have set for the department, speaking to them with respect, and possibly even engaging in a few jokes, the following will magically occur:

• When you need someone to turn the lights on and off for your PowerPoint presentation, the clerk or bailiff will automatically do it without missing a beat;• When you need to stay five minutes after court is dismissed to check a wire or make sure the connection from your laptop to the projector is working – it will be no problem;• When you need to come to the department a few minutes before lunch hour ends to set up the projector for the presentation of your closing argument, the door will be open for you;• When you need something to prop up the projector so it hits the screen properly, you will receive help with this;• When the ELMO in your department is broken, the clerk will check with the neighboring departments about borrowing theirs for a few hours;• When you’re in the middle of testing out your equipment, the courtroom attendant will hold the jury outside as necessary and check with you to see if you are ready.

Technology in voir dire

Although they are instructed not to…it is inevitable that one or more prospective jurors (or ultimate jurors) may use the Internet to search for your client (or you!) on Facebook, Twitter, LinkedIn or any of the other numerous social networking sites. The offending juror who does so, may never admit to it and may never discuss his or her findings with the other members or the jury. But what he or she discovered about your client jet skiing last weekend when he says he can barely walk due to chronic pain will be engraved into that juror’s brain. It has been held unethical for an attorney to tell his/her client to remove an “incriminating” picture or comment off of a social media site. However, it’s not unethical to tell them from the very beginning not to post these things in the first place. If they are agreeable, it’s probably best to advise a client in the beginning of a major injury case to suspend his or her Facebook, Twitter, Instagram etc. until the conclusion of the case.

Jury selection is a trial attorney’s first and perhaps best opportunity to connect with the jury. It is the only time during the span of the trial that you will be able to ask a juror a question and receive a verbal response. You do not want to waste these precious moments being so fixated on fiddling with your technological devices that you don’t engage each juror and look in his or her eyes.

With that being said, jury selection programs such as iJuror (available for $9.99 on iTunes), JuryTracker and Jury Duty can be extremely helpful tools if you are using a jury consultant or another lawyer/member of your office staff to help you select the jury – the opportunities for utilizing technology expand tremendously. The reason being is you can have the person assisting you control all of the technology so you can just jot down a few key notes while focusing most of your attention on engaging the jurors, reading their body language and connecting with them as much as possible. iJuror is focused more on the jury selection process, while JuryTracker is designed for use during the trial.

There are several programs (including those mentioned above) that can be used for jury selection that replace the traditional and trusty “post-it” method we are all so familiar with. Some of the best programs can be loaded right onto your iPad/tablet and you can walk around the courtroom while using the device vs. being confined to your seat or the podium (Note: your tablet and these programs will likely require an active Wi-Fi internet connection in order to function properly – most of the courthouses, including Stanley Mosk, have Wi-Fi connections that are decently reliably, but please check ahead to ensure the courthouse you will be trying your case in has the technology that you will need available. If the Wi-Fi in your courtroom is not reliable, you should consider purchasing an alternative means of Internet access).

On the flip side, you can also use Facebook, Instagram, Pinterest, etc. to research your potential jurors. Again, if someone is assisting you during jury selection, he or she should take the opportunity to pull up prospective jurors’ Facebook and Twitter accounts (to the extent the information is public) and see what can be learned about the person. Prospective jurors may be hesitant to disclose details that are responsive to your questions and very important. It goes without saying, but you should ensure that the person who is searching social media sites regarding prospective jurors be physically positioned in such a way that no potential jurors (or anyone really) can see what is being pulled up on their laptop/tablet screens.

Technology in opening statements & closing arguments

Using a PowerPoint presentation during your Opening Statement and Closing Argument may be one of the best ways to stay organized and ensure you cover all of your key points. The average adult’s attention span is only about 15 minutes – so you can enhance and maximize that time period by spicing up your presentation with the use of different technology mediums.

It’s often a good idea to have a slide or two with your key points that you can leave up for the jury to consider long after the spoken words have left your mouth. Jurors are also more likely to write down and thus remember something that is displayed for them in a clear, concise manner − and also verbally stressed and repeated.

Using technology for impeachment

What could be more powerful in impeaching a witness than asking him or her a question on the stand and then immediately playing back a videotape of his deposition wherein he testified otherwise? Not much. This could be as close to a “Perry Mason” moment as you’re probably going to get.

In order to do this, clearly you must have videotaped the deposition. Then you can utilize software, such as Sanction, for videotaped deposition synchronizing. This process, if successfully executed, can be most impressive to a jury.

If you are presenting deposition testimony by video, judges will often want objections handled in advance. You should talk to your judge at the Final Status Conference (or before) to find out the Court’s rules regarding use of videotaped depositions at trial.

Reverting to Plan B

Even the most sophisticated and foolproof technology presentation can fail. Frankly, while you are clearly hoping it will not fail, you should expect it to do just that and have a Plan B on deck to which you can seamlessly transition.

If you were planning to show the jury a PowerPoint presentation in connection with your closing argument, but cannot do so because your laptop inexplicably refuses to turn on…here are a few tips that can help you transition to Plan B.

• Have a color printout of each slide of your PowerPoint presentation on hand – that way you can use the slides to refresh your memory if there is no way to publish them to the jury;• If possible, you can publish the color slide printouts to the jury by putting them on the ELMO and then continue discussing them just as you would have during your originally planned PowerPoint presentation.

Is the price of courtroom technology recoverable?

The cost of using technology at trial can be high. Sometimes even as high as your key expert witness. Expert witness fees, under the correct circumstances, are recoverable on the prevailing party’s cost bill. But what about the cost of technology used at trial to present evidence?

Traditionally, such costs have not been recoverable. However, in the recent excessive-force case Bender v. County of Los Angeles (2013) 217 Cal.App.4th 968, the plaintiff’s trial technology costs were deemed fully recoverable. In the trial court, the jury awarded the plaintiff a six-figure verdict. The court then awarded $989,258 in attorney fees, and refused to tax costs of $26,953.72 for expert witness fees and $24,103.75 for courtroom technology. Defendants filed an appeal. The Court of Appeal affirmed the lower court’s ruling and plaintiff was allowed to recover $24,103.75 for his use of courtroom technology to present evidence at trial. Plaintiff was even able to recover the cost of his “trial technician” for nine days of trial. If the costs are wholly recoverable, this is clearly a huge perk to using technology to present your evidence.

The Bender opinion explains what these costs consisted of, and shows how the plaintiff used technology at trial: “These costs consisted of ‘Trial Video Computer, PowerPoint Presentation and Videotaped Deposition Synchronizing and the cost of a trial technician for nine days of trial.’ Plaintiff used a PowerPoint presentation in closing argument that consisted of a detailed summary of trial testimony, documents and other evidence as well as a ‘comprehensive evaluation of such evidence vis a vis jury instructions.’ The costs included charges for creating designated excerpts from deposition transcripts and video, converting exhibits to computer formats (TIFF’s & JPEG’s), and design and production of electronic presentations.” (Id., 217 Cal.App.4th at p. 990.)

The test established in Bender concerning whether trial-technology costs were recoverable is this:

(1) Did the use of courtroom technology enhance counsel’s advocacy?

(2) Was the use of courtroom technology reasonably necessary to the conduct of the litigation?

If you can answer yes to both questions, there is a strong possibility that you may be able to recover courtroom technology costs on your cost bill. If that’s the case, all the more reason to use it to increase your effectiveness in reaching the jury.