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Finney: Is trial technology a reasonable and necessary expense?

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FinneyA recent decision in Suen v. Las Vegas Sands Corp., from the Nevada District Court, Clark County, demonstrated that technology at trial is a valued component and not merely a dog-and-pony show. The dispute at hand centered upon unpaid expenses for trial technology that had been deemed as not a “reasonable and necessary” expense. Despite arguments that juries have been able to reach verdicts for years without technology, Judge Rob Bare awarded financial restitution to the plaintiff in addition to a high-profile endorsement for utilizing trial technology. As reported in the Las Vegas Review Journal on Sept. 25, 2013, Judge Bare stated “I think members of a jury, most likely, are going to respect a more high-tech approach” than wading through piles of paper. “I think they will connect with it. … (It) is more than necessary in today’s modern climate. I think the judiciary should encourage this type of professional, high-caliber type of presentation.”

With on-demand access to media from essentially anywhere in the world, many jurors expect the same instantaneous displays with focused messages in the courtroom. Trial technology can include many different tools, such as the use of tablets, laptops, smartboards and complex databases. Regardless of what tools are used, some of the most effective aspects of trial technology include displaying exhibits, zooming into paragraphs, highlighting key phrases, playing video deposition clips with synchronized text, and demonstrative evidence like timelines, charts and maps.

Even with examples of trial technology, some have a difficult time understanding what benefit exists over exhibit binders, trial boards or even the ELMO. Besides the fact that our media-rich culture creates an expectation for this type of presentation, there are several other benefits including efficiency, focus, flexibility and persuasion.

Extended moments of silence in a courtroom as someone rifles through boxes or binders to find specific documents can generate feelings of boredom and aggravation often with the perception that the examiner is disorganized and wasting time. Utilizing tools like Trial Director or Sanction can eliminate those awkward moments as exhibits are pulled up immediately for the entire courtroom to see. The efficiency of displaying documents simply by referencing an exhibit or Bates number keeps things moving at a reasonable pace and creates the appearance of preparedness. As unexpected topics arise, databases can be searched to promptly locate and display documents or testimony allowing examinations to run seamlessly.

When jurors follow along in a binder, it is difficult to control whether they are following along with the line of questioning as they can easily skip ahead or flip to the wrong section. By displaying the evidence electronically you are in control of the focal point by zooming in to specific paragraphs and highlighting key sentences. Comparing documents side-by-side on the screen to show differences and similarities between versions is much more effective than flipping between sections of a binder because everyone is directed to the same section instantly. Furthermore, impeaching witnesses with focused video deposition emphasizes the severity with the inclusion of body language and tone.

Trials are full of unexpected moments that require flexibility and last-minute adjustments. Trial boards and printed graphics are not modifiable, but electronic displays allow for last-minute word substitutions in a demonstration or removal of certain timeline events. Displaying unexpected documents for a specific witness can be done without hesitation or concern around having printed copies available for the jury. Irrespective of the format, much time and effort goes into trial preparation, and nothing is more disappointing than being unable to use something after hours of elbow grease were exerted. Trial technology diminishes the likelihood of this occurring because of the flexibility that it provides.

With focused, streamlined presentations it is often easier for others to be persuaded. Momentum is not lost as a result of shuffling through folders and unorganized notes. Using tools like PowerPoint or Keynote often allow for the dots to be connected via summary slides, comparison charts and snippets of testimony thematically placed together to emphasize specific points.

As the trend to utilize trial technology grows, so does the number of tools available. Some longstanding products such as Trial Director and Sanction are specific to the legal market while others like PowerPoint and Keynote are generic presentation tools that are praised for their streamlined format, which keep people on course during opening and closing statements. When utilizing technology, it is important to remember that bad technology is worse than no technology. As such, trial teams should only use products they are comfortable with or work with a trusted and seasoned veteran. Although technology can add excitement to what may be an otherwise boring trial, the structured message presented to the jury will likely create a deeper understanding of the case and influence the verdict favorably.•

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Deanna Finney (deanna.finney@miscindiana.com) is a co-owner of the Indianapolis based legal technology company, Modern Information Solutions LLC. Areas of service include traditional IT services, software training and litigation support including trial presentation services. www.miscindiana.com. The opinions expressed are those of the author.

