This morning I participated as a presenter at the CLE seminar entitled "Ipad for Lawyers." The seminar took place in Scranton, PA and featured JP Cardoni and Leah Cardoni of Exhibit A, a digital pre-trial and trial support company, along with Attorney Melissa Scartelli of the Scranton, PA law office of Scartelli & Olszewski.
In conjunction with that presentation, I thought I would reprint my article below on the power of powerpoint presentations at trial.
THE FUTURE IS NOW:
Computer-powered case presentation
may be a necessity to persuade today’s juries
by
Daniel E. Cummins, Esquire
In today’s society, computer powered presentations and displays are seen everywhere one looks. With the world’s reliance on the internet for information, it seems as if no data or news is disseminated anymore without some colorful and eye-catching computer graphics. In other words, the idea of a future world where information is provided primarily through the use of computers has arrived.
As such,
when jurors are summoned to the courtroom in this day and age, they may come
with the expectation that the case will be presented in a manner that is
consistent with how they receive all of their other information in society,
i.e. in a visually stimulating and computer generated fashion. An attorney who instead simply presents as a dull
talking head who relies on index cards or notes along with enlarged exhibits on
posterboard may thereby sorely disappoint jurors to the detriment of his or her
client.
Accordingly,
there has been increasing trend in civil litigation in the use of computer
generated presentations at mediations, binding arbitrations, and trials in both
the federal and state court contexts. As
a result, various companies offering computer consulting services to litigators
have prospered across the Commonwealth.
Obviously, not every case demands a computer powered presentation. Although demonstrative exhibits should still be used in simple cases of clear liability and straightforward damages, such cases may not require a computer generated presentation from either a plaintiff or defense perspective.
In terms of
a proper case for a computer powered presentation on the plaintiff’s side,
Cardoni noted that cases involving photos showing significant property damages
or graphic personal injuries may benefit from the use of computer graphics. Additionally, in cases having a lack of a
prior medical history and/or a lengthy and continuous post-accident treatment
history, the use of a timeline in a powerpoint display can be visually
compelling way to convey to the jury that all of the plaintiff’s damages are
all related entirely to the subject accident.
On the
defense side, automobile accident cases with liability issues may benefit from
the use of photographs of the accident scene or photos depicting minimal
property damages through a powerpoint presentation or the Trial Director computer
program in an effort to bring the liability defense to life. Also, cases involving soft tissue injuries
with minimal treatment, or gaps in treatment, can be emphasized through a
defense-oriented timeline up on the big screen for all the jury to see.
Projected Costs
Cardoni estimated that the cost for a powerpoint presentation could range from $2500 in simple matters, such as a one day mediation or arbitration, to a range of $8500 or more for a complex multi-day trial.
Obviously,
the consulting fee includes a series of pre-trial collaborative meetings with
the attorney to create the presentation, the setting up of all of the necessary
equipment, as well as the consultant’s attendance and technical support during
the proceedings. With the computer
consultant providing a high quality viewing of materials for all to see in the
courtroom through the use of a high-resolution notebook computer, a data
projector, as well as a document camera, the trial attorney is given the
freedom to command center stage in front of this colorful and visually
stimulating big screen presentation.
‘But I’m Not Computer Literate’
An attorney’s fear of technology should not serve as a roadblock to the opportunity for a better result on behalf of the client through the use of computers. Cardoni emphasizes that, when working with a company such as Exhibit A to prepare a powerpoint display or computer generated presentation, the attorney will never have to even touch a computer if he or she does not want to.
An attorney’s fear of technology should not serve as a roadblock to the opportunity for a better result on behalf of the client through the use of computers. Cardoni emphasizes that, when working with a company such as Exhibit A to prepare a powerpoint display or computer generated presentation, the attorney will never have to even touch a computer if he or she does not want to.
Rather, the
role of an attorney in preparing the presentation is the same as if computers
were not going to be used. The trial attorney
will still focus all of his or her attention and energy on fully preparing the
case for trial. With or without computer
powered displays, the attorney will still have to come up with a theory of the
case and gather and highlight any and all exhibits in support of that theory. The use of powerpoint and other computer
programs designed for trial use simply allows for a more visually compelling
presentation of the case.
