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E-Trial
Visual Strategies:
Winning
with the Electronic Trial:
Part
One
By Scott
Oliver (Milbank, Tweed, Hadley, & McCloy), Douglas Filter
and Shea Caron
Developing
Basic Case Strategy
All
attorneys are constantly seeking every advantage to make their cases
stronger, more powerful and more persuasive. Each time we walk into
a courtroom, our objective is to walk out with a judgment in our
client's favor — a win.
We
have a large variety of tools available to us to assist with case
preparation and presentation, including document management systems,
digital graphics and animations, and sophisticated courtroom presentation
systems. This level of litigation support can be very alluring and
quite effective, as long as we all remember that these are simply
tools to assist in presenting our solutions —
they are not solutions themselves.
In
the most effective electronic trials, the message and the facts
of the case take center stage — just as in all effective
trials. The media seamlessly integrates, highlights, and illuminates
the story, the facts, and your verbal presentation.
Before
turning to any technology tools, you must cover the tried-and-true
basics. What is your case strategy and what information do you need
to present? Then,
as you consider an e-trial, you must add a few more elements into
your case preparation as you prepare for the visual aspects of the
trial.
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Is
this a document-intensive case? |
| • |
What
existing visuals are available such as video, photos, plans
or drawings? |
| • |
What
will you need to do with the deposition testimony in the courtroom? |
| • |
Were
the depositions videotaped? If so, do you have the transcript
in a format that allows you to search it easily for key words
or ideas? |
| • |
What
critical points must the jury grasp in your opening statements,
case-in-chief and closing arguments? |
| • |
As
each of your witnesses testifies, will visual support help drive
home important case elements to the judge and/or jury? |
| • |
Which
witnesses concern you the most due to either content or capability? |
After
you're comfortable with the answers to these questions, you are
ready to develop a visual strategy for your case and add in other
litigation support tools.
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Beginning
a Visual Strategy
Developing
a successful visual strategy involves understanding your visual
requirements and the most appropriate technology with which
to present them.
Careful
planning and practice can ensure that you avoid any nightmare
scenarios in court. You have certainly heard stories of exhibits
that wouldn't properly display or machinery that failed at
the moment of truth. With a trained and prepared litigation
team on your side (and by your side in court to operate the
equipment), your visual presentation can become fail safe.
How do you begin a visual strategy?
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| 1. |
Develop
the message. What are your five key points and what
images can best explain them?
Is
a timeframe key to your case? Then consider a graphic chronology.
Are you explaining a physical action? A dynamic animation
can let the jury see the action for themselves. Other images
such as charts, illustrations, or documents with enlarged
and highlighted copy may drive home your message.
Take
inventory of your visual requirements. Do you have the basic
images to work from or will you need a team to create visuals
from scratch? |
| 2. |
Define
the presentation. At which points of your argument
will you incorporate visuals? Remember that technology complements
your message; it doesn't become the argument.
How
will your case unfold in court and what points will be most
powerful by just your talking directly with the decision makers?
At other points you will want to move into the background
and let a chart distill complex information for the jury.
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| 3. |
Select
the most appropriate media for each element of the presentation.
Some points are best illustrated
with a single chart while others need something
more dynamic. We cover these media options more thoroughly
in the next section of this paper.
Take the time to work
with your litigation team and carefully consider your media
options. Having your decision makers engaged and fully involved
in your case is every attorney's goal. Watching a jury react
to a powerful point enhanced by the right visual and media is
an astounding sight. |
Matching
Media to Document-Intensive Cases
Several
media options effectively support document-intensive cases. Traditionally,
you may have produced copies for the jury, drawing their attention
away from your point and to the physical business of passing and
shuffling papers. You may have presented a foam-core "blow up" of
the document or used an overhead projector to display a transparency.
Other lower-tech options include dropping the documents onto a disc
and showing them on a TV monitor or using an "Elmo" to capture a
video image of the paper.
Although
these options have certainly been successful in many trials, each
has some technical, organizational, visual or financial shortfalls.
Many of these options are simply too expensive and cumbersome to
implement with hundreds or thousands of trial documents. How many
foam-core boards do you want to bring to court?
Incorporating
newer technologies into your case allows you to manage a much larger
quantity of documents during discovery and through trial.
