For still images, the process is similar, but easier, since the editing process is far less complicated.

The most difficult part of the entire process is selecting which images should be loaded into the computer. For us, this is the same process as selecting the images which are expected to be trial exhibits. We load all photographs and similar images which we expect to use at trial. Key quotes from depositions are selected, and each is input into the computer, ready to be displayed at a moment's notice. Even though documents generally will be presented with the Elmo, key quotes from key documents are cut and pasted into Trial Director where they can be used with greater impact during opening statement, final argument or cross-examination.

For a VCR, the projector will accept any generally used model of VCR. For many years, we have used S-VHS format for most videotaping done by the office, because it provides better quality than regular VCR when copying and editing tapes. However, if S-VHS is used, it is necessary to use a VCR that will play both regular and S-VHS format. If the defendants show up wanting to use the VCR with a regular VHS tape, it is usually best for the VCR to work for them also.

We use an ELMO EV-400AF Visual Presenter. This particular unit provides superior video quality, and uses one of the best video capture chips available at the time it was made a few years ago. When purchasing an Elmo, it is very important to get the highest possible video resolution to facilitate the display of documents.

Our experience has been that the most efficient method of presenting documents at trial is to simply put them under the Elmo and project them onto the large projector screen. We try to be sure that the positioning of the screen, in terms of its distance from the jury box, will allow anyone with normal eyesight to easily read typed text in the documents when the Elmo is zoomed in so that a line of type completely fills the width of the screen. When first presenting a document, it is quick and easy to zoom into the title and date, the name and signature of the author, and then to fix the Elmo on the critical text. If desired, one can mark and highlight on the document while it is under the Elmo, where the jury can see everything that happens.

Using the Elmo in this way requires that the attorney become comfortable with zooming and focusing the Elmo. It has two zoom buttons ö in and out, and two focus buttons, which are easy to use. Nevertheless, it is absolutely necessary that the attorney practice the small amount necessary to become comfortable with the use of the technology.

The alternative method for presenting documents is to use Trial Director. Before the availability of high resolution cameras and projectors, it was one of the best available methods. But, that is no longer true in my opinion.

When using Trial Director, one available view of each document page is the full page view. On this view, while the jury can see the entire page, they are almost certainly too far from the screen to read anything on the page. For the jury to read a section, Trial Director has several zooming views which blow up sections of the page. In my opinion, however, they are far more cumbersome to use live in front of the jury than is the Elmo, and no more effective. While specific blowup views can be preprogrammed, this requires a great deal of work, and limits flexibility. On balance, I believe that using the Elmo allows the most effective presentation, with the least pretrial preparation, while allowing the attorney to retain the maximum flexibility.

The Elmo can also be used to present any form of printed material, from photographs to pages from authoritative treatises. Simply place the material under the Elmo, zoom or focus if necessary, and the presentation is made.

Later model Elmos have lights which can either shine from above on the material, or shine up from the base to back light transparent items such as X-rays. When the base lights are turned on, X-rays can be shown on the Elmo more effectively than on a view box, because of the ability to zoom in on the critical portions of the X-ray. Small CAT scan images on X-ray film can be blown up to 6'x6' through the projector.

The Elmo can also be valuable to show the jury small three dimensional objects. Threaded bolts, pieces of machinery and all kinds of objects can be seen more readily by the jury if projected onto the big screen. An expert's explanation can be more readily understood when small objects which are the subject of the discussion can be pointed to, turned and moved while being projected on the screen.

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What to Do with the Technology?

Remembering that technology is not the end, but only a means to an end, consider what to do with the technology; how to make it most effectively assist in reaching the goal of a favorable verdict.

Key Quotes: Perhaps the single most effective use of the big screen is the display of key quotes.

During our pre-trial preparation, and during the trial itself, we are seeking short, pithy quotes from adverse witnesses, adverse experts or corporate representatives, which make key points of our case. As we take and index depositions prior to trial, some of the questions and answers will be isolated and indexed as "key quotes" or "major admissions" in our indexing system. In a case in which the defect was GM's failure to include head restraints in CK trucks, even as they included them in those sold to Saudi Arabia, one of our key quotes was from GM's corporate representative, Mr. El-Sabeh:

Q. Okay. Mr. El-Sabeh, do you agree as a matter of general principle that people who purchase CK trucks in the United States ought to get the same level of safety as people who purchase CK trucks in Saudi Arabia?

A. Yes

By the time the trial commences, the key quotes have been selected, indexed and placed in notebooks, with a bar code beside each quote. With the push of a single button on the bar code reader, the quote can be transferred to the big screen before the jury.

As we use the key quotes, we copy the text into a still image, if possible superimposed over a photograph taken from the video of the witness. We use the text of the quote to project on the big screen, a text which can remain immobile and visible before the jury while it is discussed, and considered, and taken into full account, until time to be replaced by another.

We use key quotes during direct and cross-examination, opening statement and final argument. During each phase of the trial, they reside in the computer, to be called forth with the push of the bar code reader button.

Video: Another powerful use of the projected large-screen image, is to use video either as direct, real evidence, or as an explanation of something which is better shown in motion than merely explained in words.

