The Legal Advocate

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Why You Should Start Thinking About Your Trial Technology Well Before Trial

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written my guest blogger and NITA faculty Wayne Stacey

Courtroom technology is not about slick presentations and overdone graphics. Courtroom technology is about helping jurors follow your story and remember the supporting exhibits. It is also about engaging each juror’s individual learning methods.

While we often focus on the usage of technology as we approach trial, the focus should begin much earlier. In today’s civil trials, key witnesses are often outside the trial-subpoena power of the court. That means the only way to present those witnesses’ testimony to the jury is through deposition playback.

Anyone who has sat through video playback knows that it can be brutally boring and difficult to follow, which means that the jury will likely miss the point and overlook important evidence. The jury sees witnesses questioned in the open-ended style common to depositions rather than the leading, cross-examination style common to trials. As a result, the jury is left with a meandering series of questions and long answers rather than a crisp cross-style trial presentation. And most damaging, the jury is left with no easy way to link the video testimony with the trial exhibits.

To solve this presentation problem, focus on creating the material for engaging video clips during the depositions. Consider yourself the director in a short movie. The witness is your actor, and the exhibits are your props.

Trial technicians bring your vision as director to life. They can sync video playback and exhibits in a split-screen view to create a visually engaging video. But more importantly, they can draw the jurors’ eyes to the key material through annotations. The example below shows how a good trial technician can link witness, exhibits, and annotations. The video playback in this example looks more like a live-witness presentation than typical video playback. The witness is shown in the upper left corner. The exhibit is shown simultaneously on the right side of the screen. The trial technician creates a callout over the exhibit—helping the jury understand the origins of the callout. And finally, the trial technician can annotate, in real time, the exact material corresponding to the witness’ testimony. This arrangement makes the story and the evidence easy for jurors to follow. Jurors are not required to flip through paper exhibit copies or search a screen for the relevant material.

This type of engaging video playback does not happen by accident. Trial technicians need guidance when selecting exhibit clips and annotating the clips. The deposing attorney must provide that guidance through carefully-crafted deposition questions. Rarely will courts allow a technician to clip or highlight exhibit material not clearly called out by the deposing attorney or the witness. Think about these questioning techniques as controlling the eyes of the witness, the trial technician, and the jurors. All of this must be set up in the deposition.

Three steps will guide trial technicians and the jury through typical exhibits. These techniques must be rolled out during the deposition to make them useful.

  1. Introduce the exhibit properly: Often exhibits are introduced mechanically in a deposition, such as by introducing the document as Exhibit 1 and then explaining that Exhibit 1 is marked with Bates No. 743,231. The mechanical introduction is useful for record clarity, but it is not useful for the jury. For example, the exhibit number used in deposition frequently does not match the exhibit number used in trial. Jurors are unlikely to do any conversion between deposition exhibit number and trial exhibit number. And few jurors will connect with an exhibit’s bates number. This type of mechanical approach would rarely be used at trial.
    If the exhibit is one that the jury should see, remember, and understand, introduce it with the video playback in mind. Guide the witness in the deposition to the key identifying features of the document such as title, date, signature, etc. The trial technician can follow this guidance and highlight those identifying features for the jury during the video playback.
    In the example above, you would want to direct the witness to the company name, “Data Dynamics Corporation;” the document title, “Quarterly Income Statement;” and the time period, “For the Period July 17, 1987.”
  2. Guide the witness to the correct section of the exhibit: Once you have introduced the document to the deposition witness (and the jury), guide the witness to the correct section. Try to set the stage for the section that the witness (and eventually the jury) is seeing. Call out identifying material such as chapter headings, section titles, paragraphs, etc. The trial technician can highlight this material based on the deposing attorney’s questions.
    In the example above, you would guide the witness to the totals section that includes the “net sales” and “costs of sales” information.
  3. Guide the witness to the exact material that you want the jury to see: If you have done steps 1 and 2, the jury should be following your questions about the exhibit. They know what document you are asking questions about. They know the section you are focused on and how it fits into the whole exhibit. They are following the testimony and the visual presentation because the trial technician is guiding their eyes by highlighting material corresponding to your deposition questions. And with a final question, you guide the witness (and trial technician) to the exact material that you want the jurors to remember.
    In the example above, you would direct the deposition questions to the specific “gross profit” entries. The jury could forget everything else about the exhibit, but they should remember the approximately $400K in profits. They saw the number with their own eyes—because the trial technician highlighted it for them. They know where the number came from because you guided the witness (and the jurors) through the exhibit.

Courtroom technology does not make your story better. Technology’s role is to help you visually tell the story and help your jurors remember the evidence. The next time you are drafting your deposition outline for a deposition that could be played at trial, ask yourself what type of video are you creating. Are you creating something that the jurors can follow? Are you introducing evidence in a way that the jurors will visually follow? Or are you creating something destined to put everyone to sleep? Whatever you create, it starts with the questions you ask in the deposition. The conventional wisdom of asking open-ended deposition questions is not always the best solution.

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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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