In fact, Cardoni noted that the attorney should not even meet with a computer consultant until he or she has finalized the theory of the case presented and gathered the appropriate exhibits. Once an attorney’s case-in-chief is in “first draft” form, a meeting can be scheduled with a consultant about two weeks or so before trial to review how to apply the case to a computer presentation. At that point, the consultant will get to work on scanning the necessary documents, creating a digital archive, preparing relevant highlights and creating demonstrative exhibits in an effort to bring the case to life.
Cardoni additionally noted that, during the course of the actual trial, the attorney again will not be required to worry about the equipment or in any way work a computer. Rather, it is the job of the computer consultant to set up the computer, the screens, and all the necessary wiring in the courtroom. It is also the job of the consultant to remain at trial at counsel’s table to work the computer and pull up documents and exhibits onto the big screen as the attorney presents the case and questions the witnesses. In this way, the attorney remains free to channel all of his energies on presenting the case in the most compelling and entertaining fashion.
Another beautiful thing about the use of computers in the courtroom is the ability of the consultant to immediately scan and display up on the big screen a document that suddenly becomes relevant during the course of the actual trial. This clean maneuver of displaying a new document to the jury will take the place of an attorney scrambling to have the document blown up as a posterboard exhibit overnight or the time-consuming and momentum-ending process of producing the document to the jury by having it passed from juror to juror.
Another factor in determining whether to retain a computer consultant is the extent to which the judge presiding over the trial will allow such a presentation.
The
computer generated presentation can be considered to be a form of demonstrative
evidence and the finalized work product can be marked as an exhibit.
Whether or
not an attorney will be allowed to use the powerpoint or computer presentation
during opening statements usually depends upon the judge. More innovative judges will typically allow
the computer generated presentation to be used during openings, assuming
everything in the presentation will be placed in evidence during the course of
the trial.
Cardoni noted that, in his experience, a proven analogy used to convince judges to allow for the use of computer generated information is the argument that having bullet points appear up on a screen through the computer is the same as if the attorney was writing on an easel. The use of computer generated bullet points will surely prove to be faster and easier to read.
Other judges may, within their discretion, and with the presumable goal of keeping opening statements shorter, preclude the use of computer generated displays during an attorney’s initial address to the jury. Still other judges may allow its use during openings only when there is an agreement between counsel that demonstrative exhibits can be used at that time.
Once the trial is underway, attorneys will usually have free rein to use the powerpoint and other computer programs during the direct and cross-examinations of witnesses as well as during closing argument. The proviso is, of course, that anything being displayed up on the screen by the computer consultant to the jury is properly stated and displayed, is admissible, and has been previously disclosed to the opposing counsel.
As a professional courtesy and in an effort to avoid any interruptive objections, the attorney using a computer presentation may be wise to first attempt to clear with opposing counsel the particular uses of the powerpoint and other computer programs anticipated during the trial.
Uses At Trial
Cardoni
reviewed the many ways a computer presentation can be used as an effective tool
at trial or ADR proceedings to present one’s case to the jury in a more vivid
and memorable fashion.
As noted
above, timelines may be utilized to visually display to the jury the injured
party’s prior medical history, or lack thereof, as well as the extent of the
post-accident treatment. In addition to
laying out the various important dates on the timeline, the powerpoint
presentation also allows an attorney to have the corresponding documents be
brought to the screen immediately while discussing that timeline event, such as
an emergency room record, or a treatment note. In this way, the jurors will be more likely to
stay with the argument as you move along rather than zoning out due to
information overload.
Even better, under the Trial
Director computer program, the consultant will be able to immediately magnify
and yellow highlight the pertinent portions of the documents being displayed so
as to drive the attorney’s specific point home to the jury. This software also allows the computer
consultant to display two or more documents simultaneously as may be necessary
to compare and contrast evidence, or support or discredit a witness’s
testimony.
Another
effective tool, for both the plaintiff and the defense side, is the use of
calendars to show post-accident treatment histories. With all twelve months of a calendar year
placed up on the screen on a single page in a concise fashion, the consultant
can mark each date of treatment with colored dots, including a different color
for each doctor or physical therapy visit.
In this manner, a plaintiff’s attorney with a client who has treated frequently and consistently, may end up with a calendar year that is as chock full and colorful as a gumball machine, thereby visually conveying to the jury in a compelling fashion the extensive medical treatment completed by the plaintiff as a result of an accident.
