"Courtroom Gadgetry" and "The Perry Mason Moment"
I was reading a great article published by Legal Times back in March 2004 entitled "Beyond the Flip Chart - How To Use The Latest CourtroomTechnology to Wow a Judge or Jury", by Mark David Wegener and Andrew Lazerow. A particular paragraph early in the article struck me as prophetic as it related to a recent court incident I experienced at the Stanley Mosk Courthouse in downtown Los Angeles (the same courthouse used in the background of the TV series "Shark").
The article stated "The effective trial lawyer will continue to rely on the timeless tactics of credibility, emotional appeals, and logic. But in order to effectively persuade a jury, the trial lawyer must deliver the case themes and facts in a way that is consistent with how jurors process information in our high technology age.
Indeed, jurors have come to expect it. Even when the traditional flip chart or white board is large enough for a jury to actually read -in itself a rarity- the old techniques are simply not enough to keep a jury's (or a judge's) attention".
Well, this played right into our clients very own "Perry Mason moment" at the courthouse.
The opposing council was apparently a "neo luddite" - he knew enough about technology to check his Blackberry for email messages and, well, that was pretty much it. Our client, on the other hand, had recently "seen the light" and was embracing (and reveling) in the new-found "technological wizardry" we were offering.
This was a fairly simple presentation - we were impeaching a witness ... (yawn) again. The witness had been subjected to 17 hours of video deposition over several days (with her counsel sitting nearby, of course). Several rather innocuous looking certified documents had been introduced throughout the trial, many of them with notarized signatures. We had edited the 17 hours down to about 20 minutes of video with synchronized transcript. (Note: our software of choice is Visionary Litigation Software - easy to use (and learn) and it's FREE - more about this outstanding program in a future blog)
The software allowed us to put up a variety of documents and zoom in or highlight (or both) segments of the document. We can either do this "on the fly' in the courtroom or preplan the presentation before trial. The document can then be presented side-by-side with the video deposition with the transcript flowing, line by line, under the video image.
If you haven't seen this type presentation you haven't lived. But, I digress.
OK - so finally it's "showtime" - it has taken us about 15 minutes to set up our 8 foot screen, focus the projector, adjust the audio and fire up the computer. The witness takes the stand and all eyes are directed to the screen- the first video clip begins with the attorney asking the witness if she understands what "perjury" means, "Yes" she replies. "Does she know what telling the truth means?", "Yes" she replies. The video with the text remains on screen for a few moments.
The next video clip begins."Have you ever been gone by any other name or used any other name than "___"?, "No" is the reply from the screen. At that moment a variety of certified, notarized documents with a variety of her "known name" with "aka's" (also known as) appear on the screen beside her video image. The witness, sitting in front of the screen visibly cringes.
OBJECTION! Shouts the opposing counsel - and the presentation is halted. In one extremely painfully brief moment the attorney has just realized that he sat through the whole video deposition with his client and had allowed several documents into evidence and now the whole shebang had been laced neatly together - this was not good. This was bad..what to do?
We all waited for what seemed like a small eternity for him to gather his thoughts and explain what it was that was so objectionable about the video. The judge finally broke the silence and asked him to explain the objection. He replied, with a straight face I might add, "Your honor, this is just so much courtroom gadgetry - I mean - what are they showing us? A video with a bunch of documents? How can we follow this.. these pictures... what is this... stuff?
That was the best he could muster on short notice I guess.
The judge calmly replied: "This is no different than having the opposing council stand in front of a whiteboard reading your clients depositon while flipping through enlarged documents. This is cleaner and faster. I like it and I'll allow it. OVERRULED".
And so it went.....The Courtroom Gadegtry ran its course for the next 30 or so minutes with "OBJECTION" being injected here and there and "OVERRULED" echoing back. Like a lively ping-pong match. We won every time. (Actually, it was more like shooting fish in a barrel, but ping-pong is a better visual).
Afterwards a brief recess was called. A frazzeled attorney took his shaken client out of the courtroom to try to calm her down. Our client beamed at his client who beamed at us - it had been a series of multiple Perry Mason moments and we were all exhuasted, satisfied, and just wanted to roll over and go to sleep.
Another day of successful technical wizardry under our belts!
Here's my favorite example of counsel failing to understand what technology is good and bad for.
I used PowerPoint to restore an element to a photograph that had vanished by the passage of time. My client was the passenger in an automobile driven by his friend, who looked over his shoulder and veered off the road into a tree. Although there was a long line of trees beside the road, the California Department of Transportation (in its infinite wisdom) decided that the tree that the car hit should be cut down. So now I'm left with a picture of a row of trees and a collision that occurred in the middle of thin air. Not too helpful.
I painted in a tree to show where the tree was with the assistance of a witness who would testify, "Yep, that's where the tree was." Counsel lost all credibility with the judge when vociferously objecting to its use in my opening statement and at trial because I had doctored the photo. Absolutely not true. It was demonstrative only. The fact that it was bright green and stuck out like a sore thumb might have been objected to on 352, prejudice, but not because of what was depicted. In front of the jury, the judge commented, "Counsel, would you have the same objection is plaintiff's counsel went up to the board and drew a picture of the highway showing all the trees?" "Why no your honor," she replied. "Then you shouldn't have any problem with this either. Overruled."
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