Jurors and Technology in Trial: What Were Once Vices Are Now Habits

By Ted Brooks, originally published on ASTC (American Society of Trial Consultants)

Introduction

The recent legal defense of actor Robert Blake included heavy use of trial technology. While the prosecution relied upon “old-school” trial presentation techniques, including the use of posterboard blowups, printouts of documents and photographs, criminal defense attorney M. Gerald Schwartzbach chose other alternatives. For the first time ever, he used high-tech tools in his trial presentation.

Then, in the recent high-profile criminal trial of Dr. Hootan Roozrokh, Schwartzbach once again gave jurors the opportunity to “see” the evidence by visually presenting the case in much greater detail than the prosecution. Considering common clichés such as “Seeing is believing” and “A picture is worth a thousand words”, is it possible that the outcome of a trial may be influenced by the methods used to present the evidence?

Given these two cases tried by Schwartzbach, one might expect a Los Angeles jury to be accustomed to high-tech trial presentation, but the same may not be true in San Luis Obispo, a small Central California city located about an hour and a half north of Santa Barbara. Is your next trial venue accustomed to trial technology?

Consider the case of Shropshire v. City of Walnut Creek, CA, a precedent-setting case in which an Olympic-hopeful diver was paralyzed after an accident during training in which he landed on top of a synchronized swimmer who had been training in the same pool. It was the first time that the San Francisco plaintiff’s firm Abramson Smith Waldsmith had incorporated technology into their trial presentation. It resulted in an award for “Most Innovative Use of Technology In a Trial,” not to mention an impressive $27.5 million dollar verdict. While Walnut Creek is less than an hour from San Francisco, this was one of the first times technology had been used to this extent in that courtroom.

In each of these three case examples, the jury has spoken. Each contains a valuable lesson on how technology may have helped jurors reach their verdict.

1) Use Technology for Visual Impeachment: People v. Robert Blake

Schwartzbach inherited a complex case in the murder trial of Robert Blake , and quickly realized the difficulty in managing and presenting a large collection of exhibits, photographs and recordings. His jury consultant suggested bringing in a trial technology consultant.

At the first meeting, Schwartzbach saw what could be done with trial presentation software (e.g. TrialDirector) to assist in efficiently presenting evidence. He was convinced that a tool like TrialDirector would help keep the jury focused and engaged in what would likely be a lengthy three-month trial.

Defense attorneys often face the difficult task of trying to level the playing field when many of the prosecution’s witness are sworn law enforcement officers. This case was also part of the focus of a book released just prior to the trial which could potentially have a significant impact on improving the image of the LAPD. Schwartzbach needed to be prepared for any opportunity to impeach the prosecution’s witnesses – especially any officers involved in the investigation.

This photo exhibit, taken for publication in a book shows the three detectives assigned to the Blake murder case.

At one point during the trial, Detective Steve Eguchi (above right) was being questioned about whether or not he was near or had climbed up on the dumpster in which the murder weapon was later found (after being removed from the scene, dumped and spread out for inspection at a nearby landfill). He denied having been near or on the dumpster. Schwartzbach had the photograph of the dumpster scene displayed on the big screen for the jury.

After making sure that Eguchi was sticking to his story, he zoomed in on – guess who?

Detective Eguchi quickly confessed in front of the jury, stating, “Yes, I guess I was there.” It seems that neither the LAPD nor the DA’s office had realized that Eguchi was in the photo, nor did they have the capability to show it in court. Needless to say, there were smiles on several jurors’ faces at this point. Passing a small photo in front of jurors certainly would not have had the same impact as the big screen zoom. Robert Blake was found not guilty on all counts.

2) Use Technology To Make Comparisons and Teach Visual Concepts: People v. Dr. Hootan Roozrokh

Dr. Roozrokh was charged with hastening death by over-medicating a potential organ donor in order to harvest his organs. This was an extremely important case of international interest – the first of its kind, which could have a serious impact on the future of organ donor programs.

