The Legal Advocate

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Basic Trial Technology Skills

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

Trial technology is an umbrella term used for the ability to display exhibits in court electronically. When done right trial technology creates amazing efficiency and clarity of argument in the courtroom. Efficiency and clarity are obtained by the use of a shared set of monitors or projectors in the courtroom with exhibits available at a few keystrokes. Using technology allows lawyers to save time by quickly displaying exhibits in a shared viewing environment rather than passing around an exhibit that must be retrieved from a box and then a folder. Clarity comes from navigating an exhibit and showing the relevant sections clearly (via a large call out or projection of the selected text) contained on a computer.

There are four basic skills related to trial technology. These skills relate to the ability to perform the basic presentation of a handful of exhibits. Larger and more complex cases require advanced technical skills (see #4 below), and directing staff members or new associates into technical service is likely a bad idea.

  1. Electronic exhibit creation: The ability to create exhibits into a PDF or other image format for exchange and presentation.
  2. Basic Hardware competence: To connect a laptop to a projector or display.
  3. Software competence: To use a program to display exhibits in the courtroom whether a specialized trial presentation program or PowerPoint or Adobe Acrobat.
  4. Experience recognition: The ability to recognize when you are in over your head technologically and either invest in training/equipment and or a trial presentation vendor.

The skills and abilities go hand in hand with the selection of hardware that meets the minimal standards of the software intended for use at trial. In other words, you need the right equipment and software to do the job. For smaller cases specialized trial software is likely not necessary. You could simply open a PDF, spreadsheet, PowerPoint or Word document and display it onscreen. As your evidence presentation needs grow or become more complex, you will need progressively higher level technical skills and a dedicated in-house resource or a vendor.

The cost barrier to quality equipment and software has been greatly reduced. For example, a good trial laptop can be found for under $1000; there are many presentation software options (like PowerPoint and Prezi); training on specialized legal presentation applications like TrialDirector is plentiful and can be found at public university, trial software vendors and private programs; and there are many trial presentation vendors that can assist legal teams with their presentation needs.

Basic trial presentation (where only a handful of exhibits are displayed) is analogous to electronic court filing (ECF) using PDF files. The basic skills required for ECF are nearly the same as for trial presentation. One must be able to turn on their computer, generate the output of a PDF by converting a word processing, spreadsheet, presentation or other file type, and connect it to an external monitor or projector. Basic trial presentation really is no different; exhibits can be created and presented in PDF or their native application – no special software necessary. It is typically connecting to an external monitor or projector that gives teams the most issues and an area where lawyers should focus their technical skillset.

With cost and training barriers falling rapidly we continue to hear horror stories about computer failures in the courtroom. When done incorrectly the use of trial technology is excruciatingly painful to watch and all efficiencies are lost while lawyers troubleshoot their computers while judge and jury wait and watch. Even amongst big firms with large complex matters (i.e. – $$$) there can be a great deal of variation between the technical skills of the plaintiffs and defense ability to present at trial.

The inept use of technology in the courtroom provides the impression that the presenting attorney simply does not care about the judge and jury’s time. On the other hand, not using technology (especially if it is present in the courtroom or only one party is using it) is potentially frustrating to judge and jury because it produces a negative belief that the attorney lacks technical competence or similarly does not care about their time.  It’s worth noting that so called “David and Goliath” arguments are quickly becoming invalidated due to juries expecting legal teams be able to present technically to keep things interesting and moving along.

The horror stories about technical meltdowns are often true and defeat the efficiency goal of using trial technology because of the significant delay and frustration which are counter to their use. Technical issues are one of the main barriers to widespread technology implementation in the courtroom as judges use their worst courtroom experiences in deciding whether to allow subsequent use of technology in their courtrooms. A few examples:

  • An attorney asked to shut down their equipment after many errors and to use opposing professional trial tech.
  • Equipment failures and crashes that cause delays rather than efficiencies.
  • Presentations going “haywire” in the courtroom causing frustration and more technological delay.
  • Blaming technical issues on the courtroom IT staff or equipment.
  • Destroying or misusing courtroom equipment and furniture such as by disconnecting equipment and cables or using packing tape (rather than nondestructive gaffing tape) on furniture and flooring.

