Presentations

November, 1999, p. 38-48
Digital Justice
By Rebecca Ganzel

So you think you've got a lot riding on a single presentation?Think about the courtroom, where
how well a lawyer presents a case can mean millions of dollars won or lost, or even a client's life
or death. But until recently, the legal system has been reluctant to adopt the persuasive presentation tools corporate America takes for granted. All that is changing -- fast. It was a dramatic moment.
 
The grieving widow had just testified about the last days of her husband, once a partner in a well-known threesome -- how, sick and penniless, he'd had to put off
bill collectors from his hospital bed, despite the fact that the slapstick movies for which he was famous were still raking in money. Up on the courtroom screen was a
letter the grandson of his controlling partner had written him in November 1992, with a few lines highlighted: "bad
financial times," for one, and "The recession is definitely affecting us." The amount of the enclosed check had been
$3,130.80.
 
One of the plaintiff's attorneys then pressed a computer key, and another document appeared on the 67-inch screen: a letter written by the same person on the
same date, only this time to his mother. "Yes, it's true," the jury read. "The total you have received for feature rights is a whopping $166,766.50!"
 
The meaning of this duplicity was inescapable. And, impressed by how well they presented the evidence, the jury for the Los Angeles Superior Court awarded the
plaintiffs $4.3 million in damages in that 1995 trial.
 
Which is how Larry and Curly Joe finally got back at Moe -- or, rather, how their heirs won the case against Moe's heirs.
 
Up to then, the Moe side of the Three Stooges, Moe Howard's children and grandchildren, had successfully claimed that they alone were the owners of the
intellectual-property rights generated by that long-running comedy team. It was Jean DeRita, the widow of Curly Joe DeRita (who replaced the original Curly, Moe's
brother), who testified against them. And it probably didn't hurt that the law team she and Larry Fine's grandchildren chose was headed by Bela G. Lugosi, son of the famous "Dracula" actor -- and a whiz at both intellectual-property law and courtroom technology.
 
"Blowing up the documents on the screen was a very dramatic way of imprinting them on the jury's mind," Lugosi told a reporter from Inc. magazine at the time, noting that Moe's side, by contrast, had presented
their evidence the old-fashioned way. "The effect was amazing. When the other side talked about their documents, the jury looked to the screen. But it was blank."
 
Lawyers learn Presentation 101
 
Four years after the Three Stooges' trial, presentation technology is no longer a novelty in the courtroom. Nowadays, it would be unheard-of for Moe's legal team to
leave that screen blank. Document cameras, PowerPoint slides, computer-generated animation, videoconferencing equipment, big-screen monitors and the like increasingly are among the weapons brought to bear on a case. Which means litigation attorneys, members of a profession that
prizes oral argument and elegant turns of phrase, have had to scramble to learn a whole new set of skills.
 
"A lot of lawyers haven't adopted technology in the courtroom, out of fear of technology -- and of the cost," says Arthur L. Smith, a member of the St. Louis law
firm of Husch & Eppenberger LLC. Which actually means more business for him. Although his legal specialty is
technology-based litigation -- cases involving software piracy or trademarkinfringement -- in recent years he's made a sideline of giving seminars on presentation skills to other lawyers. And even though his seminars' topics, to an experienced presenter, sound a bit like Presentation
101 (one from last May was subtitled "Tips and Techniques for Effective Oral Presentation"), many attorneys welcome such guidance in the strange new world of computer-driven presentation.
 
"I believe every lawyer who is involved in cases in the courthouse should learn something about presentation technology," Smith says. "It's not for every case, but
it could be used in a lot more cases than it is today."
 
The long road to getting wired
 
Our modern legal system is hundreds of years old, with roots in the medieval English courts, so maybe it's not
surprising that it resists technological change. If Abraham Lincoln were to walk into a typical American courtroom today, he probably would recognize most of the
procedures as traditions from his own lawyering days. Most courtrooms still ban cameras, for instance, relying instead on artists' sketches of witnesses and defendants to inform the public about what's going on. Attorneys and judges scribble notes on legal pads. Many cases turn on documentary evidence, perhaps hundreds of boxes of papers, which are still catalogued by harried legal
assistants and sometimes wheeled into courtrooms on dollies. When the jury needs to see a particular piece of evidence up close, that object or document usually must
be hauled out of its box and passed to jurors, who hand it to each other one by one. Important evidence, mounted on oak tagor foam core, might be set on an easel in
front of the jury.
 
And, above all, the courtroom is a place where oral argument reigns supreme, in that lawyers voice objections and make motions to the judge based less on what they see than on what they hear.
 