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  1. He TIL team,please zap this comment too since it was merely marking a scammer and not reflecting on the story. Thanks, happy Monday, keep up the fine work.

  2. You just need my social security number sent to your Gmail account to process then loan, right? Beware scammers indeed.

  3. The appellate court just said doctors can be sued for reporting child abuse. The most dangerous form of child abuse with the highest mortality rate of any form of child abuse (between 6% and 9% according to the below listed studies). Now doctors will be far less likely to report this form of dangerous child abuse in Indiana. If you want to know what this is, google the names Lacey Spears, Julie Conley (and look at what happened when uninformed judges returned that child against medical advice), Hope Ybarra, and Dixie Blanchard. Here is some really good reporting on what this allegation was: http://media.star-telegram.com/Munchausenmoms/ Here are the two research papers: http://www.sciencedirect.com/science/article/pii/0145213487900810 http://www.sciencedirect.com/science/article/pii/S0145213403000309 25% of sibling are dead in that second study. 25%!!! Unbelievable ruling. Chilling. Wrong.

  4. Mr. Levin says that the BMV engaged in misconduct--that the BMV (or, rather, someone in the BMV) knew Indiana motorists were being overcharged fees but did nothing to correct the situation. Such misconduct, whether engaged in by one individual or by a group, is called theft (defined as knowingly or intentionally exerting unauthorized control over the property of another person with the intent to deprive the other person of the property's value or use). Theft is a crime in Indiana (as it still is in most of the civilized world). One wonders, then, why there have been no criminal prosecutions of BMV officials for this theft? Government misconduct doesn't occur in a vacuum. An individual who works for or oversees a government agency is responsible for the misconduct. In this instance, somebody (or somebodies) with the BMV, at some time, knew Indiana motorists were being overcharged. What's more, this person (or these people), even after having the error of their ways pointed out to them, did nothing to fix the problem. Instead, the overcharges continued. Thus, the taxpayers of Indiana are also on the hook for the millions of dollars in attorneys fees (for both sides; the BMV didn't see fit to avail itself of the services of a lawyer employed by the state government) that had to be spent in order to finally convince the BMV that stealing money from Indiana motorists was a bad thing. Given that the BMV official(s) responsible for this crime continued their misconduct, covered it up, and never did anything until the agency reached an agreeable settlement, it seems the statute of limitations for prosecuting these folks has not yet run. I hope our Attorney General is paying attention to this fiasco and is seriously considering prosecution. Indiana, the state that works . . . for thieves.

  5. I'm glad that attorney Carl Hayes, who represented the BMV in this case, is able to say that his client "is pleased to have resolved the issue". Everyone makes mistakes, even bureaucratic behemoths like Indiana's BMV. So to some extent we need to be forgiving of such mistakes. But when those mistakes are going to cost Indiana taxpayers millions of dollars to rectify (because neither plaintiff's counsel nor Mr. Hayes gave freely of their services, and the BMV, being a state-funded agency, relies on taxpayer dollars to pay these attorneys their fees), the agency doesn't have a right to feel "pleased to have resolved the issue". One is left wondering why the BMV feels so pleased with this resolution? The magnitude of the agency's overcharges might suggest to some that, perhaps, these errors were more than mere oversight. Could this be why the agency is so "pleased" with this resolution? Will Indiana motorists ever be assured that the culture of incompetence (if not worse) that the BMV seems to have fostered is no longer the status quo? Or will even more "overcharges" and lawsuits result? It's fairly obvious who is really "pleased to have resolved the issue", and it's not Indiana's taxpayers who are on the hook for the legal fees generated in these cases.

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