In crashworthiness cases, an obvious use of video is to present crash test videos which are important to the case. The crash test films are usually far too long to be played in their entirety for the jury. Our practice is that crash test films are edited, to select and present the portions relevant to the trial at hand in short clips, and the resulting edit is both output to videotape and loaded into Trial Director.

Animations or video reconstructions of collision events can be powerful means of demonstrating what happened for the jury.

Additionally, animation can be used to show the jury the workings of mechanical parts which may be too large, too small or otherwise inconvenient to show the jury.

Slides / Charts: During opening statement or final argument, slides or charts which visually summarize portions of the opening statement or argument, can be effective in visually driving home points.

Document Excerpts: Although we prefer to present documents as a whole through the Elmo, select or dramatic portions of documents can be loaded into Trial Director as still images and displayed quickly and effectively through the computer and projector.

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Low Tech is Not Dead

Do not become a captive to high tech. Low tech still lives, and has its place in trial.

Posters / blow-ups can be very effective if used correctly. The most important thing about posters is that they stand out visibly all the time, not just when being used. The pictures on the big screen may be larger, but one goes away when the next appears. The blowup not being used remains visible to the jury if properly placed.

Remember that, to be effective, posters must be BIG. The writing should be easily visible to every member of the jury from the place where the poster will be located. In our experience, people who make posters believe they should be 2'x3', while they should actually be at least 3'x4', and perhaps larger depending on their content.

Resist the urge to make the poster fancy. Make it look low tech ÷ simple, but effective at carrying the message.

Although posters look low tech, they are not really. High tech can be used to make posters. Computer literate artists and illustrators, using readily available programs and standard workstations, can create posters and print out small versions for proofing by counsel in the office prior to trial. After the decision is made on what posters to use, the computer file can be taken to a service bureau which will make the actual poster in a few hours.

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Practical Considerations

In addition to the technicalities, there are a number of legal and practical considerations for use of the technology at trial.

The plaintiff's lawyer who is providing and using the technology should avoid, as much as possible, creating an image of himself (and his client) as high-dollar techno-wizards. I think this should be approached in two ways:

First, by motion in limine, prevent the defense from informing the jury that it is your equipment. Make it available to the defense before the trial starts, outside the presence of the jury, and require that all parties refer to the court as the court's equipment. This will allow the court to be high-tech, which the judge will appreciate, and you will simply be up to date with the court's equipment. The defense, at some time, will "inadvertently" refer to the equipment as yours, or ask your help in operating it, but, by that time, it will be too late, and their remarks may simply increase your image as knowledgeable and well prepared.

Second, make every effort to minimize the obtrusiveness of the technology in terms of its physical appearance in the courtroom.

The big screen (which is, of course, very obvious), does not look particularly high tech. It is simply a movie screen like many of us saw in our school rooms many years ago. The projector, computer and VCR can all be located on an audio-video cart, with their connecting wires carefully packaged and concealed, which makes a physically unobtrusive package. It will not be necessary to use either a computer monitor or keyboard in the presence of the jury. If the computer technician needs to have the keyboard available, either hide it or disconnect while the jury is in the room.

The Elmo usually cannot be on the same cart, because it would place the Elmo and the lawyer using it, in front of the screen with the projector. You will have to find another location for the Elmo, and will have to run a connection from it to the projector.

The AV cart can include a multiple power outlet so that all of the equipment on the cart can be plugged into the cart, and only one power cord from the cart run to another outlet. This, the connection from the Elmo, and any other cords or wires, must be run as neatly and unobtrusively as possible, and taped securely down with duct tape, so as not to become a tripping hazard and to maintain a reasonable appearance.

At least several days before the trial, it is advisable to approach the court, perhaps through the bailiff who usually controls the physical contents of the courtroom, for permission to set up the A/V equipment. In my experience, most courts are very receptive and often helpful in making suggestions for the location of the various pieces. Prior to the beginning of the trial, decide on the location of each item of equipment. The most important is the screen, which must be easily visible to the jury, and everyone else. The location of the screen and the projector move together. If possible, avoid placing the projector directly next to the jury box; most projectors make a low noise from a fan which is blowing a small amount of hot air, neither of which do you want to have as a distraction to the jurors. If placement next to the jury box is unavoidable, do whatever is possible to minimize the undesirable effects.

At the beginning of each day, test all of the equipment to be sure it is working correctly. Never undertake to use any equipment in the courtroom which has not been tested, that day, in its fully set up configuration.

Finally, be prepared, both technically and emotionally, for what can and will go wrong.

When something goes wrong, the lawyer must immediately make a joke of it and move forward. Do not stop the progress of the trial to fix equipment, or to figure out why it is not working. Leave that for the next recess. Rather, the lawyer must be able to move forward with the presentation of evidence without getting caught up in the technical failure.

In our system, many things can be displayed two ways ö either via the computer or the Elmo; or the computer or the VCR. Often, one can simply change to the other method of display. The main exception to this is the projector ö if it should fail, you cannot project anything. Fortunately, we have not had a failure of the projector, although we have had to learn to remember to turn it on in the morning ö a good reason to run a test.

But if the system fails entirely, go ahead with the evidence without the high tech stuff. The judge and the jury will appreciate your unflappable demeanor, and the pace of the trial will not suffer. Make a joke at your own expense, move on, and fix it at the next recess.

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Appendix I

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STRENGTH. INTEGRITY. EXPERTISE.

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