The Effective Use of Trial Technology in Complex Business Litigation

by Peter J. Bezek  and Robert Curtis

Studies show that when people merely hear information, they retain only about 10 percent of what they hear, while people exposed to a combination of oral information with visual aids retain approximately 85 percent of that information. [1]. With this in mind, it becomes clear that a trial lawyer who spends most of his courtroom time simply talking about his case will be far less effective than a lawyer who uses an effective combination of the aural and the visual when presenting a case. Trial technology can be used throughout a trial to enhance the jury's sensory experience and thus enhance the impact and presentation of the opening statement, the examination of witnesses, the presentation of evidence, and the closing statement.

For example, a visually-laden opening statement utilizing courtroom technology could result in a victory for the trial attorney's client prior to the admission of a single piece of evidence. During the presentation of evidence, trial technology allows trial lawyers to better capture jurors' attention, elevate juror comprehension of key documents and concepts, and increase the likelihood that the information conveyed will be retained and recalled by jurors during deliberations. Finally, trial technology can be utilized in the closing argument to allow the trial lawyer to visually tie together all of the evidence in a powerful and easily understandable way.

What is Trial Technology?

Ideally, trial technology should allow a lawyer to walk into court with a case's entire file stored on a laptop and a CD or two, including deposition transcripts, trial exhibits and opening and closing statement presentations.

Trial technology comes in various shapes, forms and price ranges. At a bare minimum, the lawyer will need a quality laptop computer and a computer projector. Software can range widely in price and usefulness; however, two affordable and widely-available software programs, Summation and PowerPoint, will usually suffice.

Summation is a transcript and database management program that allows for instant retrieval and presentation of scanned exhibits and deposition transcripts. PowerPoint is a presentation software that allows the lawyer to highlight or zoom in on portions of exhibits while they are on the screen, without actually altering the exhibit itself. PowerPoint also allows for use of exhibits in opening and closing statement presentations.

The Effective Use of Trial Technology in the Opening Statement

The purpose of an opening statement is to provide the jury with a preview of what is to come. In accordance with the rules of evidence, it provides the experienced plaintiff's lawyer with possibly the most effective way to win the case: direct communication with the jury. This is true for a number of reasons. An opening statement allows the lawyer to explain his case to the jury in his own words, place the jurors in his client's shoes, and allow the jurors to see the case from his client's perspective [2].

Perhaps the most important function of an effective opening statement by the plaintiff's attorney is the lasting impact it has on the jury. This is based on a principle called primacy, which posits that a jury will remember best those things that they hear first.[3]. Research has shown that the "impact of the opening statement consistently reveals that as many as 80 to 90 percent of all jurors have reached their ultimate verdict during or immediately after opening statements. Everything in the trial that follows will be selectively perceived to reinforce decisions which have already been made."[4].Therefore, the principle of primacy holds critical importance for the opening statement at trial because it is the lawyers' first opportunity to tell the jury about their case. [5].

The Effective Use of Trial Technology in the Case-in-Chief

The use of trial technology during the case-in-chief portion of trial has many benefits. Among the benefits of a technological presentation of the case-in chief are to better maintain jurors' attention, elevate juror comprehension of key documents and concepts, and increase the likelihood that the information conveyed will be retained and recalled by jurors during deliberations.

For example, by using Summation during witness examination a lawyer can instantly confront a slippery witness or expert with their deposition testimony in big bold print on an overhead projector, where the jurors can read the witness' previous testimony. This is certainly more powerful than the cumbersome "didn't you tell me in your deposition that . . . " while pounding on the deposition transcript. Trial technology provides an instant impact on witness credibility when used properly in these situations.

In addition, instead of jurors having to wait until deliberations to view an exhibit, Summation and PowerPoint allow for display of the exhibit to the witness being questioned and the jury simultaneously. This use of trial technology allows the jurors to follow the supporting documents while the lawyer presents the case. The jury will come to expect the next exhibit or visual to clue them in on where the attorney is taking them [7].

The Effective Use of Trial Technology in the Closing Argument

Trial technology can be utilized in the closing argument to allow the effective trial lawyer to visually bring various strands of evidence together and tie them in to the theme of the case. Jurors, like society at large, are used to receiving information via their television sets. Therefore, the effective trial lawyer will create a closing presentation fashioned like a news story, summarizing the evidence in a way the remains in the jury's mind during deliberations.

The closing argument is another important place to make a significant impact on the jury. Eighty-eight percent of jurors polled said they thought closing was important [8]. Much like the principle of primacy discussed previously, closing arguments are extremely important due to a principle called recency. The principle of recency says humans remember best what they heard or saw last. Attorneys use their closing arguments to argue their side of the facts and ask the jury to rule in their client's favor. Therefore, a powerful visually-enhanced closing statement can leave the jury with a lasting visual impression of the lawyer's case and his arguments.

Conclusion

_________
Peter J. Bezek is managing partner of Foley & Bezek LLP a Santa Barbara law firm specializing in commercial business litigation including Internet and patent/trademark litigation, lender liability, business competition and lost profit cases. Robert A. Curtis is a litigation associate.

[1]See G. Jacquish & J. Ware, Adopting an Educator Habit of Mind: Modifying What It Means to "Think Like a Lawyer," 45 Stan L. Rev 1713, 1721 (1993).
[2] See P. Zwier & T. Galligan, Technology and Opening Statements: A Bridge to the Virtual Trial of the Twenty-First Century?, 67 Tenn. L. Rev. 523, 524-25 (2000).
[3]Steven Lubet, Modern Trial Advocacy: Analysis and Practice (2d ed. 1997) Ch. 11, § III.
[4]Donald E. Vinson, Jury Trials: The Psycology of Winning Strategy 171-72 (1986).
[5]Timothy Perrin, From O.J. to McVeigh: The Use of Argument in the Opening Statement, 48 Emory L.J. 107, 125 (1999).
[6]See G. Jacquish & J. Ware, supra note 1.
[7] R. Kraemer & N. Jayne, Courtroom Technology: Lessons to Be Learned from Hollywood, Advocate (May 2000).
[8] John B. Mitchell, Why Should the Prosecutor Get the Last Word?, 27 Am. J. Crim. L. 139 (2000).