By: L. David Russell
Law360, New York (April 7, 2014, 12:18 PM ET)
In today’s world, where jurors are used to carrying the most sophisticated of graphic displays in their pockets, technological savvy can provide a real advantage when presenting exhibits and graphics at trial. An effective and seamless presentation is essential to a well-presented case. However, the wrong technology can needlessly complicate trial presentation. Both judges and jury have little patience for trial counsel’s frantic rifling through papers or clicking through endless links. And when faced with the myriad of tasks that accompany trial preparation, the last thing lawyers want to worry about is fumbling with trial exhibits once they get to the courtroom.
Luckily, there are a wide variety of options available to trial attorneys. This article evaluates the benefits and drawbacks of some current options for using technology to facilitate trial presentation, focusing on the following two popular programs: TrialDirector 6 for laptop and TrialDirector for iPad. Many courtrooms have been technologically updated and include such features as display monitors and hookups for laptops. Wi-Fi connections tend to be less common. It is always a good idea to speak with the clerk or, when possible, even visit the courtroom of your presiding judge in advance to assess the technological capabilities of your courtroom.
TrialDirector 6 is possibly the most well-known trial presentation program on the market. Frequently the choice of vendors offering trial presentation support, TrialDirector 6 offers a robust set of features that can handle the most complex trials. With TrialDirector 6, you can call up exhibits quickly and easily with the use of “hot key” shortcuts. You can also “call out” and highlight selected text, and make numerous other annotations on the fly.
Juxtaposing two exhibits, such as different drafts of a document, is simple and clear with side-by-side display options. TrialDirector 6 not only handles documents, but can also be used for showing and editing deposition video. And unlike the TrialDirector for iPad, files can be loaded directly to the laptop running TrialDirector 6 through any media storage device such as a USB flash drive. This gives TrialDirector 6 a significant advantage if, for instance, you need to upload an exhibit or demonstrative in the courtroom at the last minute, as many courtrooms do not provide Internet access.
Along with the sophistication of TrialDirector 6 come two related drawbacks. First, TrialDirector 6 is a fairly expensive product. The licensing fee for a single laptop is $695. In addition, there is an annual “maintenance” fee of $139 per machine. Second, TrialDirector 6 has a complicated user interface. Most users will not be able to take full advantage of its numerous and specialized features.
Indeed, trial teams using TrialDirector 6 often have a team member, typically a paralegal or a contracted vendor, who is tasked solely with the job of running TrialDirector during trial. Not only does this require the person running the software to coordinate with the attorney presenting the material, thus requiring additional preparation time, but the additional cost of any dedicated team member should be factored when calculating the total costs of using TrialDirector 6. Given these advantages and limitations, TrialDirector 6 is likely most appropriate in large cases with similarly sizeable budgets.
In contrast, TrialDirector for iPad is an inexpensive and easy-to-use "app." It is available for download for free on Apple’s “App Store.” Additionally, TrialDirector for iPad has an intuitive interface that will make casual iPad users comfortable. To begin, a user can upload exhibits to the program from Dropbox or iTunes. A $30 adapter from the Apple Store will allow you to plug the iPad directly into a court’s video input.
After plugging in, the program works like most iPad programs — “squeezing” your fingers on the screen will maximize or minimize text, swiping your finger will move to the next page of an exhibit, and clicking the “highlight” icon will allow you to use your finger as a highlighter and call out any important text. This program is so easy to use that trial counsel will likely be comfortable using this program while simultaneously examining witnesses.
Because there is no need to shift papers around, we have found that it is much easier to use while examining witnesses than that traditional courtroom standby, the Elmo. The TrialDirector for iPad App is also extremely reliable. In a recent federal jury trial, we used the app extensively and it never crashed. Regardless, because technology is sometimes unpredictable, the cautious trial lawyer will still keep a backup Elmo at the ready.
There are no significant drawbacks to using TrialDirector for iPad during trials where there are a smaller number of exhibits. The program is easy to use and the presentation is clear and crisp. We have found that juries are often impressed that an iPad is running the presentation, and will pay closer attention to how the presentation is being managed. However, for a large case using hundreds or thousands of exhibits, a program like TrialDirector 6 — which is housed on a PC — may allow the ability to better organize exhibits and edit deposition clips. Still, even in a large case, TrialDirector for iPad could be used for examinations of individuals witnesses — in lieu of an Elmo — especially if trial counsel wants to annotate the exhibits.
Nowadays, trial presentation software allows trial lawyers to present their cases in a crisp format that will capture the attention of the technologically savvy jury. While we have discussed two types of trial presentation software that we have used at trial, there are other popular options — including TrialPad and Sanction — that all have their devotees. All of these programs are lightyears ahead of what was available just a few years ago.
In the end, the most important thing is finding presentation software that the trial lawyer is comfortable and confident running. We look forward to technical innovations in the future, which we anticipate will continue to make trial lawyers’ jobs easier — and help juries ensure that justice is done.
—By L. David Russell and Jeffrey Atterberry, former associates at Jenner & Block LLP
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