The Legal Advocate

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July’s Monthly Theme On Technology: Same, Same But Different

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written by NITA guest blogger, Shannon Bales

In Thailand there is an expression – “Same, same but different” it has a wide variety of meanings but is basically used when tourists are shopping for souvenirs at booths that often written have the same goods. That elephant statue…It’s the same as the other one but “different”. In trial technology we encounter the same struggle with a nearly complete lack of differentiation. The exhibits placed on screen are uniformly presented in the same manner, using the same techniques, and the same yellow highlighting and provide little chance for the judge and jury to differentiate between who (visually) the plaintiff is and who the defendant is –, “same, same but different”.

A risk is decision maker confusion as judge and jury view a long list of documents that are so visually similar to previous, subsequent and opposing counsel’s exhibits that they can’t be distinguished from one another. The exhibits are a singular wall of yellow highlights that carry no weight or impact. Legal teams that don’t create interesting visuals of their exhibits are missing out on an opportunity to show some creativity, visually impress the jury, keep things interesting, and provide unique visual ques that decision makers can remember and give a common reference point to. We like to say, “If you highlight everything, you highlight nothing” and a good example of this is the document highlighted below which is very typical of most trial presentations. Typically, the lawyer starts by showing the “to and from”, and then “date and subject,” and then reading the body of the message. Put this document in line with all of the other exhibits being presented in the exact same way by both parties and you really have something that is not memorable at all – just a continuous wall of yellow highlighted documents.

There are many great trial presentation software tools available but there is a lack of variety in the tools and presentation options available. Nearly all of the software tools have highlighters, a circle, square and arrows. Yet even with these limited annotation options one can creaate a memorable and unique display of every exhibit that is shown, really anything but a wall of yellow. Wouldn’t it be great to see some “60 minutes” style document presentation options made right out of the box?

More often than not though, it is often the legal team that decides to not venture beyond the yellow wall. This is often due to the lawyer’s lack of comfort with the technology and uneasiness with handing over some potentially on-the-fly decisions about document annotation to a trial tech. This keeps many teams from releasing the complete creative range of visual options at trial. If you are working with a trial tech don’t be afraid to let them be a bit creative in working with exhibits. Lawyers with some level of discomfort with the technology or releasing a trial tech’s creative side could practice the night before and even pre-annotate documents so they know exactly what they are getting.

Contrast the previously shown yellow wall of highlighting with the sample below. To be sure, I’m not saying you should use all the colors of the rainbow but there are options to make your exhibit presentation more memorable. The use of color and colored shapes in the below example provide lawyers a method to focus the decision maker’s attention where they want it. For example: “the text in the blue box”, “the recipient is in the green highlight”, “the sender is circled in purple at the bottom of the page” all help the lawyer focus judge and jury attention where they want it to be.

Additionally, legal teams should consider how they can vary their presentation from time to time to keep viewers interested by not stacking endless slides or electronic exhibits in a row. Perhaps a board, document camera or other presentation method could be incorporated into your presentation strategy to break up the presentation and keep it interesting. For example, the document camera can be an impactful presentation tool if you make it appealing by incorporating hand movement, thick colored markers and emphasis on what you are trying to feature (i.e. scribble, underline, etc.).

In summary, don’t be the “same, same” as opposing counsel’s presentation – be different. Using color and varied annotations will help you keep viewer interest and provide a reference point for focus and recall. Familiarize yourself with the visual capabilities of your trial presentation software and add impact to every exhibit viewed in the courtroom. Get over your discomfort in working with trial presentation tools by pretreating the annotations (do them in advance) or practicing the night before.

The views expressed herein are those of the author’s and not necessarily the views of FTI Consulting, Inc., its management, its subsidiaries, its affiliates, or its other professionals.

FTI Consulting, Inc., including its subsidiaries and affiliates, is a consulting firm and is not a certified public accounting firm or a law firm.

This article was written by:
Shannon Lex Bales
Managing Director, Trial Technology Consulting FTI
UCLA Paralegal Trial Technology Program Instructor
Trial Technology Author
UN War Crimes Tribunal Legal Technology Advisor
Legaltech Award: Most Innovative Use of Technology During a Trial 2009
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NITA’s team of practicing lawyers, professors and judges from around the nation dedicates its efforts to the training and development of skilled and ethical legal advocates to improve the adversarial justice system.

NITA’s Goals are to:

  • Promote justice through effective and ethical advocacy.
  • Train and mentor lawyers to be competent and ethical advocates in pursuit of justice.
  • Develop and teach trial advocacy skills to support and promote the effective and fair administration of justice.
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