Simmons Trial Practice

Telephone (503) 221-2000 – Civil Litigation

Business Litigation and Trial Presentation Software

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Most business litigation cases settle. But if your lawyer cannot go to trial, you get a bad settlement. In trial, clear and direct presentations win, while confusing and verbose presentations lose. Nevertheless, I see lawyers go into court with skimpy visual persuasion, trying to win by adding more talking.

The reality is, people are visual. “Blah, blah, blah” neither captivates the jury nor interests the judge. Compared to criminal trials, civil trials are boring. There is no blood. There is no violent conflict. There is a contract to interpret.

In the past, well-prepared trial lawyers relied on big enlargements of documents, charts and photographs, mounted on foam-core board. Big paper enlargements are still useful, because they can be left propped up and visible all the time.

But often when the trial starts, the plan changes.

“No plan of operations extends with certainty beyond the first encounter with the enemy’s main strength.” – Helmuth von Moltke, a Prussian strategist of the 19th century.

When opposing counsel departs from your expectations, it is hard to edit your big paper enlargements to respond to some brand new attack. Corrections to pre-printed exhibits can take a day or two that you may not have.

Trial is a competition. To win you use trial-specific technology to enlarge and display documents and photographs in the courtroom.

Exhibits must be shown to be effective. The efficient way to do this is with trial presentation software.

Business presentation software, e.g. PowerPoint, is for business meetings. Trials are much more adversarial than business meetings. In trial, your presentation must change, during the trial.

Recommendation: TrialSmart

The trial presentation software I have used lately is TrialSmart. It runs on Apple computers. It is so easy to use, that you do not have to use a technology assistant to run the program. Highly recommended.

For a recent arbitration, TrialSmart was a big time-saver. It had been a few months since the last time I needed to use TrialSmart, but I was able to quickly get the exhibits into the correct folder on the computer, re-learn how to put up each exhibit on the screen, and re-learn how to magnify just the relevant part of the document to a big, easy-to-read insert.

In trial you want to enlarge part of an image on the screen. Perhaps you will want to show the relevant words from a contract. The enlargement is done after first displaying the entire image. Some describe this as a “call-out”, while TrialSmart uses the expression “magnify”. Using TrialSmart, it is easy to use this powerful attention-getting technique. Here is an example of what the screen will show:

Part of Document Magnified

Part of Document Magnified

The letter (pictured above) contained the point, but showing the magnified quote emphasizes the three relevant words. Everyone remembers what you magnify and this is much better than using a yellow highlighter on a foam-core paper enlargement.

Note that the magnified part of the document is not displayed by itself. It is shown in front of the full page, still visible behind the magnified part.

Leaving the full image visible in the background has an important effect: it eliminates a potential adverse emotional reaction. It is comforting to see where you got the quote. Leaving the entire image context up as background is a major differentiator between using PowerPoint, and using trial presentation software such as TrialSmart. PowerPoint cannot do this, which is why you need trial software.

This 3-minute video from the developer shows how simple it is to use this powerful technique:
How to Magnify Exhibits and Documents in TrialSmart

Afraid of Apple?

The TrialSmart program runs on an Apple computer, typically a MacBook Pro or MacBook Air. If you want to use a Windows computer, the leading trial presentation software programs are Sanction and Trial Director. I own a copy of Sanction; I like Sanction. I prefer TrialSmart. TrialSmart is easy to use, easy to manage the exhibits on the notebook computer, and easy to show the exhibits on the screen to the fact finder. Also, Mac computers tend to be generally easier to use.

Business litigation presentation

Only a few business disputes go to trial, see the post with Judge’s comment about lack of trial experience of some lawyers.
But when a business case goes to trial, the visual presentation can tip the outcome. Endless talk about a contract is boring to the jury, boring to the judge, almost puts me to sleep and I am being paid to listen. When you follow your opponent’s bunch of talking by putting up an image, everyone perks up, out of desperation for visual stimulation.

Adverse possession litigation

Adverse possession cases are particularly in need of visual presentation. You can show the property boundaries, and you can show the proof of each element. I have won adverse possession trials, in part because I use images to prove my points. Once, I had a Judge announce, while looking at a photograph I put up, “I find that Mr. Simmons has proven adverse possession by clear and convincing evidence …”

Disclaimer: past victories are not a guarantee of future victory. Each case is different.

If you have a business litigation matter that may go to trial or arbitration,
call E. J. Simmons at 503-221-2000 to set up a consultation about your case.

Preparing for Trial – Direct Examination

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Once I heard a trial lawyer making a speech. He recalled a time when he had to testify in a civil action. This lawyer was experienced, intelligent and motivated to testify clearly, completely and truthfully. But while he was testifying on direct examination, answering questions asked by his own lawyer, he could not tell for sure what facts his own lawyer wanted. “I had no idea where we were going.”

If an attorney-witness cannot read the examining attorney’s mind, imagine the difficulty facing the average witness. More nervousness, less familiarity with the elements.

A colleague of mine once was trying a case. The adverse party was being examined by the adverse attorney. The adverse attorney became visibly exasperated with his own witness for failing to give the desired answers. Of course, the witness had a common shortcoming, that is, lack of mental telepathy.

