Thursday, March 28, 2013

ARTICLE: THE FUTURE IS NOW


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.

 One such company, Exhibit A, is run by Joe Cardoni with offices in Northeastern Pennsylvania, Philadelphia, and New Jersey.  Cardoni and his colleagues have been in the business of providing digital services to attorneys for the past nine years and have participated in hundreds of trials and ADR proceedings.  The following review of the increasing use of computer services in civil litigation matters is generated from an interview with Joe Cardoni as well as from prior personal experience in the use of computer powered presentations at trial.

 Computer Friendly Cases

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. 

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.

 Allowance by Court

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.

 Additionally, it has been said that people generally retain about 25% of what they hear, 30% of what they see, and an impressive 50% of what they both hear and see.  In courtrooms where a judge allows jurors to take notes, the retention rate could be has high as 80-85% with the use of a computer powered presentation.  By using powerpoint for openings and closings the jury will obviously hear and see information a piece at a time as they follow along in the presentation of the case. 

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. 

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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