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Lawyers Journal

The electronic trial: One picture is worth a thousand words

After bringing my computer and video equipment into a courtroom, I've often held the door open for my client's opposing counsel as they enter the courtroom with boxes and boxes of paper documents and notebooks for the jury. One difference between my medium and theirs is that the computer doesn't get any heavier the more information is put into it.

Another difference: Multimedia presentations lighten the information load and the trial process. Through imagery, you can take the jury where you want it to go without leaving the room; you can play a video of an expert witness without having to call him or her in to court, saving significant dollars in travel and witness fees; you can educate those in the courtroom on a complex medical or mechanical matter where the eye cannot go, and you can show a witness during the giving of a deposition, conveying key things about the witness' demeanor and bearing, giving a picture far more complete than a transcript alone.

Multimedia presentations have come into their own since the early 1990s. Today's video-editing technology, which can be used by even the most technologically-challenged, allows the litigator to search transcripts, highlight specific testimony and create video clips that can be played to dramatic effect.

Videotaped Depositions

Videotaped testimony is not only a time- and money-saver, it can also be a very useful tool even when a witness will appear live before the jury. Modern presentation tools make the editing and playing of video clips almost instantaneous. This can be a powerful tool at trial when a witness' answer on the stand differs from what was said earlier under oath during discovery.

But video is only as powerful as good planning can make it. A poor video distracts the audience from the message. Planning for an audiovisual deposition requires thought to surroundings and the demeanor of the witness. It must be conducted in a distraction-free, well-lighted and quiet environment, with enough space to accommodate the witness, a court reporter and counsel, and a videographer with equipment. The witness should dress in a comfortable but professional manner, as they would for an actual court appearance. The same applies to cell phones and PDA devices, which should be turned off. Witnesses should act naturally but avoid exaggerated motions, and should allow time for an objection to be lodged before answering a question.

Video Formats

Video formats have expanded far beyond the VHS tape. You have your pick of CD-ROM, TV-DVD, Digital Video Transcript (DVT) disks, and even streaming over a secure Internet connection.

The Digital Video Transcript is the most effective format for trial use in an environment in which a judge may not rule on evidence until the day it needs to be presented. In DVT, the reporter's official transcript is synchronized to the video file, allowing the search for segments to view without having to fast forward or rewind a tape as the litigator finds the correct spot in the paper record. Simply highlight the first line of testimony you wish to view and double click on the highlight. The video will automatically be cued up to that portion of the proceedings. Most DVT disks contain software that allows keyword and index searches and basic video editing functions, creating a clip that can be viewed on the spot, can be exported into trial presentation or multi-media presentation software, saved to a hard drive or portable media for later viewing, or can be encoded into a file small enough to be e-mailed to a client or colleague for viewing.

Video productions need not be costly and can be effective tools in your arsenal.

Experience Counts

That having been said, a professional videographer, particularly someone who has been certified as a Legal Video Specialist (CLVS) by the National Court Reporters Association (NCRA), can bring a wealth of experience and knowledge to your projects, with their technical expertise and knowledge of how to rig cameras to show jurors what needs to be seen. A scrap of paper can be turned into a chalkboard without the need of posterboards. Why single out 10 to 15 documents to make into boards, when electronic trial presentation technology can make every document in your case 20 times larger?

Computerized technology does not guarantee a successful trial outcome, but it makes sense to use all available tools to your advantage. If you don't, your opponent might.

On Location

Massachusetts courts present various presentation capabilities which must be kept in mind when designing your evidence presentation floor plan. Some buildings, such as the U.S. District Court in Boston, have courtrooms equipped with state-of-the-art presentation tools, including individual computer monitors in the jury box, the bench and on counsel tables; telestrator touch-screen monitors on the witness stand and counsel podium; and audio-visual playback devices built in to the room.

In other venues, particularly at the state Superior Court level, which have nothing except electrical outlets (and often, few of them), display equipment must be brought in. The layout of the courtroom also plays a role. Counsel may find itself limited in space options in order to give jurors an unobstructed view of the visual evidence. The most effective technology in these cases is small video/computer projectors and large, portable movie screens, which can be used in confined spaces and focus the jurors' attention all in one place. Counsel can often control where the members of the panel look, as well as the amount of time they spend studying the evidence.

Positioning is important. We recommend placing the display screen in the center of two other key elements in the room - the witness stand and the attorney's podium. The ease of viewing for the jury should be paramount in planning the equipment layout.

Final Thoughts

Video technology can help you bring to life your thoughts and words and create a vivid image in the minds of your jurors. By capturing their attention and teaching them everything they need to make an informed, just decision, you will have done your job to the best of your ability and find success in your endeavors.

Ian A. McWilliams, CLVS is a videographer, trial presentation technician and consultant based in Brockton. He does primarily civil work and has worked in venues throughout New England. Please visit his webpage, www.newenglandtrialservices.com.

©2014 Massachusetts Bar Association