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An effective way The Daily Show's Jon Stewart unravels politicians is to play a clip of a politician adamantly declaring his "life-long, unwavering, and impenetrable belief" that the world is round, then playing five clips of the same politico declaring his "life-long, unwavering, and impenetrable belief" that we live on an intergalactic pancake.
With advances in court presentation technology, trial attorneys have access to a similar kind of real-time, high-impact comparison of video, audio, images and text.
The 20th Century way of presenting volumes of evidence requires technology like cardboard boxes, file folders and hand trucks. Copies of critical documents are passed around the courtroom. Yellow highlighters are used to focus the jury on a specific paragraph on page 6 of a 20-page memo-yet still they meander over to the photo on page 10 and the cool anatomical drawing on page 15. If only you could control their eyeballs.
Video evidence is even more difficult, requiring the fast-forward and rewind talents of a Hollywood film editor. This is great if you can get the video to play and, oh, did you want sound with that video? Did anyone bring an audio cable?
It is no wonder attorneys search far and wide for The Holy Grail of Evidence -The Smoking Gun. That million-times-copied one-paragraph memo from the defendant's CEO with the sentence: "We knew Product XXX was going to kill people, but given the massive profit potential we not only moved forward, we tripled production capacity! I used my bonus to buy my own satellite."
As a practical matter, if a trial team amassed a warehouse of evidence, they simply wouldn't plan on having immediate access to every scrap of paper, every picture, or every video in that warehouse during a trial or arbitration hearing. Also, we all know that a smoking gun may exist, but there may be some assembly required. The strongest evidence may need to be pulled together from multiple sources and in multiple formats, not all of which play well together.
Presentation Is King
It is the presentation of that evidence that becomes critical, according to Michael Hahn, Sr. Director, Product Management of Sanction Solutions®, which this summer joined LexisNexis. "All the time and effort you put into amassing and reviewing evidence goes out the window if you can't present the material effectively." Judges, juries and arbitrators will not cancel their kids' soccer games just so you can look for Document #746838383, or that quote that's 1 hour and 43 minutes into a 5-hour video. You also will have circumstances where an opportunity you did not anticipate suddenly presents itself, like the chance to expose a contradiction or lie-if only you could show it to the arbiter of your case-in the next 10 seconds.
Trial lawyers are beginning to use advanced presentation technologies to find and display evidence from a storehouse of data that simply would not have been possible, or attempted, just a decade ago.
Hahn, an expert in trial presentation techniques and technology, noted several examples he has witnessed where uses of such advancements gave attorneys an edge over their opponents. Using Sanction® litigation presentation software as an example, Hahn said it gives litigators a single resource to quickly assemble documents, exhibits, transcripts, questions, visuals and video. It helps them manage and present evidence throughout litigation, categorize that evidence, and then create clear, polished and compelling presentations, he said.
One case, Hahn recalls, hinged on whether a plaintiff worker was telling the truth about his past complaints of pain he endured from an on-the-job injury. Using Sanction software, the plaintiff attorney was able to play a video of a defense witness-an incident investigator-saying the worker never complained. At the same time, the plaintiff attorney displayed a document the worker had given to the investigator himself in which he told him about his pain! In the same case, the plaintiff attorney was able to remove video clips based on the judge's rulings on admissibility. The defense, on the other hand, was not able to edit on the fly because their video evidence was on DVDs, Hahn said.
Let Me Replay That
In another case involving roughly a thousand exhibits, Hahn said attorneys employing the Sanction presentation technology took advantage of side-by-side displays, making it easy for jurors to compare specific portions of one document with the specific portions of another. During this case, Hahn added, the opposing counsel mistakenly played a video clip that actually refuted an element of his own case. The more technologically equipped attorneys were able to use the snapshot feature of Sanction to record that clip and pull it into their own presentation of video evidence. Pretty powerful.
Hahn said the side-by-side comparisons and the ability to zoom and focus also played a critical role in a medical malpractice case where a parade of complex and unfamiliar scientific images and documents would have tested the attention of even the most focused among us.
In a criminal case, Hahn said attorneys who needed to prove the appropriateness of police action were able-using the Sanction advanced presentation platform-to synchronize recordings of scratchy law enforcement radio conversations with a transcript. This made it easy both to find relevant conversations and make it clear to the jury what the officers were saying.
Trial lawyers looking for an edge would be wise to explore and learn state-of-the-art presentation platforms. As the examples provided here make clear, the ability to access critical information quickly, present it effectively, grab and integrate new information on the fly, work with many different data formats, and both direct and hold a jury's attention, can make a huge difference in advocating for your client in court.
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