This is the scene, at least, in the majority of civil and criminal trials today -- criminal cases that lack a high-profile defendant, or a civil trial where, as one attorney explains, the judgment is expected to be under a million dollars (apparently a paltry amount nowadays). But raise the stakes a bit, and it's amazing how quickly a courtroom can get wired into the late 20th century.
 
The 1995 O.J. Simpson murder trial was the first glimpse many Americans had of state-of-the-art presentation technology in action. Of course the judge, Lance Ito,
famously allowed television cameras into his courtroom. Less well-known, but still very much a part of the show, was the computer-driven presentation system (developed by Trial Presentation Technologies, a company in Culver City, Calif.) that organized and displayed supporting documentary evidence on separate
computer screens for the judge, the jury, and the counsel for the prosecution and the defense.
 
Attorneys were among the millions of people glued to their television screens during the nine-month trial -- and they were quick to pick up on the technology they saw.
 
Attorney Deanne Siemer saysshe tells judges that
technology 'takes one-third out of the trial time. And
that's a huge factor for these courts, with their enormous
backlogs.'
 
Time-saving advantages
 
After the O.J. Simpson trial, "we [lawyers] went from presenting exhibits on easels -- foam-core-mounted blowups -- to Illustrator files and PowerPoint or Photoshop," says Peter Rothenberg, an attorney who's also director of graphics for STARRgraphics, a
division of a trial-consulting company in Venice, Calif. "Some judges [still] say they don't like all that high-tech stuff; they just don't feel comfortable with it." But that usually changes, Rothenberg says, once they see how computerizing the evidence speeds up a trial.
 
Says attorney Deanne Siemer, "When I give seminars for judges, I say that it [using presentation technology] takes one-third out of the trial time. Some of them disagree; they say, 'It takes half.' And that's a huge factor for these courts, with their enormous backlogs."
 
Siemer is managing director of Wilsie LLC, a law firm in Washington, D.C., and, like Arthur Smith, she has become known for teaching her colleagues to use technology
in the courtroom. Many of Siemer's seminars are given under the auspices of the National Institute for Trial Advocacy, a nonprofit organization housed at the
University of Notre Dame in South Bend, Ind. She is also working with DOAR Communications, a litigation-consulting firm in Rockville Centre, N.Y., to develop
ANIX, a courtroom-friendly plug-in for PowerPoint.
 
For Siemer, presentation technology is a natural extension of what already happens in court.
 
"Presentation skills are the same kinds of skills you use in handling exhibits," she says. "For a trial lawyer, this is not a stretch. You need to get comfortable with the equipment, but those techniques translate pretty well."
 
Better than video
 
Trial-presentation systems tend to have unwieldy names (DOAR Communications' is called the DOAR Digital Evidence Presentation System), but they're
streamlined in almost every other way. A typical setup includes not only powerful computers but document cameras connected to large direct-view monitors. It also acts like an enormous file cabinet for all kinds of evidence. Bulky trial notebooks, with their records of hundreds of exhibits, are replaced by laptop computers and clipboards
studded with bar codes; an attorney or technician can swipe a code with a wand to have the exhibit appear on screen. If, as is generally the case, the judge must
approve a graphic before it's shown to the jury, a switching system makes sure it appears on the judge's monitor first.
 
A few short years ago, videotape was as cutting-edge as a courtroom got. And video still gets attention in the courtroom when it's used live, as in videoconferencing.
For instance, instead of arraigning or trying a prisoner by transporting him to the courthouse, a situation that's inspired dozens of thrillers (think Wesley Snipes in
last year's movie "U.S. Marshals"), you can just put him on camera in his jail cell. "That's the big timesaver for court dockets, because you don't have to bring the criminal to the courtroom," Siemer says.
 
But, as a non-digital medium, videotape has a few disadvantages.
 
"Video depositions [where attorneys interview witnesses before the trial] are voluminous, with hours and hours of
testimony," Rothenberg says. If an attorney takes up the court's time to fast-forward through a videotape to find a particular part, "you'll make the judge and jury very
angry," he says. "And if you show something the jury shouldn't see, the judge will yell at you. Attorneys hate that." So lawyers versed in videotape admissibility generally bring dozens of tapes for every deposition,
each with a separately edited segment of the interview, in hopes that one of them will meet the judge's standards. Thus DVD, with its instantly searchable parameters,
is expected to become a favorite technology of lawyers in the near future.
 
An emphasis on emphasis
 
In addition to easy access, today's trial-presentation systems let lawyers and witnesses easily emphasize one part of an exhibit over another.
 
