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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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