From the opening statement, the District Attorney chose to show jurors how many bottles of morphine were allegedly used to over-medicate the donor. She placed a number of actual morphine vials on top of the witness stand – something she later repeated with a witness on the stand. It was a very slow process opening each box, placing each vial upon the table, attempting to count (and recount) each one, and occasionally knocking one over. A single 10mg morphine vial at twenty feet appears very small, and it would certainly be difficult to have a good perspective of a large number of them at a distance.

Mr. Schwartzbach wanted the jury get a clearer picture of the concept. One expert witness had testified to having knowledge of cases where as many as 5000mg were used in end-of-life situations. It certainly wasn’t an option to acquire and trot in a large case of tiny bottles to spread around the courtroom. Importantly, the case included an issue regarding 200mg of morphine.

A demonstrative exhibit was created to depict 200mg of morphine:

(20 morphine bottles)

This was a bit more helpful, allowing the jurors to see all twenty of the bottles, and getting some idea of the quantity at issue. Similar demonstratives showed different quantities of the drug. While this was helpful and far more efficient than the several episodes of bringing out the bottles, there is a better way of showing the jury how much medication was used in this case, as compared to how much had been used in other cases. A little searching on the Internet provided a compelling idea for the closing argument, comparing 200mg to 5000mg:

Fortunately, for the sake of organ transplantation programs and end-of-life care standards, Dr. Hootan Roozrokh was found not guilty on all counts.

3) Use Technology To Enhance Witness Testimony: Shropshire v. City of Walnut Creek

Olympic hopeful Scott Shropshire was practicing his diving at the Heather Farm swimming pool in Walnut Creek, California, along with his team and coach. At the same time, at the other end of the pool, the Aquanuts synchronized swimming team was rehearsing their routine, under the supervision of their coaching staff.

The Aquanuts finished and dispersed about the pool, with one member swimming underneath the diving board. Shropshire could not see her and didn’t realize she was there. He dove, and as he was about to hit the water, she launched out from the side, directly in his path. Shropshire instantly became a quadriplegic.

With the Pool Supervisor on the witness stand, attorney Bill Smith of Abramson Smith Waldsmith questioned him as to why there were no lifeguards on duty at the time, why there were no dividers in place, and where the lifeguards would have been stationed had they been present. Mr. Smith prepared graphics showing various lifeguard zones, but the witness did not agree with the zones as laid out in the prepared demonstrative. As Smith continued questioning the witness, Smith put a diagram without the zones on the witness’s monitor. The witness indicated where a zone might be, and with TrialDirector and a few drawn circles, a new demonstrative had been created on-the-fly – at the witness’ direction. The demonstrative suddenly advanced to an admissible exhibit.

While this could have been done on a sheet of paper, it was extremely compelling when presented on the big screen. Plus, as a powerful trial exhibit, it would now make the trip into the jury room for deliberations.

Plaintiff Scott Shropshire prevailed, with the jury awarding a $27.5 million verdict.

In addition to these examples, consider the following tips for making your visual case at trial.

Make It a Habit

Indeed, there was a day when using all of this technology stuff was thought of as being a bit risky – that it might be perceived by jurors as too flashy or expensive. Assuming most jurors now have a TV and/or Internet access, this is no longer a valid argument. In fact, jurors often expect to be shown the evidence, rather than just hearing about it – regardless of the venue. Numerous post-trial jury surveys and interviews have shown that judges and jurors alike appreciate the efficiency and enhanced learning experience that technology can bring to the trial. So, how can you get started?

Do It Yourself

You can purchase TrialDirector or similar software for around $600. The learning curve is not too steep – at least to master the basics (which are the functions most-often used, even by experts). There are also certified trainers available nationally to assist you in getting up to speed quickly.

While you might consider using something you already have, such as PowerPoint, you will likely find yourself at a great disadvantage during trial. The primary strength of PowerPoint is also its weakness – it is designed to present information in a pre-determined linear format. Unfortunately, trials do not always (if ever) go as planned.