"You can see the whole page, or zoom in, or have a witness highlight a particular phrase or mark a photograph," Rothenberg says. This is much better than passing around multiple copies of a letter or contract, or even than showing a document on a video screen (whose resolution is generally too low for a jury to read it).
 
Computer-aided transcription is a hot field in court reporting as well. What court reporters type in -- the official record of the trial as a whole -- can, with the right software, be integrated into a larger presentation system, so attorneys and judges can put a virtual finger onto key
words and phrases moments, or weeks, after they're spoken.
 
What's more, high-speed T1 lines can mean that none of the physical evidence need be in the courtroom at all -- you can access images and documents over a secure
intranet.
 
"Instant random access of the right materials is the courtroom of the future," Rothenberg says.
 
Cutting-edge courtrooms
 
But you don't have to wait for the future -- so-called "smart courtrooms" are popping up in the here and now all over the United States. Some examples culled from recent newspaper and magazine reports:

* In May, the Ninth Judicial Circuit Court in Orlando, Fla., unveiled a $25 million renovation job for Courtroom
23, a facility packed with videoconferencing options -- and the ability to broadcast trials via a T1 line to the Internet. The court hired Applied Legal Technology of
Williamsburg, Va., to equip the courtroom, building on the Omega software system (VSI Enterprises Inc., Norcross, Ga..) that was already in place for judges to watch trials from their chambers. Taxpayers didn't foot the bill, by the way; the money came from a "discretionary fund" from court filings.

* In 1998, the judge and attorneys involved in two large civil lawsuits in Maricopa County Superior Court
(Phoenix) agreed to submit all documents connected with the cases on computer disk alone, with the law firms paying the cost of installing the equipment necessary to read the disks. "We think it might be [more of] a cost-savings than doing it all on paper," one of the attorneys involved told the Phoenix Business Journal.

* In December 1997, the State Supreme Court in Manhattan opened Courtroom 2000, which The New York Times described as a "high-tech courtroom
... used only for commercial cases" that was expected to cut court time in half. The state had spent $5,000 to
tear up the floors and lay cables. The $70,000 in equipment -- document camera, bar-code scanners, electronic highlighters -- was lent by DOAR
Communications as part of a two-year experiment; it wasn't decided who would pay for the equipment after the
two years was up.
 
It's no accident the main thrust of these newly wired courtrooms is on big-ticket cases, for none of this stuff comes cheap. Even setting aside the cost of the
equipment (which, if a courtroom doesn't have it already, can run $500 a day to rent, Smith says, plus another $500 a day in wages for a technician to run it),
creating computer-enhanced evidence is a pricey business.
 
Keeping jurors awake
 
"A good video will cost you $40,000 to $50,000, easy," says Terry O'Reilly, president of O'Reilly, Collins & Danko in Menlo Park, Calif. An attorney for 30 years, he's well-versed in high-stakes presenting as part of the so-called Inner Circle of Advocates, a national organization of 100 lawyers that requires its members to have argued 50 jury trials and won at least one seven-figure verdict -- "one that an appellate court hasn't taken away," O'Reilly says cheerfully. "It takes 20, 30 years to get in."
 
O'Reilly favors computerized animation for the product-liability and personal-injury cases he brings to court. He's currently representing three families in the 1996 TWA
800 lawsuit, which he expects to take "another year or two at least." Animation, he says, "allows you to show a complex system in very simple terms." He remembers
a past case involving an engine's cylinder that failed -- that is, exploded -- because of a weak casting.
 
"It was an issue of metallurgy, a subject that puts jurors to sleep," he says. The animated video kept them awake: In it, the working engine had red lines "showing where
the failure started and how it progressed," O'Reilly says. "The artist threw in flames and an explosion, which didn't hurt."
 
O'Reilly did his undergraduate work at a Los Angeles college that specialized in preparing students for careers in movies and broadcasting (his family had moved to
California from Ireland when he was 16). For him, mindful presentation is just what any good litigator does in the courtroom, which he calls "a very small theater-in-the-round, with an audience of 12." That's 13, if you count the judge.
 
As real as the evening news
 
"Most trial lawyers learn quickly that you're on stage all the time," he says. Everything, down to the smallest gesture or movement, is constantly being studied for clues. So, to O'Reilly's mind, everything he does in the courtroom he does for one purpose: to persuade the judge and jury.
 
