When a WOTUS is not Water: Winning the War with TRIAL DIRECTOR

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Why Use TRIAL DIRECTOR?

Courtroom technology is a boon for attorneys conducting courtroom presentations. Perhaps its greatest advantage is that the technology allows you to present your theory of the case in a visual way. Research and experience show us that having relevant graphics is more persuasive than words alone.[1] A principal challenge for the defense in criminal cases is that we are reactive to the government. We have to adjust to how the prosecution builds its case in chief when putting on our defense. Trial Director’s[2] greatest benefit for defense practitioners is that it allows them to add a visual component to their cross examination on the fly. This feature is critical, as more often than not we will be unsure how a witnesses’ testimony will come in on direct, and what we may need to focus on during cross-examination. To illustrate how Trial Director can be a useful tool for CJA panel attorneys and Federal Defenders, we will review a real case I worked on, United States v. Lucero, No. 19-10074 (9th Cir. 2021). This trial involved explaining complex scientific and regulatory information to a jury. Let me give you an example of how we used Trial Director and visuals to assist with the cross-examination of witnesses – and then tied it together in closing. I served as the “hot seat” operator, pulling up and annotating exhibits under the attorneys’ direction, as I describe in detail below.

Dumping Debris into a WOTUS

Our client, a dirt broker, was charged with illegally dumping debris onto federally protected wetlands on an undeveloped, privately owned property in Newark, California. This area covers about 400 acres located south of San Francisco near Mowry Slough. It is next to the Don Edwards San Francisco Bay National Wildlife Refuge. At the time of the charged offense, a consortium of developers was in the process of planning a master-planned golf course community on the site.[3] The case was brought under the Clean Water Act, 33 U.S.C. § 1251 et seq. (“CWA”) which made it a crime to discharge pollutants onto wetlands, regulatorily defined as traditional navigable waters, without a permit. At trial, we conceded that our client dumped debris without a permit. The judge denied our requested knowledge instruction, so the government did not have to prove Lucero’s knowledge of the wetland issue. Multiple government experts testified that the dump sites qualified under the regulatory definition as “wetlands.” However, the sites did not appear wet at the time of our client’s conduct, because the dumping occurred during the summer and after several years of drought.

As we shall show below, we were able to set up the issue of knowledge at trial, and eventually won on appeal. Below are a series of brief examples designed to illustrate how we used TRIAL DIRECTOR during the cross-examination of witnesses.

Educating the Jury

The map at Figure 1 was one of the exhibits we used during the cross-examination of a government expert. Initially, this expert was hired by the developers to conduct an environmental analysis of the area. During direct examination, the government showed the expert a series of maps to elicit testimony designed to illustrate precisely where, on the property designated as wetlands, our client dumped debris. These two regions in the map below demarcated with red boundaries were where he dumped debris using dump trucks over a period of several months.

Figure 1
Figure 1

This map included a key indicating which parts of the area were designated as wetland (Figure 2).

Figure 2
Figure 2

During cross-examination of the expert, we used what Trial Director describes as a “callout.” The attorney directed me to zoom in on the portion of the exhibit that had the map key. Using the software program, I drew a box around the map key. The software program pulled out that portion of the exhibit, making it larger, while adding a 3-D fade-black effect on it with projection lines. NOTE: I could adjust the size and shape of the “callout” on the fly, and even scroll within it as needed. The attorney then elicited testimony about how, for example, there were significant segments of the area in question that were not designated as wetland, to support our lack-of-knowledge argument.

Tributaries, Culverts, and Navigable Waters

Figure 3 is another map of the same region, again with red demarcations showing that the area where our client dumped debris was protected wetland, but with additional details such as references to tributaries and culverts.

Figure 3
Figure 3

The map at Figure 4 is a screenshot of what I did live in front of the jury pursuant to the attorney’s instructions. This process was dynamic. The attorney asked me to do a callout, and instructed me to draw arrows to show the areas where our client was accused of dumping debris, within the “South Fill Area and the North Fill Area”.

Figure 4
Figure 4

The crucial fact in dispute was whether this area was considered a WOTUS, and that determination involved the question of whether the TNW had a “tributary;” that is, whether it showed physical features of flowing water. One of the areas of “flowing water” was this culvert. Live, in front of the jury, the attorney instructed me to use the “Zoom Region” tool in Trial Director to allow the jury a closer view of the map detail (Figure 5).