The horror stories for the most part are not tales of something gone unexpectedly wrong but are often due to poor preparation. A small error or two is OK but bumbling and stumbling throughout multiple delays and issues crosses a line. To be sure, technology issues will happen and computers will crash so you should have a backup plan for when technical issues occur.  For example, you may want several copies of your presentation or exhibits printed for distribution to the judge, witness and opposing counsel. You may want a backup computer ready to go with the presentation on it or to have a copy on a thumb drive.

In closing, the technological barriers for the use of technology in courtroom are quickly falling. The hardware and software have become cheaper to buy and easier to use while performance has drastically increased. It is easier than ever to find training through vendors and university programs – and many basic skills can be learned by performing a search on youtube.com and watching a video for free. With advance testing of equipment in the courtroom and practice on their equipment and software of choice, basic trial presentation skills are within reach for most attorneys and legal teams. Last, legal teams should be aware when they are in over their head with complex matters that may require a trial technology specialist when working with large volumes of data or require more complex technical skills like video editing so they can concentrate on their legal arguments rather than technical issues.

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
Email Shannon at: Shannon.Bales@FTIConsulting.com

30(b)(6) Rules: Deposing the Corporate Representative

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The Rule 30(b)(6) organization deposition is the most powerful and efficient discovery tool available in complex litigation. In this handy and practical guide, author David Malone will help you get the most out of your chance to talk to – and pin down – organizations. Some of the topics include: obligations of both parties, understanding the specifications, how the Rule 30(b)(6) deposition affects nonparties, and more!

Retail Price: $39

Available in: Print, Epub, Mobi

Hold Technical Non-Compliance Accountable To Move Efficiency Forward

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

We all want to do our part to make courts and the trial process more efficient. Technical efficiency helps us present our case better by being organized and having the data at our fingertips; it lowers the cost to clients and eases the burdens on courts with backlogs of cases by being faster. Unfortunately, for many legal teams the use of technology at trial is an afterthought. Teams that don’t fully work out and understand the technical requirements for exhibit exchange or test their equipment prior to trial or even worse ignore agreed upon specifications during trial create barriers to efficient exchange of information at trial, slow down the administration of justice and create risk in the courtroom for technical failure.

There are great working benefits to legal teams of having your technical house in order (organization, technical compliance, war room performance). Simply being able to create, share and print an exhibit quickly is a tremendous benefit (and possibly a competitive edge) to a legal team in terms of being able to prepare and present. Going into trial, teams should have a very solid understanding of what their technical responsibilities and burdens will be when they agree to the technical specifications for an exhibit exchange. Lawyers should consult with team members who are familiar with the data as it currently stands and those that will be working with it at trial (typically a database/lit support person and a trial tech) so the best choices can be made in working with the teams’ data. You would be surprised at how often the plaintiff and defendant make combined decisions that are counter to their own self-interest and create tremendous burdens on their respective support staffs to comply with that are completely unnecessary. Last, there is a vibrant inhouse and consultant community that can assist and should be consulted upon in preparation for and during trial.

Some initial considerations:

  1. Initial technical considerations
    1. What format is our data currently in?
    2. Is there an exhibit exchange format that parties can agree to that lowers our technical burdens and workflow? (i.e.- what format will make this easy?)
    3. How much video and clipping does the case have?
    4. In house or Consultant trial tech
    5. Have the parties’ technical representatives been introduced and have they been empowered to resolve issues?
  2. Create a specific Trial Management Order
    1. What format PDF, TIFF, JPG
    2. What format load file (if required)
    3. Easy naming convention – Don’t overcomplicate exhibit names and branding
      1. Use Short/Simple prefixes (TX = trial exhibit, P = Plaintiff, D = Defense)
      2. 4 digit exhibit number and 4 digit page number is common
        (Example: TX0001-0001)
  • How to identify redacted exhibits in file naming conventions
    (Example: TX0001R-0001 – “R” for redacted)
  1. Are there color considerations?
  2. Can exhibits be straightened, darkened, or otherwise edited?
  1. Have sample files been exchanged and approved by both sides?
  2. How will video clips be exchanged?
    1. Recommendation: Exchange complete video as it will be played in court including sync’d documents to be played.
    2. Run sheet?
  • Synchronized files to be displayed?
  1. What is the exhibit creation workflow?
    1. How will exhibits be created?
    2. How will exhibits be named and branded?
    3. How will case data be managed and organized?
    4. Does the team have the right software?
    5. Who will be responsible for intake, processing and QC?
      1. Many teams use a “gatekeeper” to intake and process all files.
    6. Will the legal team need vendor help to convert and process files?
  2. Courtroom equipment rental and setup
    1. Recommendation: Use a 3rd party vendor
      1. Professional setup
      2. Split invoices
    2. Equipment testing and setup
      1. Teams should test the equipment (the actual equipment) to be used in the courtroom
        1. 50%+ of errors would never occur “but for” basic testing and configuration beforehand
      2. How will exhibits be exchanged?
        1. Is there a time limit for exhibits to be used next day?
        2. Email distribution list for confirmation?
        3. FTP may not be a good exchange mechanism for large or voluminous files that are needed for next day use due to upload/download speeds.
      3. Exhibit Presentation
        1. Use the exhibit number always
          1. Consider correcting the record for misidentified exhibits (i.e. – those identified using a number other than the exhibit number)
        2. Practice communication with the trial tech if you use one
          1. Use the exhibit number
          2. Do you know the difference between a highlight, callout and zoom?
  • Rehearse and practice presenting and communicating
  1. Practice what to do when equipment fails or exhibits crash

Those that don’t do their part are doing the legal community (and perhaps their client) a huge disservice. How can a team that does not understand their own data, take basic QC steps for their own technology or know how to comply with simple exchange standards be working efficiently themselves? A non-compliant exchange of exhibits incurs much risk for legal teams and can cause failure and delay in the courtroom. For example, delivering in technical formats that aren’t readily usable in court or were not named or branded correctly may cause the receiving team to work thru the night to convert the electronic files into a usable format. Plain and simple this is burden shifting and whether calculated or not, it is wrong and hampers the adoption and use of courtroom technology. Teams should be held accountable when they shift the burden and if egregious should be brought to the attention of the court.

Another example of avoidable error is when lawyers do not test their equipment in advance of trial. According to an informal survey of courtroom IT, more than 50% of problems are avoidable if attorneys simply tested their equipment in advance. The impression of attorneys who bumble and stumble through their presentation, technical failure or connecting their equipment by decision makers like the Judge and Jury is overwhelmingly negative. There are other signs that a party’s technical house is not in order. For example, when they use something other than the exhibit number to call out exhibits like an old bates/production number or their exhibits aren’t branded as agreed upon. Typically, it means they have not taken the steps necessary to prep data for efficient exchange and more importantly can cause significant Juror confusion by not using the correct naming convention (i.e. – the exhibit number).

In conclusion, Courts and legal teams are holding legal teams accountable for their noncompliance with exhibit exchange requirements, avoidable technical issues in the courtroom, and technical shenanigans. For many cases the volume and complexity of data is becoming routine so new methods of approaching trial should be considered that contemplate including those with technical expertise in the decision-making process and to hold firms accountable for their trial work product. One way to hold both sides accountable is to create a specific exchange agreement that contemplates technical, branding and naming formats for exhibits and video clips. Last, document exhibit exchange issues (time of exchange, technical compliance, quality issues, etc.) so that it can be brought to the courts’ attention if not immediately remedied or if it becomes a continuous problem. Parties that don’t comply should be compelled to do so.

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
Email Shannon at: Shannon.Bales@FTIConsulting.com

Jury Speech Rules: The Art of Ethical Persuasion

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Authors David M. Malone and Warren S. Radler show trial lawyers that persuasive jury opening statements and closing arguments require imagination, storytelling skills, and a thorough knowledge of legal and ethical rules in their third edition of Jury Speech Rules: The Art of Ethical Persuasion. By using famous historical cases and many useful examples, they are able to demonstrate when things go wrong vs. when they are done right.

This book is broken down into three chapters which demonstrate the importance of opening statements, closing arguments, and ethics. By using real-life examples, the authors are able to engage readers with cases they may be familiar with and teach them how to establish a theme, present a theory, and become a storyteller.

