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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 called our nation a nation of cowards because we didn't want to talk about race. That was a cheap shot coming from the top cop. The man who decides who gets the federal government indicts. Wow. Not a gentleman if that is the measure. More importantly, this insult delivered as we all understand, to white people-- without him or anybody needing to explain that is precisely what he meant-- but this is an insult to timid white persons who fear the government and don't want to say anything about race for fear of being accused a racist. With all the legal heat that can come down on somebody if they say something which can be construed by a prosecutor like Mr Holder as racist, is it any wonder white people-- that's who he meant obviously-- is there any surprise that white people don't want to talk about race? And as lawyers we have even less freedom lest our remarks be considered violations of the rules. Mr Holder also demonstrated his bias by publically visiting with the family of the young man who was killed by a police offering in the line of duty, which was a very strong indicator of bias agains the offer who is under investigation, and was a failure to lead properly by letting his investigators do their job without him predetermining the proper outcome. He also has potentially biased the jury pool. All in all this worsens race relations by feeding into the perception shared by whites as well as blacks that justice will not be impartial. I will say this much, I do not blame Obama for all of HOlder's missteps. Obama has done a lot of things to stay above the fray and try and be a leader for all Americans. Maybe he should have reigned Holder in some but Obama's got his hands full with other problelms. Oh did I mention HOlder is a bank crony who will probably get a job in a silkstocking law firm working for millions of bucks a year defending bankers whom he didn't have the integrity or courage to hold to account for their acts of fraud on the United States, other financial institutions, and the people. His tenure will be regarded by history as a failure of leadership at one of the most important jobs in our nation. Finally and most importantly besides him insulting the public and letting off the big financial cheats, he has been at the forefront of over-prosecuting the secrecy laws to punish whistleblowers and chill free speech. What has Holder done to vindicate the rights of privacy of the American public against the illegal snooping of the NSA? He could have charged NSA personnel with violations of law for their warrantless wiretapping which has been done millions of times and instead he did not persecute a single soul. That is a defalcation of historical proportions and it signals to the public that the government DOJ under him was not willing to do a damn thing to protect the public against the rapid growth of the illegal surveillance state. Who else could have done this? Nobody. And for that omission Obama deserves the blame too. Here were are sliding into a police state and Eric Holder made it go all the faster.

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