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Scanned Image Presentation
Systems |
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Attorneys
are turning more frequently to systems such as the Interactive
Presentation System (IPS). You can store large quantities
of documents and graphics then sort through them slide-show
style on a computer monitor. Of course, adding a large-format
plasma screen monitor or individual monitors mounted around
the courtroom adds drama and intensity to the slide show.
The
IPS is managed via remote control to make it easier to switch
images while moving around the room. The presenter is not
tethered to a keyboard. Four prominent features of these systems
make them especially attractive for making dramatic and impactful
points.
| • |
Call
out sections of a document and easily enlarge portions
of the text for focus and readability. |
| • |
Write directly
on the screen in real time in the "John Madden" telestrator
style to make special emphasis. Enlarge key elements and
boldly circle in red an especially damaging phrase or
signature. This instant annotation can powerfully persuade
a jury. |
| • |
Search and
retrieve thousands of graphics and documents quickly.
|
| • |
Incorporate
deposition testimony into the visual presentation or select
other views of the information. |
These
document systems provide the trial team with enormous
flexibility for a surprisingly low cost.
With the right document
evidence and the correct media, your argument can be devastating
to the opposing side. |
Matching
Media to Complex Information
If
you find yourself with highly detailed or complex information, your
judge and jury will likely not be experts in the field in question.
Yet, they're tasked with sorting through the information and making
an informed and sound judgment.
The
attorneys are tasked with making that data clear, concise and understandable.
Using a variety of media types can help you tell your story and
keep the jury involved and engaged.
Computer
animation has advanced tremendously in the last few years and judges
readily accept them in their courtrooms. Animations have become
more affordable as software prices have dropped and animators use
more creative and somewhat less labor-intensive techniques to create
the final sequences. In some cases programmers can incorporate your
existing photographs into the animation to mix the media for maximum
impact.
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Explaining
a Physical Object |
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Many
cases, such as intellectual property disputes, hinge on a
physical object. The jury must fully understand what this
object looks like (inside and out), how it functions and the
nature of the dispute.
In
a recent case involving stolen technology, the employees of
a major technology innovator surreptitiously struck out on
their own and created a plan that attracted investors to build
and market a machine that duplicated a process developed by
their previous employers. Their machine debuted at a major
industry trade show, looking suspiciously similar to the original.
Through a series of three-dimensional (3D) illustrations based
on plans, patents and AutoCAD files, we were able to show
the distinct similarities not only in physical appearance,
but also in process, operation and characteristics. We then
created a series of competing devices from other manufacturers
showing the wide disparity of solutions developed by other
inventors when using their own initiative.
Some
charts listing specifications, with color codes to indicate
similarities to the original device, were also used to further
strengthen the argument that all features were colored, therefore
copied, on the new machine.
The
litigation team chose to present the information using 2D
and 3D computer graphics to break down the physical shape
of each machine, then diving further into the process systems,
then further into the design and function of the devices.
Once the exhibits were used in motions, the restraining order
was issued and a very restrictive settlement was structured.
Explaining
a Location
Other
cases, such as construction disputes or crime scenes, involve
locations. Explaining a building and structural architecture
to non-experts is more daunting than it may seem. However,
2D or 3D animations walk the audience through the space and
allow them to see the location for themselves; thus they no
longer rely on their own interpretation of spatial relationships
and instead "see" what the attorney intends.
Even
without the animation, a large-format demonstrative board,
mapping the location complete with close-ups and call-outs,
can be a helpful tool to keep juror imagination to a minimum.
In
a recent construction case, the evolution of work in a community
center required a chronological build-up of various rooms.
The center needed to be shown as a complex structure, due
to the amount of money that was involved. Creating the building
in 3D from blueprints enabled us to show different parts of
the structure, show the evolution of the construction, and
educate the jurors about techniques, labor and material costs.
The client, a subcontractor who was denied payment,
was restituted completely.
Explaining
Action
3D
animation is perhaps the most valuable when explaining an
action sequence such as an accident, process, chemical or
biological action, microscopic or time-lapse sequences or
other dynamic events. Your case pivots on the physics of motion
so your presentation may be best served by bringing that action
into the courtroom.
Animation
can take you into the heart of a device to explore components
in context, while controlling the story of how they work,
or how they failed, why they are innovations, or how they
were copied.