Figure 5
Figure 5

The Presentation screen is a feature of Trial Director that can be used to display multiple pieces of evidence simultaneously.  It is divided into nine zones – Zone 1 is the left side of the screen, Zone 2 is the right side of the screen, Zone 5 is to the top left quadrant, and so forth. We used this feature to address the question of whether the culvert was a WOTUS during cross-examination of a witness. Figure 6 shows the aerial map of the area with the culvert in Zone 1, shown side by side with a video of the general area of the culvert Zone 2, paused to show the culvert in the foreground. The attorney then instructed me to use the annotation tools to add arrows and ellipses to indicate where the video footage of the culvert was in relation to what was shown in the aerial map. (Figure 6).

Figure 6
Figure 6

Figure 7 (below) is an iteration of Figure 6, with the aerial map still on the left side of the presentation screen (Zone 1) while on the right side of the screen (Zone 2) the attorney instructed me to again pull up the same video exhibit. However, instead of the same frame of the clip shown in Figure 6, the attorney instructed me to play the video and then pause it at a point showing a close-up of the water flowing through the culvert. The attorney also instructed me to use the annotation tools to add arrows and ellipses to indicate where the video frame of the culvert was in relation to what was shown on the aerial ma. One related and exciting feature of Trial Director is its ability to do a callout of a portion of a video while it plays. You can zoom in on a specific area of the video, do a callout, and let it continue running to show the zoomed area in detail as it plays. This feature can be particularly useful when playing surveillance or body cam videos.

Figure 7
Figure 7

A Close Reading of Topographical Maps  

One of the government’s witnesses in the Lucero case was a civil engineer who had been involved in conducting a land survey of this area – again, the issue was whether the geological and ecological features of the area met the criteria for it to be considered a WOTUS. We conducted an extensive cross-examination of the civil engineer, during which we closely reviewed a series of topographical maps, such as the one shown in the video below (Figure 8). To effectively pull off this cross-examination, the testimony was tied to a close reading of the topographical maps, focusing on the significance of the gradients indicated by the contours. The ability to dynamically pivot on the fly, depending on how the witness testified, was critical.

Closing Argument

When using courtroom technology, most people will use PowerPoint for opening statements and closing arguments. However, Trial Director can be used for openings and closings as well. Many experienced practitioners will use PowerPoint as their primary tool during a closing, but then switch over to Trial Director to show an exhibit, so as to respond to a point made during the government’s closing, and then switch back to PowerPoint to continue. One of the themes we focused on during closing argument was the government’s experts’ re-writing of history. Reports prepared between 2007 and 2016 by environmental consultants hired by the developers, and by the US Army Corps of Engineers, differed in key aspects with the reports developed by the witness the government hired. For example, the 2007 reports did not find that there were any tributaries, while the government’s expert report determined that the ditches in the South Fill Area were in fact ”tributaries.” (Figures 9 & 10)[4]

Figure 9
Figure 9
Figure 10
Figure 10

Furthermore, between 2012 and 2016, California experienced the most severe drought in a millennium, and the bulk of the pictures introduced by the government at trial were from the 2007 reports and January 2017. We argued these photos of ponding, or water, did not prove water in the summer of 2014, when the charged conduct occurred (Figure 11).

Figure 11
Figure 11

Dumping Debris into “Water”

Our defense hinged on educating the jury about technical issues related to wetlands and the complex regulatory definition of WOTUS. The government had a much easier job, namely, to focus on the seemingly unambiguous visual impact of debris dumped onto this area. Our client was found guilty. (Figure 12.)

Figure 12
Figure 12

On appeal, the United States Court of Appeals for the Ninth Circuit reversed our client’s conviction and vacated his 30-month sentence. It held that the district court erred by not instructing the jury, as the defense had requested, that the government had to prove the defendant’s knowledge that the sites where he dumped debris were “water.” (Figure 13).

Figure 13

The Lucero trial provided an example of how using Trial Director played out in a real case and establishing a factual record for appeal. We were able to demonstrate on appeal with evidence from the record that the knowledge issue was important given how the site appeared dry at the time of the offense. The visuals provided the backdrop for our expert’s declaration, which we submitted as an offer of proof. The appellate court relied on this record to reverse on the knowledge issue.