Get Full Support

For less money than even the smallest of bailouts, you can try your case in much the same fashion as you always have, while someone else worries about putting a database together, cutting deposition impeachment video clips and presenting all of the evidence to the witness and jury. If you’ve ever been on the serving side of a witness getting solidly impeached via their video deposition, you know that this can be a game-changing, credibility crushing “golden moment.”

When displaying documents, as you discuss Exhibit 12, page 9, paragraph 4 with the witness, the paragraph is zoomed in, and the words “smoking gun” are highlighted for the jury.

The only real differences in working with technology, especially when someone is assisting you, are the trial preparation and the manner in which the evidence is published to the jury.

If you are interested in getting additional information on visual support options, there are a number of highly-qualified ASTC members who would be happy to assist you (see http://www.astcweb.org/public/consultants/consultant_locator.cfm).

Conclusion

While any of the examples shown might be produced and presented in some fashion without using trial technology software such as TrialDirector, there is simply not an easier, more efficient method of doing so. In both the Blake and Shropshire matters, the lead attorneys had never incorporated technology into their trial presentation. Each felt that their case merited having every available tool to help present their case efficiently and effectively, and were willing to try something new. Now, they won’t attempt to represent a client without it.

Ted Brooks (tbrooks@litigationtech.com) has written and presented legal technology topics for numerous organizations, including California State Judiciary, U.C. Berkeley, NITA, ABOTA, LawNet, ADC, DRI, ILTA, SFTLA, CAOC, American Lawyer Conference, Paralegal SuperConference, plus Bar Associations, Government Agencies and law firms. He has provided trial technology consulting services in numerous civil and criminal trials. Learn more at http://www.litigationtech.com.

Citation for this article: The Jury Expert, 2009, 21(3), 77-84.

Best Projectors for Courtroom Trial Presentations

A very informative article was just published on 3LCD vs. DLP projectors, even if it has been published a few times already over the past few years (2001, 2003, 2004, 2005). While the basic technology of the two types of projector remains constant, there have been improvements and changes in the popularity of the two - thus, the updates on the original article. If you're so-inclined and enjoy a lengthy techie read, you will certainly come away with a better understanding of what's out there, how it works and how it is performing in the marketplace. If you'd prefer an executive summary from a trial presentation perspective, read this instead (you will save at least 15-20 billable minutes).

Texas Instruments' DLP technology has invaded the shelves of Costco and other major retailers - both brick and mortar and online. They are relatively inexpensive, so most anyone can justify the cost to own one. Even a solo law firm on a shoe-string budget can now afford to own, rather than rent a projector for trial presentations - or can they?

Without going into exhaustive detail on how the technology works (you can do that by clicking the links above), I will summarize that LCD (liquid crystal display) and DLP (digital light processing) projectors have two very different methods of painting a picture on a screen.

LCD has 3 light-emitting panels, each of which can be at full brightness, or dimmed for darker colors and shadows. The lumens rating is a true indicator of the power of the projector.

DLP, on the other hand, uses a chip to emit the constant white light source, a series of mirrors (one per pixel) and a rotating color wheel, through which the light passes, thus creating the display. The downside of this is that in order to display darker colors, less light (lumens) is displayed on the screen by tilting the mirrors away from the lens. In other words, a DLP projector lumens rating is based on full-on white, and other colors may be as low as 50% of the rated lumens value of the projector. There is also a "flickering" effect which may be visible at times, due to the rotation of the color wheel.

So, which is better for courtroom use? Well, it appears there is more light available from an LCD than a DLP, meaning a brighter picture. This is critical, as most courtrooms are well-lit, many with sunshine flooding the room during the day.

More importantly, a DLP projector produces a very nasty looking highlighting feature when used with TrialDirector or Sanction trial presentation software. It actually appears to be a yellowish-green color - but certainly not the yellow that you will see on your own monitor. In my opinion, DLP is not a good choice for trial presentation, regardless of the price difference.

