By: Eric Pearson and Angel Reyes
At the most basic level, a
trial lawyer's job is to persuade. Whether the audience is a judge during a
summary judgment hearing, opposing counsel across a table at mediation or a jury listening to an opening statement, the job of a trial lawyer is to persuade someone of a legal or factual position. Using the latest technological tools can create an invaluable advantage over an opponent when it comes to persuading an audience.
Getting StartedThe key to effectively using technology is to get started from the very beginning. Start early by organizing information as soon as it is obtained. Have key documents scanned and coded in
Summation or another document management system that allows for easy searching and sorting of documents. Videotape all depositions and have them loaded into
Trial Director or another system that will allow for future editing and display. Start building a PowerPoint presentation of the case using key documents, deposition clips and graphics.
Also, keep in mind the amazing power of the internet. Use lawyer databases like
Martindale Hubbell to research opposing counsel. Download the latest 10-K of your corporate adversary on
edgar.com. Look for experts on the websites of legal groups such as the
TTLA or the
American Association for Justice (formerly ATLA). Many of these sites can help you locate trial testimony and reports of an opponent’s experts. That kind of information can prove critical for effective cross-examination.
Using Technology Before a JudgeMany lawyers think that technology is only for use at trial. This point of view ignores the fact that a lawyer must often persuade a judge of certain facts before he is ever allowed to present his case to a jury. Make it a practice of using PowerPoint presentations during critical hearings such as summary judgment and Daubert hearings. The new courtrooms in Dallas state court are all equipped with monitors, projectors and overhead projectors that allow for the easy use of such technology.
Using a PowerPoint presentation can help provide the judge with a concise and well-organized presentation of the key legal and factual issues in a case. In summary judgment hearings, video deposition testimony can provide critical evidence to the judge in a way that is easy to follow and understand. PowerPoint allows for manipulation of key documents in the case by bubbling out or highlighting the important language. Outlines of a legal and factual position in a PowerPoint slide show can help keep a hearing organized and on-track.
Using Technology at Mediation
Another area where technology is often under-utilized is during mediation. I cannot count the number of times my opponent at mediation has either declined to give an opening statement or has simply rattled off his or her legal arguments without conviction or passion. In my opinion, this is a major mistake.
Ask yourself how often during the life of a case you will have an opportunity to speak directly to your adversary without having your message filtered through their attorney. Oftentimes, the answer is once at mediation. Typically what your opponent knows about the strengths and weakness of your case has been communicated to them by their attorney, who has his own biases and prejudices, whether conscious or subconscious. Mediation is the one time you can show the other side the critical deposition clips that help prove your case. It is the one time when you can present the key documents in the case from your own perspective. It is the one time you can try to persuade your opponent of the strengths of your case or the weaknesses of their own. Take advantage of this opportunity.
In nearly all of my cases, I come to mediation with a PowerPoint presentation on my laptop and my own projector, screen and speakers. My presentation typically focuses on the key testimony and documents of the case. I also try to incorporate focus group or mock trial results if we have them. By showing videotapes of real mock jurors deliberating the case, I can give my opponent a feel for what may go on in the real jury room if we are forced to try the case. Showing actual deliberations also helps neutralize the skepticism with which mock trial results are typically met by showing not only the results of the mock trial but the thinking that went into those results. In short, use all of the technological tools at your disposal to show your opponent what they are in for at trial if the case does not settle.
Using Technology at TrialThe ability to use technological tools during the early stages of a trial will depend on certain key pre-trial steps. If the key documents in the case are pre-admitted, they can be used as early as void dire. Establish a deadline for exchanging and objecting to trial graphics so that poster boards, PowerPoint slides and other tools can be used without objection. Deal with contentious evidentiary issues during a pretrial limine hearing. And obtain rulings on both sides’ deposition designations.
After testing all of the equipment and presentations, start the use of technology as soon as possible. Begin by taking advantage of Texas state court’s wide-open voir dire by using technology to help you tell the client's story. Use graphics, charts and PowerPoint presentations to give an overview of the key facts, documents and witnesses in the case. If there are just a few key documents that will be at issue during the trial, blow them up on poster boards and also have them incorporated in the PowerPoint presentation and use it during voir dire. Introduce the jury to the key witnesses in the case by showing their pictures during voir dire; if there are no still photos of the witness, use a still shot from a video deposition. For the plaintiff’s side of a personal injury or wrongful death case, use voir dire to introduce the clients through the use of photos, home movies and other visual aids.
As the trial progresses, keep using technological tools during direct and cross examination. Use PowerPoint, Summation or other document management software to zoom in on key contractual language, bubble out specific parts of a contract or highlight critical terms of an agreement. Rather than simply impeach a witness on cross examination by reading prior deposition testimony, have certain key video deposition snippets ready to play from PowerPoint, Trial Director or some other software. And when putting on witnesses by deposition, always use video.
Closing argument may be the most important time of all to use technology at trial. Depending on the length of trial, there may have been days or even weeks worth of testimony, documents and evidence that must be synthesized and summarized for the jury. Use PowerPoint slides to walk through key documents and facts in the case. If there are daily copies of the court reporter’s transcript, use the actual trial testimony during the closing. Also, use key video deposition clips that were played at trial. Most of all, tell client's story in a coherent, comprehensive, well-organized and persuasive manner. By effectively and efficiently using all of the technology at your disposal, the lawyer can hopefully rest a little easier while waiting for the jury to deliver its verdict.
The above tools are not only important, they’re crucial to your success as a trial lawyer in this century. For more information about technological tools that will optimize your success in the courtroom, visit sites such as
www.denniskennedy.com and
www.lawtechguru.com.
Eric Pearson eric@reyeslaw.com Angel Reyes angel@reyeslaw.com
www.ReyesLaw.com; Eric and Angel are both partners with Heygood, Orr, Reyes, Pearson & Bartolomei, a trial law firm specializing in complex securities, business and commercial law cases and catastrophic personal injury cases.
©2007
Angel Reyes
Read more articles by Angel Reyes at AngelReyesBlog.com.