If the government had opted to retry the case, it would have had to prove that our client knew he was dumping debris into “water” in the generally understood sense of the term, rather than into an area defined as “a water of the United States” within the meaning of the CWA. Ultimately, the government opted not to re-try the case. On October 20, 2021, our client, who had remained out of custody while the case was pending, pled to one CWA count and an agreed-upon sentence of one year probation.

The chart below sets forth practical considerations for using the software in the courtroom (Figure 14).

Figure 14
Figure 14

This blog post was designed to provide an overview of how you can utilize Trial Director. If you would like to take a deeper dive with a hands-on, one-on-one training, please contact Kelly Scribner or Joe Wanzala.


[1] “People learn more deeply from words and graphics than from words alone. This assertion can be called the multimedia principle, and it forms the basis for using multimedia instruction – that is, instruction containing words (such as spoken or printed text) and graphics (such as illustrations, charts, photos, animation, or video) that is intended to foster learning.” (Mayer, 2021, in press-a). See https://www.researchgate.net/publication/369588588_Learning_by_Teaching.

[2] As of July 2023, IPRO has renamed TrialDirector 360 to TRIAL DIRECTOR. It has also been called Trial Director and TrialDirector (one word) in the past. For the purposes of this post, we will use the term “TRIAL DIRECTOR” and “Trial Director” interchangeably to describe the software program.

[3] https://www.santacruzsentinel.com/2016/03/22/carmel-man-charged-with-illegal-dumping-in-newark-wetlands.

[4] In April 2020, the Environmental Protection Agency promulgated a new WOTUS rule which narrowed the definition of ‘waters of the United States’ and found that ditches would not be considered to be “tributaries.” The most current version of the WOTUS rule took effect March 2023, but then there was a subsequent Supreme Court decision limiting/revising the meaning of WOTUS. see, https://www.epa.gov/wotus/current-implementation-waters-united-states

Electronic Exhibit Sticker

Preparing exhibits for trial or court hearings, though not glamorous, is an essential task in the practice of courtroom litigation. Depending on the volume and type of exhibits, this necessary task can quickly turn tedious if you must print each exhibit, affix a physical sticker, fill out the exhibit and case information by hand, then scan and submit the stickered exhibit. In the heat of trial where last minute changes take place frequently, it is easy to make mistakes. However, with the right type of technology, such as Adobe Acrobat Pro (or Standard), this process can be done more smoothly, help reduce opportunities for making errors, and done more quickly than the old school method of stickers and paper  If you have Adobe Acrobat*, we suggest considering using digital (electronic) exhibit stickers for your next case.

*Acrobat Standard or Pro, not the free “Reader” version.

This post will walk you through how you can create digital exhibits on your own, including the process of installing a sticker that takes the form of a custom Acrobat stamp. The stamp will allow you to quickly fill in the exhibit and case numbers for your case, and will automatically remember your previous entries the next time you use it.

First, follow the instructions below to install the electronic exhibit sticker.

Installation

  1. Download and copy the exhibit_stickers.pdf file to a location that is easily accessible, such as your Desktop. (NOTE: You can delete this PDF file once we are finished with the installation.)
  1. Open Acrobat and press CTRL-K to open the Preferences menu. Scroll down on the left to “Security (Enhanced)”. Click the “Add File” button, which will open a file explorer window.
  1. Type %appdata% into the address bar and press enter.
  1. This will open a new folder.  Open the “Adobe” folder, then the “Acrobat” folder. You may see folders for the different versions that have been installed like a “2017”, “2020” or a “DC” folder. Open the “DC” folder if you have that, or else the highest folder year you have. Open the “Stamps” folder. Find the “exhibit_stamps.pdf” file you saved and drag or copy and paste it into the Stamps folder. Select the file and click “Open.”
  1. This will take you back to the Preferences screen. Verify that exhibit_stamps.pdf is listed inside the box. If the file is there, click “OK”. Then close out of all Acrobat windows.