"[You have to achieve] the same thing an actor has to achieve: a suspension of disbelief in the audience, and a conviction -- sometimes, of course, a literal conviction. A judge has to believe you're not pulling the wool over his eyes," he explains. "And most jurors are naturally skeptical in personal-injury cases," especially of large monetary rewards. "So you have to explain to them why the case is real and why you're not asking for anything
that isn't fair." Then you can start to convince them that the only reasonable choice is the one you're presenting.
 
"You want to get the jury thinking they are solely in command of the facts, and that the lawyers are just there to help them," O'Reilly says. "In fact, of course, we
control what they hear. But if they start to think they know the facts better than the judge and the lawyers, then you've got them." This has to be carefully finessed,
however: "If they sense a guiding hand behind it all, it doesn't work." He and several other sources agreed that
good presentation technology goes a long way toward persuading juries to believe what you say. The problem, in O'Reilly's opinion, is that most courtrooms don't have
a clue how to use it right.
 
"I've never seen a videotaped deposition used effectively in court," he says flatly. "Juries are used to the professional presentation of television -- not one camera focused on one person speaking in a conference room." Uncut, such depositions are deadly dull. "You have to have a skilled editor to turn [it] into something that can be used effectively -- and of course everyone's very nervous about the implications of a skilled editor." Other
kinds of judge-approved television, such as animation or re-enactment, are another matter.
 
"This generation of jurors is pre-conditioned to believe what they see on television," O'Reilly says. "If Tom Brokaw says, 'The moon is made of green cheese,
and I'm going there tomorrow,' they'll believe it unconditionally."
 
Rothenberg echoes him: "Juries love seeing stuff that looks like the evening news -- and they believe it because it looks like the evening news."
 
That kind of argument drives Eddie Ohlbaum crazy. He's a law professor at Temple University in Philadelphia, but he was a public defender for more than seven years,
and he came away, he says, with a strong respect for jurors' innate intelligence.
 
"Lawyers make a big mistake when they say, 'Stupid jurors, they believe it's TV,'" he says. "Jurors are incredibly smart as a collective group." He remembers one case he tried in which he went to great lengths to
hide the fact his client had been identified from a police mug-shot book (which would tell the jury he'd been arrested before). With the support of the district attorney, he carefully questioned the police detective in the witness stand in such a way the jury might think the
photograph was from a high school yearbook. The jury found his client not guilty -- but not because they were fooled. Afterwards, Ohlbaum says, he asked the jury how they reached their verdict: "The foreman looked at me and said, 'We knew that stuff [about the yearbook] was a crock. But we truly believed he was not guilty.'"
 
Trial advocacy stands up in court
 
At Temple's James E. Beasley School of Law, Ohlbaum was instrumental in setting up the program he now directs, which he says is the only graduate program in trial advocacy in the country. It confers the LL.M., or
master of laws, degree, and draws its 36 students, all practicing lawyers, from all over the Northeast. (The school also offers a version at the J.D., or doctor of laws,
level, which 90 percent of Beasley's 1,200 law students opt to take as an elective, Ohlbaum says.)
 
The program offers courses in jury-picking, speechmaking and cross-examination -- all arrows in the quiver of a good courtroom presenter, but sometimes considered just a little too hands-on by other law schools.
Partly because of its emphasis on presentation skills, "trial advocacy is often the bottom of the totem pole" in the legal world, Ohlbaum says. But he believes strong trial advocacy has the last laugh in court. Indeed, Beasley's national trial team, in which students compete to convince
juries in mock trials, is an undisputed success, having won the law-student equivalent of the Super Bowl championship, the National Trial Competition (sponsored
by the American College of Trial Lawyers in Irvine, Calif.), three times since 1995.
 
So far, Ohlbaum's 20-year-old trial-advocacy program puts more emphasis on old-fashioned oral persuasion ("asking questions and making speeches," as he says)
than on presentation technology. But Ohlbaum expects this to change. Already the LL.M. students get training in PowerPoint and creating computer-generated graphics,
and what he calls an on-campus "smart courtroom" is in the works.
 
"It's the difference between typing on a Royal typewriter and on a word processor," he says. With graphics, "you can re-create an automobile accident, a plane crash, a
robbery; you can put the human body up there on the screen. We've learned from childhood that seeing is believing. If used properly, it can be devastatingly
effective."
 
Deanne Siemer agrees. "Almost every jury interview after the case is over indicates that the stuff they remember best and rely on most is the stuff they saw," she says. "Putting an image on a slide sometimes
becomes a reference point that allows your
champions on the jury to make their case better."
 
Combining visuals oral argument
 
But attorneys are just kidding themselves if they think any graphic, even sloppily done, is better than none.
 