The projector used in court should typically be a minimum 3000 lumens, LCD technology. There is little benefit to displaying documents and other evidence if it cannot be easily and clearly viewed by the jury. An optional short-throw lens will facilitate placement of the projector nearer to the screen, and out of the way of counsel, making it less likely for you to display documents on your forehead.

While these projectors will run upward of $2000, they can also be rented, and generally the rental costs are shared between parties. Plus, you won't have to worry about lamp-life, spare bulbs, set-up and taping of cables, etc.

www.litigationtech.com

May-Carmen v. Wal-Mart bicycle trial

I've been reviewing a few of our more significant cases, and think this is certainly worth sharing. Although I primarily use TrialDirector, if a firm has a preference for Sanction, I'll go with that. It worked great for me in this trial.

Wal-Mart successfully defended against powerful emotional appeal with technology and Sanction: May-Carmen v. Wal-Mart bicycle trial – Marin County, CA , By Colleen O'Donnell
Up against a case rife with emotional appeal and just one night to prepare for trial, consultant Ted Brooks, founder of Litigation Tech LLC, accepted the assignment from a new client to prepare and operate courtroom technology for Wal-Mart’s defense team in a nine-plaintiff product liability suit.
Brooks spent his one pre-trial evening loading digitized evidence into Sanction, including about 20 video depositions, as well as several audio tapes, and hundreds of photos and documents. He also made extensive use of Sanction’s Presentation Folders to help organize the data for each witness.
Plaintiffs’ counsel, in contrast, did not use any technology at all in trial. “If you’re going to swordfight, don’t bring a pocket-knife,” observes Brooks of the opposing team. “We were able to effectively present our case, while the plaintiff searched.”
The plaintiffs used dozens of mounted photos of children averaging between 8 and 12 years old, whose faces were roughed up in bicycle accidents, which they alleged were caused by defective bikes sold by Wal-Mart.
Nine sets of parents had filed suit against Wal-Mart, bike importer Dynacraft and its claims processor. The parents publicized their case with the graphic website: Wal-Mart Stop Hurting Our Kids (SHOK). Their attorney, Mark Webb claimed the accidents were caused by defective quick-release devices, which are intended to secure front wheels to the bike but allow riders to easily remove them for transport. He asked the Marin County jury for $8 million in general damages for the nine families from California and other states, plus punitive damages for the defendants' alleged malice.
"Every child in this case went over the handlebars, landed on his face, and suffered severe injuries," Webb told the 12-member jury. "How do you put a price on quality of life? How do you put a price on a childhood that's been lost?"
Wal-Mart and bicycle manufacturer Dynacraft had hired a high-profile law team of four attorneys, including seasoned Joe B. Harrison of Gardere Wynne Sewell in Dallas, who retained Brooks during the eight-week trial.
The defense put forth that each of the bikes had been tampered with, neglected or improperly handled. Key to the defense were deposition videos and audio tapes. During trial preparation, Brooks created video clips from 20 depositions, as well as audio clips from insurance adjuster audio tapes. Some of the clips were played as absentee witnesses.
“In every instance, our side showed there was negligence involved with the bikes, and either kids or parents not taking measures to ensure the bikes were in working order,”explains Brooks. “We had audio tape of plaintiffs’ interviews with the insurer and we played them to the jury. All audio tapes were digitized and played through Sanction. I used Sanction in dual-screen mode, allowing me to have full access to the database while documents and video were shown to the jury.”
Audio evidence included statements from the injured children such as, “My friend loosened my wheel and said ‘drive home.’” The child did that, then had an accident the next day on the bike.
“Opposing counsel counter-designated what they wanted to play – so, there were many times I had to create clips in the courtroom, just minutes before they were to be displayed in trial. Sanction's Clip Creator made this task very quick and simple,” adds Brooks. “Another valuable feature used was converting the clips to individual files, which could be burned to a CD and submitted to the Court for the record. This was done for each absentee witness.”