Using
Multimedia in Less Obvious Cases
Without
tying your media options to such obvious cases, consider some
of the more creative ways that rich media are enhancing arguments.
| • |
Track
complex flows of money and players in securities and bankruptcies.
|
| • |
Define contamination
or remediation in environmental cases. |
| • |
Demonstrate
design problems in products cases. |
| • |
Recreate building
defects and structural deficiencies in construction cases. |
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Finalizing
Your Visual Strategy
As
you finalize your visual strategy, beware of going too far. Don't
make the mistake of jumping off the deep end and relying on technology
too heavily. Your basic case and your own presentation are still
the most valuable portions of your case — the
technology and visuals supplement your argument, but they cannot
present it for you.
An
approach such as, "I want all my visual evidence to appear on a
TV monitor because we are a TV generation," separates the technology
and media choices from the information you're presenting. The information
— your case — must come first.
The media choices only come later as you determine the most effective
way to present each piece of your argument. Many attorneys have
learned costly, but valuable, lessons about visual strategy when
they put the media ahead of the argument. When you start with the
information first and media second, you're now thinking like a visual
strategist.
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Drawbacks
of Onscreen Presentations |
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Although
certain types of information are better suited to an animation
or other graphics presented on a TV or computer monitor, don't
tie yourself to that media unnecessarily. For example, if
your case continually comes back to a sequence of events,
you may want to create a visual chronology that's continually
available for jury reference. But, if you created that same
chronology as a slick computer animation, the jury would lose
that constant reference tool.
Likewise,
a monitor, no matter how big, has a fixed relationship between
the vertical and horizontal measures. In other words, your
presentation is always going to be rectangular! So, certain
graphics, images or documents may not fit effectively. Additionally,
letters and characters must be relatively large to be legible
and not to vibrate on screen. Colors may be best controlled
on printed boards as they are not necessarily "true" on a
monitor.
What
If the Technology Fails?
Everyone
has seen a presentation (in court or elsewhere) in which the
technology just failed. The computer wouldn't boot or the
projector bulb burned out or the monitor lost its red channel.
Using
a litigation
support team to manage the technology and build the presentations
can minimize these risks and increase the professional quality
of the graphics. These teams often travel with redundant
technology and can build onsite
war rooms to rework presentations on the fly. They are
highly skilled at managing technology problems and solving
them immediately. Though no one can absolutely guarantee you'll
never have a panic situation, a trained trial team can resolve
those situations fast and get you underway quickly.
Assessing
Your Comfort Zone
As
you finalize your visual strategy, take a step back and assess
your comfort zone. Are you comfortable using the technology
in court for an e-trial or is your style more in step with
verbal presentation and fewer visuals? Are you prepared to
change your style?
If you are not comfortable
with an e-trial or don't trust the technology, then your audience
will see that and will not trust the visuals as much either.
As you practice your presentation and become more at ease with
an electronic trial and how to move back and forth between verbal
and visual arguments, you will enhance your case and perform
powerfully at trial. |
ABOUT
MILBANK
Milbank,
Tweed, Hadley & McCloy LLP is a premier international
law firm headquartered in New York, with offices in Washington,
D.C., Los Angeles, Palo Alto, London, Frankfurt, Tokyo, Hong Kong
and Singapore. Milbank is a recognized leader in mergers and acquisitions,
capital markets and corporate finance, project finance, acquisition
finance and other major fields of legal practice. Milbank provides
both English and U.S. law capabilities to its clientele, and provides
a full range of services to many of the world's leading financial,
industrial and commercial enterprises, as well as governments, institutions
and individuals.
ABOUT
THE DATA COMPANY
The
Data Company is a full-service litigation support firm
headquartered in Memphis, TN with offices in San Francisco. Our
services include trial support, courtroom graphics and media, document
management, and video services. We rely on a professional staff
with years of experience serving our clients across the country.
Our clients are leading law firms and attorneys involved in litigation
of all scales. They return to us time and again because of our absolute
commitment to quality and our understanding that litigation is a
zero-defect game.
L.
Scott Oliver, Associate, Milbank, Tweed, Hadley & McCloy,
LLP
Douglas
Filter, Director of Creative Services, The Data Company
Shea
Caron, Director of Marketing, The Data Company |