Retail Price: $39

Order Here: Print

Pre-order Here: Epub, Mobi

Avoid Trial Equipment “Potluck”

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

There are so many difficult technical decisions as you approach trial and one of them is equipment selection. It is often thought of as a distraction to legal teams but just a few minutes of the legal teams’ attention on this issue (which might mean discussing it with the Judge) can potentially prevent disaster. Before I begin the discussion, let’s get out of the way that there are cases where parties might cobble together a few pieces of equipment they own and work together using what they have due to budget, case size and technical ability. However, in cases where two equally yoked parties have agreed to split costs there can only be one solution and that is to use a neutral third-party equipment vendor.

While on its face it might be reasonable these kind of “bring your own equipment” arrangements (equipment “potluck”!) are potentially problematic. A legal team runs the risk of having a less professional appearing presentation or worse, one with technical issues that can’t be resolved because you don’t have a responsive vendor with an obligation to assist you. Undoubtedly “potluck” equipment tends to be much lower quality than the cutting-edge equipment that you can get from a vendor.

Using a 3rd party vendor provides equal access to quick replacement equipment and technical know-how. Separate invoices can be created and each party will be responsible for its “half”. This gives both parties equal access and expectation to a vendor to service and support their trial needs. A reputable 3rd party vendor will have replacements available, technical expertise, and be on call for any issues that occur as well as likely having a large selection of equipment (and expertise) that can be used to equip your particular courtroom technical need. How likely is the court to delay proceedings for a team if the equipment malfunctions and there is no plan for immediate replacement? Last, if things get contentious (and don’t they all at trial?) can you rely on the other side to troubleshoot and configure your equipment like you could a 3rd party vendor?

Regardless of where the equipment comes from you must have a plan on how malfunctioning equipment will be replaced and how long will it take to replace it. An independent vendor is much better situated to address the needs of both parties and to replace problematic equipment. The court might grant a long lunch to get a replacement together but are they going to wait a day for equipment to be shipped or purchased from somewhere? What is the responsibility of the equipment providing team to replace, configure and troubleshoot equipment for the other side? If it comes down to servicing their own team or troubleshooting technical issues for the other side where do you think they will come down? Your problems will quickly become unimportant and you will be left holding the bag of a potentially error prone presentation, or one that simply does not look right on screen because you didn’t get the attention a 3rd party vendor brings. Parties should be able to clearly answer the questions above or they are simply injecting unnecessary risk into the equation or are worse, trying to pull a fast one.

A common ploy being used by less reputable teams is to offer to substitute a key piece of equipment (usually the projector) for their own projector. While not always unscrupulous, the risk of not having a replacement or equal access to technical expertise far outweighs the benefit of a single lower priced piece of equipment. Most often this done so the offering team can either obtain the rental fee for their piece of equipment (XYZ company is charging 500 per week for a projector – I’ll only charge my client 250!) or to avoid their half of the shared setup bill. Worst case scenario is when the setup is held “hostage” (meaning they will not proceed with setup) by one party so they can get what they want. On the other side of the coin, if you are providing equipment and it breaks during the other sides’ presentation are you ready to take the heat and ugly accusations that come with it? It’s great if you have a projector at your firm that you can lug around for client meetings but do you have a second one in case the bulb burns out or you drop it on the courthouse steps? Do you want to be in the business of supporting your rival? It’s just not worth it.

Another tactic to look out for in equipment provided by the other side is equipment that might provide an unfair advantage. For example, what if the other side brings a large touch screen monitor that you have no experience with? Do you want to fumble through your presentation and put your technical incompetence on display on a piece of equipment they have likely practiced for months on? In such cases, once again it is important to agree on the equipment to be used, to take the time to become familiar with it and if it is something that could potentially provide an unfair advantage that either access and training are provided, or it is simply excluded from use.

In closing, get agreement with the court to committing to the use of a 3rd party vendor so the gamesmanship mentioned earlier doesn’t occur and the setup is just a formality rather than a “hostage” negotiation. Second, use a 3rd party vendor to handle equipment needs because it provides stability and lowers risk of technical malfunction to the courtroom technical environment via equal access to expertise, maintained equipment and timely replacement of malfunctioning equipment. Both parties are able to have an equal expectation of service and support as well as the ability to split the bill on separate invoices avoiding headaches and unnecessary drama.

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
Email Shannon at: Shannon.Bales@FTIConsulting.com

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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