Usage

  1. Open the PDF that needs an exhibit sticker. Select the “Comment” tool from the list along the right side of the screen.
  1. This will open a new toolbar. Click on the Stamp tool icon, navigate to the “Exhibit Sticker” menu, then click on the Exhibit sticker image.
  1. The first time you use the sticker, it will pop up this window. Check “Don’t show again” and click “Complete.” There is no need to enter any information.
  1. Your cursor will now become a floating exhibit sticker. Click where you would like to place the sticker. Do not worry if the initial placement is not perfect; you can move the sticker to a different part of the page and even resize the sticker after you have placed it.
  1. When you click to place the stamp, a window will pop up asking you to enter an Exhibit Number. Enter the Exhibit number in the box and press OK.
  1. Next, a window will pop up asking you for a Case number. Enter the Case number and press OK.
  1. This will place an exhibit sticker on your PDF that contains the Exhibit Number and Case Number. You can move and resize the sticker if needed. If you need remove or change any of the information on the sticker, you can right click on the sticker, select “Delete” and create a new sticker.
  1. To permanently affix the sticker to the document, you will need to print the document to a new PDF. Go to the File menu and select Print. Now change your printer to “Adobe PDF”, change the “Comments & Forms” selection to “Document and Stamps”, then press print and save your new copy to the location of your choosing.
  1. That’s it. You will now have a permanently stamped PDF document. The next time you want to stamp a document, Acrobat will pre-fill your last enter Exhibit Number and Case Number, so it will be easier to keep track of your exhibits if you are marking multiple documents in one sitting, and you will not have to re-enter the case number each time.

If you need any assistance with installation, you can contact me at carl_adams@fd.org.

TrialDirector 360 Discount for CJA Panel Attorneys Licenses

The National Litigation Support Team (NLST) is pleased to announce that IPRO has agreed to provide a discounted rate for CJA panel attorneys to purchase a subscription license of TrialDirector 360.

TrialDirector 360 is a courtroom presentation tool that allows users the ability to present documents, pictures and videos in hearings and trials. Users can prepare exhibits in advance, or instantly display exhibits to jurors and judges. Additionally, attorneys can direct jurors’ attention to the most important parts of exhibits by doing call-outs, zoom-ins, mark-ups, highlights, and side-by-side comparisons of documents. During the examination of a witness, it is easy to do a screen capture of information that has been displayed to the jury for later use in the trial, and the software works well when used along with PowerPoint. TrialDirector has been successfully used for many years by FDOs and CJA panel attorneys representing clients and has been a staple of the Law and Technology workshop training series for close to 20 years.

CJA panel attorneys can purchase TrialDirector 360 at a discounted price of $556.50 per year (approximately 40% off the retail price). This price is for a subscription, so you must pay this amount each year to continue using the software.

If CJA panel attorneys are interested in purchasing TrialDirector 360 contact Kelly Scribner. If you have any questions regarding the utilization of TrialDirector 360 for your office, please contact the National Litigation Support Team (NLST): Kelly Scribner or Alex Roberts.

The NLST will be providing remote one-on-one training on how to use TrialDirector 360 for any user interested. Please have the user contact Kelly Scribner to schedule training.

Additional TrialDirector program information and resources are available on the IPRO TrialDirector 360 help center.

So you think you don’t need tech?

Editor’s Note: Penny Marshall is currently in private practice, focusing on Law and Technology.  Previously she was the Federal Defender for the Federal Public Defender Office for the District of Delaware.  Her practice has also included the federal and local level in the District of Columbia and a year and a half stint in the state of Georgia.  She has served as President of the Association of Federal Defenders and Chair of the Third Circuit Lawyers Advisory Committee.  In addition, she is an adjunct faculty member at Widener Law School and has served as guest faculty at both Harvard Law School and Benjamin Cardoza School of Law. 

Imagine that the government has provided you with 50 DVD’s, a stack of paper amounting to more than a 100,000 documents, an ample number of CD’s and a list several hundred witnesses.  If you instinctively start to prepare by hiring enough paralegals to print out all of documents on the DVD’s, put them all in manila folders, and then hope that you or your smart energetic personnel will remember, in the middle of cross-examination, exactly where a particular impeaching statement is located, then this blog is certainly for you.

Unfrozen Caveman Lawyer

Even in the less complex cases, there is increasing reliance by prosecutors on digital discovery rather than forwarding a stack of reports and pictures.  And certainly the video and audio of our clients providing visual and audio support for the government case will be represented in a digital fashion.

In the new technological age more and more the government is able to “over paper” a case by putting any and all documents on electronic media and challenge YOU to find what is truly relevant.  More and more the government is following the way of our civil counterparts, who have long used technology as a way to organize and present their case.  We, as defense lawyers are prime to catch up.