Presenting a guessing game is the wrong way for a witness to testify. You may wish to consider the most effective way to prepare a witness for direct examination.

The best method I know of is to write out, for each witness, each question to ask, and each expected answer, in the order for trial testimony.

The expected answers come from prior interviews with the witness. Preparing the question and answer memorandum forces the trial attorney to organize. You will decide which facts to introduce from which witness and in what order.

Moreover, you should write into this question and answer memorandum the exhibits to be introduced, and at what point from what witness. In a State court case, with no pre-admission of exhibits, the foundational questions can be organized and written into the memorandum. Potential objections are eliminated.

Some attorneys believe that this is too much work. I hope that all my opponents think this.

A few days before trial, when meeting with a witness, you will use the question and answer memorandum to go over the testimony. Inevitably, you discover weak spots, confusion over what you are asking, and the need to improve. After revision, you go over it again.

No witness will testify completely in accordance with your expectation. But your presentation will be much smoother and complete. Your witness will be nervous, but much less so since every question on direct will be a question the witness has heard before.

Since examples are useful, another post will provide an excerpt from a memorandum as used in actual testimony, with names changed to preserve confidentiality. (We won the prayer for relief.)

Taking Video Depositions for Federal Cases

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In most depositions, the testimony is taken down by a stenographic court reporter. The court reporter then produces a transcript. Using the deposition transcript works well in support of a motion for summary judgment.

However, not all cases are resolved by summary judgment. For those cases not decided by motion, video depositions are better for settlement assessment and are much better for impeachment at trial.

Judges recognize why video depositions are better.

“… video depositions provide greater accuracy and trustworthiness than a stenographic deposition because the viewer can employ more of his senses in interpreting the information from the deposition.” Burlington City Board of Education v. U.S. Mineral Products Co., Inc., 115 F.R.D 188, 189 (Middle District of North Carolina 1987).

Independent videographers are available, but an independent videographer is not required. The attorney taking the deposition may also take the video. Juanita J. Ott v. The Stipe Law Firm, 169 F.R.D. 380 (Eastern District of Oklahoma 1996); Rice’s Toyota World, Inc. v. Southeast Toyota Distributors, 114 F.R.D. 647 (Middle District of North Carolina 1987).

In my office, we make a video of all depositions we take. The legal assistant runs the camcorder, while the court reporter takes down the traditional transcript. Later, we make digital video clips.

Federal Rules

F.R.Civ.P. 30(b)(2) allows video taping. The notice of deposition must state that video will be used to record the testimony. Note that F.R.Civ.P. 30(b)(4) requires certain statements on the record to be done at the beginning of each tape, and a statement to be made at the end of the tape. In my office, we use a checklist during the deposition to ensure that the F.R.Civ.P. requirements are met.

Hardware

The equipment is inexpensive. In a lawyer’s office, the camcorder’s audio quality is important. For about $250.00 you can buy a mini-DV camcorder, for example the Canon ZR900. For $20 you can buy a short tripod to sit the camcorder on the conference room table. With the camera near the witness, the built-in microphone will clearly record the witness testimony.

To make the video in the first place, the legal assistant just sets up the camcorder, points it at the witness, and presses the Record button. I do not recommend that you try to use separate microphones or special lighting. Trying too hard in this way increases the chances of an equipment problem. Relax, and let the camcorder do the work. Have plenty of tapes, label them, and keep feeding the tapes to the camcorder every hour as needed.

Software

After the deposition, the digital video from the camcorder is edited on a computer. A Firewire cable connects the camcorder to the computer. For a Windows computer, Sony Vegas or the free Windows Moviemaker is adequate to make clips. On a Mac, iMovie is more than adequate and easy to use.

At Trial

To introduce video deposition excerpts at trial, you must be prepared in advance. This is similar to using a written deposition transcript: you must know in advance which excerpts you will present. The practical procedure is to have, for each topic to introduce by video testimony, a clip. For example:

  • Clip 1: Two minute excerpt: Defendant’s president admits liability.
  • Clip 2: One minute excerpt: Defendant’s vice-president admits the amount of damages.

Then, all you have to do is play the clip at the appropriate time from the notebook computer using a projector or big screen TV. (Remember to provide computer speakers, so the jury can hear the witness.) Before you play the tape, you will let the Judge and adverse counsel know what you plan to introduce. The Judge will be given a transcript of what is on the clip. The other side may or may not object. If an objection is sustained, re-editing may be needed.

Showing a video clip has much more impact than reading from the transcript. You are not trying to compete with a movie studio in production quality. You only have to be better than your opponent’s boring reading from a transcript.

Conclusion

There are three purposes for depositions: discovery, settlement assessment and impeachment. For settlement assessment and impeachment, video recording of depositions is better. Currently available camcorders and software make video depositions an inexpensive and simple part of the discovery process.

If you want to try taking a video deposition using your staff, let my office know. We will send you a copy of the video deposition checklist, including what statements the court reporter must make while the tapes are recorded.

– E. J. Simmons