Harrison said in his closing argument that there was no scientific proof that Dynacraft quick-release levers are defective. He pointed out that the defendants had attached warning tags to the bikes and sold them with instruction manuals, including directions on how to safely operate the quick-release levers. Harrison criticized the plaintiffs' key expert, metallurgist Robert Neil Anderson, who testified that the Dynacraft bikes Wal-Mart sold were like "ticking time bombs."
He said that Anderson failed to conduct sufficient tests on the bikes to prove a defect and did not study how the accident rates of Dynacraft's bikes compared to others. Harrison also said that the plaintiff's expert did not test the clamping force of Dynacraft's quick-release or conduct tests to confirm his theory that the bikes' soft-suspension system had more vibrational stress than other bikes. He also criticized the plaintiffs for not presenting an accident-reconstruction expert to explain the cause of these accidents.
He concluded that Dynacraft's own expert witness, Gerald Bredding, did extensive tests to prove that the bikes were safe. “We digitized a videotape showing the front suspension on a smooth roller, and then on a roller with bumps welded on which shook the wheels violently, and showed this test to the jury,” says Brooks. “We also showed a test with heavy weights hanging from the wheels. They never came off. Another series of test data was shown to the jury, proving that the clamping force of the Quick Releases was as strong as, and in some cases, even stronger than high-end QR's.”
"Which is better, guesswork or science?" Harrison said to the jury. "Theories are a dime a dozen. Where's the proof? Where's the data?"
A key moment in the trial came as Wal-Mart's defense attorney Rob Phillips was giving his closing argument, and the last thing the jury saw were the words: "Where's the proof?", zoomed in from a graphic, filling seven feet of projection screen in the courtroom, relates Brooks. “As he spoke to the jury, he turned to look at the screen, then realized I had zoomed in on that section, and just smiled. It was very powerful.”
Without technology, plaintiffs relied on the emotional appeal of injured children and dramatic displays such as shaking the bike. “Plaintiffs shook a bike in trial to show that the wheel falls off – but the plaintiffs had removed the brakes for dramatic effect,” explains Brooks. “We shook the bike with the wheel properly tightened and it stayed on.”
Brooks is well-known in the litigation technology community for his work with another trial presentation product, but he really liked Sanction. “Clip Creator is very easy to use and helpful. I used it a lot,” he says. “I also liked the ability to pre-select where to place a given document or photo.”
“I’m not a fan of making trial presentations like a PowerPoint. That’s the advantage of trial presentation software like Sanction. You never know what’s going to happen in trial, and with trial software, you can respond to that. Otherwise you’re stuck in a linear format.” Brooks was moderately familiar with Sanction and had used it before in the past. “Because Sanction is rather well-designed, I was able to drop in and use it easily,” he says.
The jury found against the parents and their attorney. None of the parents won any damages although one set of parents reached a confidential settlement with Wal-Mart and Dynacraft. The decision was 11 to 1 and a retrial is pending.
“Our counsel was extremely happy and pleased with the performance of Sanction in trial. It led to more business for me,” Brooks adds happily. “A couple very highly-regarded attorneys on the team had never before used technology in trial. Thanks to Sanction, I’d be surprised if they ever try another major case without it. Opposing counsel was also impressed by Sanction.”

This article is reprinted with permission from the Tech Edge Insider Vol 2, Issue 7 Verdict Systems, LLC. © 2006
Ted Brooks is the president of Litigation-Tech (www.litigationtech.com)

Just posted a couple of popular articles

Well, just to help get the ball rolling for this new blog, I've posted two of my most popular articles. If you haven't read them yet, please do. I've had great feedback on both, and they have both been requested and used in CLE programs. While I'm thinking of it, if your firm is interested, I am available to present CLE programs on trial technology at no charge to San Francisco area firms, or for just travel expenses to other areas (trial schedule permitting). Please do keep me in mind, should you need some assistance with your trial presentation.
www.litigationtech.com