"People watch television and they're on the Internet, and, as a baseline, they're used to pretty good graphics," Siemer says. "People think [high quality] is the norm;
it's not a big deal. If you come along with something that looks clunky, they think you don't know what you're doing."
 
Jurors are nervous about grasping all the information being presented, she says, and they want to do it well. Oral argument, although important, needs strong visual
support to work: "The person who is a really good oralist with really good graphics is unbeatable."
 
And being a master of courtroom technology often translates, in jurors' eyes, to being an expert guide to the facts. Even jurors who are predisposed to trust the "little
guy" don't extend that trust to techno-klutzes. If you've got David vs. Goliath, and David is using flip charts
while Goliath is using animated graphics, courtroom research shows most juries will side with Goliath.
 
Still, it takes a new kind of skill to respond to a computer graphic with the legal expertise trained lawyers
instinctively bring to more traditional forms of courtroom argument.
 
"Technology makes things go by very fast," Siemer says. "Oral arguments go by fast too, but [lawyers] are practiced in how to object -- how to articulate on the fly
what's wrong with an oral argument." Although the same things that are objectionable in a speech (one based on
hearsay, for instance) are just as objectionable in an animation, attorneys aren't as used to responding to visual cues as to oral ones. "And it takes more work
and thought to get at a really good graphic
[in cross-examination] than it does to get at a really good oral argument," Siemer points out. "You have to take apart what it is that makes it persuasive, and show why
your points are better. In some cases, like a sophisticated animation, that takes a lot of brain power."
 
A winning combination
 
So while attorneys recognize the power that presentation technology has in today's courtroom, they're also a bit leery of it.
 
"Sometimes we have to say, 'Come on, just try an ELMO," says Patricia McEvoy of the lawyers who come to her trial-consulting firm for advice. "We certainly do not
recommend high tech for its own sake, but jurors' expectations are often more demanding than the attorney can handle."
 
McEvoy is vice-president of Zagnoli McEvoy Foley Ltd., a Chicago company in business for five years; she herself has been in the presentations business for 12 years.
Zagnoli does communications consulting and graphic design for courtroom presentations, as well as post-trial analysis to find out why jurors voted as they did. "My focus is on what needs to be done, education-wise --
how to make the attorney a better teacher," says McEvoy, herself a former elementary-school teacher. "Juries have really high expectations of what they're
going to see." Good litigators, she and others say, have to meet those expectations.
 
"When you deal with trial attorneys, the majority of them are oral people -- they give argument," says Kirby Dial, an information designer at McEvoy's firm. "They're brilliant at what they do. Technology can help that, or hurt that."
 
Using an overhead projector, for instance, could actually annoy the very people you're trying to impress, unless it's so bright the courtroom lights can stay up; judges and juries both like to watch witnesses' faces as evidence is presented. Likewise, attorneys could find themselves coming up short if they rely too much on underlings
to put a presentation together -- you'd better know how to think fast and fill in the dead silence as a program takes twice as long to load as you thought.
 
In the courtroom, "basic communication and people skills are still more important than technology," Dial says. "What technology does is make you look very polished, while giving you on-the-spot access to animation
or video" as alternatives to photocopied documents. Juries respond to an attorney who presents evidence well, no matter what form the evidence takes, he adds. "If a
presenter isn't up to speed with thetechnology, even a poster board, no one l ooks good."
 
Leveling the playing field
 
What about the fear of looking too slick -- of looking like you're so desperate to win, you're willing to spend thousands on a video? Doesn't happen, comes the chorus.
"Juries are the television generation -- they're pleased when evidence is presented in a visual way," says Arthur Smith. "Sure, we lawyers always worry about overkill,
about looking like the big deep pocket swallowing up the little guy. But when both sides have it, that levels the playing field. When one side announces its
intentions to go with technology, the other side usually figures out a way to go with it as well."
 
Indeed, as presentation technology improves and lawyers become more comfortable using it, the courtroom of tomorrow will continue to be a proving ground for the efficiency and efficacy of compelling visuals. Which
is why, today, Moe's attorneys would never have let Larry and Curly Joe get away with those two finger-pokes in the eye -- at the very least, they would have given the jury something to look at.
 
It doesn't stop at two-dimensional graphics, either. "The sky's the limit," Peter Rothenberg says, summarizing 20 years of ever-more-powerful machines that present
ever-more-compelling evidence. "We keep dreaming about the day when jurors will put on virtual-reality goggles." Let's just hope they're not watching "Three
Stooges" reruns through them.
 
Rebecca Ganzel is managing editor of
Presentations.
Originally published in the November 1999
issue of Presentations magazine.