At different stages of litigation there are several advantages to the use of technology:

  • Generally, the first advantage is that technology allows all of your information to be stored and organized in a compact easy to find location.  Almost gone are the days of moving numerous boxes from one location to the other to be copied and filed.
  • The next advantage is that the digital approach allows for your documents to be searched, either by looking in the digital file or by a program that blitzes through numerous documents to find one name or one crucial word.  Tiny print, upside down lettering and even handwriting can be deciphered.
  • A third advantage is that technology is a less costly way of presenting evidence.  For example: compare for example a FBI model versus using a computer program to reconstruct a crime scene.  Also think of the flexibility!
  • Fourth, technology organization requires you to focus on your case in advance. Rather than place the paper in an accordion file and bringing it out close to trial, electronics says you must consider the parts of the case in advance.

The fact that we are in a visual age cannot be understated.  TV, Text, Laptops, PCs, Phones, Tablets all require us to stare at electronic screens.  Each of these compete for our attention by making more and more exciting bells and whistles.  Check out the lines in front of an Apple store once a new “iDevice” is revealed.

Lining up for new technology

Even though jury duty is a diversion from the normal life for our citizenry, many jurors are regular consumers who expect theatrics in the courtroom. I must admit that, at first, I went kicking and screaming that I was not fully comfortable with tech in the courtroom, but having tried complex cases where it was an absolute necessity and experienced the impact of it in even the more modest case, I am an absolute convert. Think about it, even if you are one of the great lawyers of the day, jurors may tire of your voice in a long case with significant documents, especially if you are asking the Court’s indulgence to find your trial evidence!!

Do Jurors and Judges Really Need to See Your Evidence?

The answer is yes, and courtroom presentation software can help you do it.

Not only do they need to see or hear it, but they need to understand, retain and recall it.  Whether we like to admit it or not, we live in an era where audiences expect a multi-media show every time they sit for a presentation.  Jurors and judges are no different, whether they are in a small town or a large city.  The question for trial lawyers becomes how do they present the facts of their case, and their client’s story, but do it in a way that grabs people’s attention?  We believe that courtroom presentation software should be an integral part of your litigation support toolbox.

While there may be a certain charm to writing with chalk on a blackboard or placing a piece of paper on an Elmo (a document camera), these options limit how a lawyer can present evidence in the courtroom.  For example, an attorney can only put a piece of paper on an Elmo if they have that piece of paper readily available, but they have no control over what part of that document the fact finder is focusing on during the evidence presentation.

A lawyer can only write so quickly, or so much, on a whiteboard/chalkboard, and the marked-up document may not get entered as an exhibit or taken back to the jury room.

With trial presentation software, an attorney can have available to present in court the critical evidence they want, as long as the documents, videos or audio files have been pre-loaded onto a laptop they plan to use at the hearing, motion or trial.

What is courtroom presentation software? It is a program that allows you to pull up a document for the jury/judge to view and blow up a word, line or paragraph on which the attorney wants the jury/judge to focus.  An example of such a program that is specifically designed for use in the courtroom is TrialDirector.  Besides the above example, TrialDirector is a media player, giving you the ability to pause a portion of a video or audio file for emphasis.

A lawyer using TrialDirector can compare documents side-by-side or point out important differences/similarities in documentary, photographic or video evidence.  TrialDirector can also be your virtual trial binder, allowing you to organize your materials for quick and easy presentation in the courtroom.  All of these techniques can be done with just a few keystrokes.

Another common presentation program that has been adapted for use in the courtroom is PowerPoint.  You should have it or something similar in your toolbox but be aware, it does not give you the same level of flexibility and access to your evidence as a courtroom presentation program such as TrialDirector.  For example, with PowerPoint, each slide must be prepared in advance with fixed text or images whereas with a courtroom presentation software, you can show any file that has been loaded into the program on the fly.

We believe that these various presentation tools should be used to enhance, not replace, an attorney’s advocacy on behalf of their clients.  But as a sign of the times, courtroom presentation software is now so commonplace that there are even presentation apps for use with iPads and other tablet PCs.

Criminal Justice Act (CJA) panel attorneys can take advantage of a special offer provided by inData and purchase a copy of TrialDirector at a discounted price.  Additionally, the Office of Defender Services offers technology related training events that specifically focus on PowerPoint and TrialDirector.  These workshops have no fees for attendance and are open to all CJA panel attorneys and Federal Defender staff.  For those of you who are interested, the next workshop will be held in Providence, Rhode Island, July 21-23 and there are still a few spaces available.  Details about the workshop and registration information can be found on fd.org.