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.