Conversely, a defense attorney may utilize the same device to show few colored dots spread out in a wide fashion for a plaintiff who has had minimal treatment, or who has large gaps in treatment. Through this clear display of minimal or sporadic treatment, the defense counsel may visually call into serious question the plaintiff’s claims of great pain and suffering.
Cardoni also noted that the computer consultant should have the ability to create 3D models of objects involved in the litigation as well as animations as to how the injury-causing event occurred. Whether these items will be allowed into evidence during trial may become an issue. Certainly, in the less formal ADR mediation and arbitration proceedings, such displays are generally permitted.
It was additionally noted that the computer consultant should also have technical ability to play back video depositions and surveillance tapes. In this manner, the party may save on the cost of separately retaining another video playback company to appear at trial. The video playback by a computer consultant can also have the additional benefits of including closed captioning, cuts to screens showing and highlighting the actual documents being referred to by the expert during his testimony, as well as the creation of clips of the important parts of the testimony to be played back during closing argument.
Last but
certainly not least, the trial attorney can also benefit from having a computer
consultant at his side at trial in that the consultant can keep an eye on the
tone of the jury when the attorney is otherwise preoccupied with the case. The attorney may also secure from the
layperson computer consultant his viewpoint on how the case is going and what
changes in strategy may be advisable based upon what has already developed
during the course of the trial up through the time of closing argument.
Closing Argument
The most compelling use of a
computer generated presentation at trial will come during the closing argument.
As stated, information is generally disseminated nowadays in a visual, computer-powered fashion. Today’s younger generations, i.e. tomorrow’s jurors, are totally immersed in computer generated information sources at work, at school, and at home. Without rapid fire, visually stimulating blips of information, these tech-savvy jurors may simply tune out and daydream the trial away and thereby reach the deliberation room to decide the case in a manner not based in any way on one’s presentation of the evidence in the courtroom.
During closing argument, all of the
forms of a computer generated presentation noted above that may have appeared
during the course of the trial can be reiterated in a single, coherent and
memorable fashion for all the jury to see, hear and, most importantly, retain
in their memory.
Even better, the digital presentation displayed up on the screen as a timeline or in the form of bullet points of information can serve as the attorney’s notes, enabling counsel to present the closing argument free from reliance on any notes. The closing argument will flow through the courtroom in a more forceful and credible fashion as the jurors not only listen to counsel’s argument but also see it unfold before them up on the large video screen in an unforgettable fashion.
Thus, there should be no question about the importance of computer powerpoint presentations in the courtroom, particularly with respect to closing argument where counsel has the widest latitude to make his last pitch to persuade the jury, arbitrator, or mediator to accept the theory of the case presented.
Even better, the digital presentation displayed up on the screen as a timeline or in the form of bullet points of information can serve as the attorney’s notes, enabling counsel to present the closing argument free from reliance on any notes. The closing argument will flow through the courtroom in a more forceful and credible fashion as the jurors not only listen to counsel’s argument but also see it unfold before them up on the large video screen in an unforgettable fashion.
Thus, there should be no question about the importance of computer powerpoint presentations in the courtroom, particularly with respect to closing argument where counsel has the widest latitude to make his last pitch to persuade the jury, arbitrator, or mediator to accept the theory of the case presented.
Surely, an attorney utilizing a computer powered presentation in support of his client’s case will appear to present the more visually compelling case than an attorney who does not. In today’s computer age, where the computer oriented transfer of information is the norm, sometimes that may be all it takes to win a trial or ADR proceeding.
Daniel
E. Cummins, Esquire is an insurance defense attorney with the Scranton , Pennsylvania
law firm of Foley, Cognetti, Comerford, Cimini & Cummins (www.foleycognettilaw.com). In addition to being a civil litigation
columnist with the Pennsylvania Law
Weekly, Attorney Cummins also writes for his blog entitled Tort Talk (www.torttalk.com), which provides updates
on Pennsylvania
law.
This
article is reprinted here, with permission, from the August 25, 2008 issue of the
Pennsylvania Law Weekly.(c) 2009 Incisive Media US Properties, LLC. Further duplication without permission is
prohibited. All rights reserved.
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