Implementation of new technology is a risky proposition for lawyers, particularly trial tech. The jury trial is the true public face of the legal profession, even if the majority of lawyers will never participate in one. Your client’s perception of your competence may depend entirely on your skills in the courtroom.
You win or lose based on how you conduct yourself in front of the jury – after all, Robert Frost called a jury “12 people gathered to determine who has the better lawyer.” Successful use of technology can be a significant boost to your presentation. On the other hand, attempt to implement technology unsuccessfully, your bungling may overshadow your otherwise skillful performance, and your client could get punished as a result.
Here are 4 Tips to prevent Trial Tech from Ruining Your Case:
1) Do NOT use technology for the sake of using technology.
As tech-savvy as I claim to be, I admit (somewhat proudly) that I have never used anything more than a large notepad on a tripod in a closing argument. Why? Because one of my strengths is that I am a good storyteller. Flashy images and pictures of accident scenes, projected images of medical records, and video of depositions do not compliment my particular style in the cases I’ve tried.
However, when you’re in need of illustrating incredibly complex topics, such as presenting an IP dispute to a jury, then video animations may be your absolute best bet. Your use of technology in trial should compliment your style. Your presentation should never be dictated by the available trial tech.
Technology can be a great way to enhance your presentation, but never use it as a crutch. If you can’t identify the specific benefit you get from each piece of tech you use, it’s probably making your presentation worse.
2) If you’re unable to operate the technology yourself, don’t use it at trial.
Remember the first time you watched an attorney fumbling through an attempt to introduce some piece of evidence, only to give up trying the third time the judge sustained the other side’s objection? Remember watching the attorney’s credibility with the jury decline with each failed attempt? Remember how hard you studied the rules so you wouldn’t be that guy? (A recent story was reported of a litigator who was having so much trouble with his documents, that the judge ordered him to have his trial technician do it for him… to great embarrassment.)
Any particular reason why you wouldn’t work just as hard to master the trial tech you now use?
If you want to be able to use something at trial, you had better know how to use it yourself. You had better train yourself on how to operate the systems, on how to set up the displays. Why? Two reasons: 1) There WILL be times when, due to absence of a trial technician, you have to operate your trial tech yourself, and on the fly (or negotiate to use equipment if your primary tools fail; and 2) you should have a complete understanding of every element of your presentation. You wouldn’t stand in front of a jury and read a closing argument written by someone unfamiliar with the case. Why would you approach your trial tech any differently?
3) NEVER extemporize.
Trial lawyers love to believe we are good on our feet. I know I do. But I would never stand in front of a jury and give an unrehearsed closing argument. Nobody is actually better without preparation. Anyone who is good without prep is even better with it. Preparation allows you to establish contingencies, to make sure your information is accurate, and perhaps most importantly, allows you to structure your entire argument to be its most persuasive.
The same goes for the use of trial tech. I’m not just talking about having the right PowerPoint slides and enough extension cords. Check your transitions. Make CERTAIN to spellcheck everything. Is any of the video you have queued up set to a timer? Is that timer accurate? What about your voir dire information, is it updated to reflect the current case’s fact pattern? Is the jury pool information ready to go? Are you certain that all of the slides you have set up are supported by evidence that you believe will come into evidence?
As the attorney, your actions are under a microscope at trial – the judge’s, the jurors’, and your client’s. Why throw your hard work out the window because you decided to “just wing it” with your trial tech?
4) Avoid linear presentations.
While extemporizing is a no-no, so is being so scripted that you’re rigid and inflexible. Trials are unpredictable. Witnesses never say exactly what they told you, opposing counsel never does exactly what you expect, and judges never get every evidentiary call right (at least in your mind). When you prepare your trial tech, particularly your presentations for closing arguments, keep this in mind: your presentation will NEVER be exactly what you thought it would be before trial began.
What does all that really mean? Do not script your presentations so that each slide depends on the preceding slide in order to make your case. If your slides are interdependent, removing one slide could cause the proverbial house of cards to collapse.
Face it, there WILL be parts of your presentation that have to be modified or skipped based on what evidence is actually presented at trial. Moreover, you have to be able to roll with the punches once closing argument starts. I remember that while I was in law school, I believed it would take something extraordinary for me to object during closing argument. I was wrong. Your presentation may draw an objection, and the judge might agree.
By assembling a non-linear presentation (for some tips how to do so, click here), you are better able to handle the unpredictable elements of trial. Your presentation will be much easier to modify following close of evidence by removing or editing the slides that do not reflect the evidence. More importantly, you can avoid any significant delay and embarrassment should the judge sustain an objection by just moving on to the next slide. If your presentation is linear, you might end up needing to scrap every part of your presentation that depended on the slide the judge just ruled inadmissible.
Technology will not make you a better lawyer. When used poorly, it can highlight your case’s deficiencies, and can make even a seasoned, confident attorney look like an amateur. However, when done right, it can make your presentation more memorable, more interesting, and more persuasive. Follow these four rules, and while I cant promise it will turn you into Clarence Darrow, at least you’ll prevent your trial tech from ruining your case.