Tennessee Business Litigation Law Blog

John Day posted on Day on Torts this morning about the admissibility of computerized records at trial. According to this law.com article mentioned in the post, a new 9th Circuit Bankruptcy Appellate Panel opinion ups the ante for the testimony required to authenticate and admit computer records. Specifically, the 9th Circuit's decision in In re: Vinhnee, 2005 WL 3609376 (B.A.P. 9th Cir. Dec. 16, 2005) would appear to require more than the traditional proof that the records are kept contemporaneously in the ordinary course of business. Instead, the courts appear to be moving toward requiring competent foundational testimony regarding how the computer hardware and software maintains the data.

With more than 40% of the national jury pool made up of young "Generation X" and "Generation Y" jurors, the use of technology in the courtroom is quickly becoming a necessity. Following up on my earlier post about using Powerpoint for fun and profit in the first Vioxx case, there is a terrific post at Presentation Zen on good Powerpoint design. The author of the site is an Associate Professor of Marketing and Multimedia Presentation Design in Japan. The post is worth checking out, especially for the specific examples of how to better use Powerpoint to communicate your points in a presentation (or oral argument, or closing argument).

We commonly use Powerpoint in our firm for mediation, oral argument, and trial presentations. I've written it before here, and I'll write it again now: a Powerpoint presentation is much less effective if it is just a bulletpoint version of your speech. I always try to think of what background graphic would be used by a newsmagazine like Dateline NBC, 20/20, or (God and Judge willing) the Daily Show. It's not going to be a simple three line bulletpoint list (by the way, social science says no more than 3-5 lines on a slide if you are going to make a bullet list). Instead, it's going to be something that adds to the speaker's own message.

This article from the LA Times goes over Mark Lanier's much applauded use of Powerpoint in the first Vioxx wrongful death case. (Although Vioxx is a bit off topic for here, you can read much about the Vioxx cases at John Day's Day on Torts blog.) (Thanks to the Legal Reader for the link.)

Use available technology at trial and in oral argument. This article over at Law.com similarly directs you to "Make the Most of Courtroom Technology", but I would go further even than the article suggests. Using video depositions is a starting point; Branham & Day has videotaped the majority of the depositions we take since before I started three years ago. We have impeached a defendant using the courtroom's video feed of his trial testimony. We have used presentation software to give the court a side-by-side comparison demonstrating that two documents were substantively identical. Although it may not make sense (from an economic or strategic standpoint) to use high-tech tools in every case, they provide a tremendous resource for a litigator worth considering.

There's a post on our Medical Malpractice Blog (medmalblog.com) today with several Tennessee cases on limits to using computer generated videos in trials. If a picture is worth a thousand words, a running video is worth exponentially more. They're also pricy to create, so it's a good idea to consider these issues before spending the money on a video that would be persuasive, but is nonetheless inadmissible.

This article discusses the gradual death of the "Goliath effect" - or worrying that using computers in the courtroom will make you appear more wealthy rather than more persuasive. This is a dead issue, at least in the realm of technology. Given that more than 60% of Americans use the Internet, thoughtful use of technology is not going to alienate jurors. It's now in the lawyer's hands to use videoclips to remind jurors of important testimony, to zoom in and highlight critical sentences from 300 page documents, and to convert painfully dry statistics into charts and graphs that effectively communicate to the jury. These are important tools in the document-intensive world of commercial litigation.

Video cameras in the courtroom are a growing trend here in Tennessee. I am referring not to TV crews, but closed circuit cameras recording an entire trial. The Davidson County Circuit courtrooms have cameras set up to record witness testimony, even in the courts' temporary Metro Center home. At the end of each day in the trial, lawyers can purchase CD-roms of the videos.

An article over at Law.com looks at lawyers using trial video during closing argument. This is hard work. Any attorney who has worked closely with clipping a videotaped deposition knows how time-consuming it is. Now magnify by the stress of a lengthy trial, and fit it in your schedule to pick out clips during your "free hours" in the middle of trial. You also need a great deal of pre-trial planning, in terms of having staff available to get the videos loaded onto your computer, clipped, reviewed by a knowledgeable attorney, and ready to play back at trial. The result, though, can be extremely worthwhile.

We have used trial video of witnesses in cases, and been very happy with the results. Just like a videotaped deposition versus reading a transcript, a picture is worth a thousand words.

Powerpoint presentations are easy to prepare. There's a fine line between an effective Powerpoint and a distracting one, though. While you're actually drafting a Powerpoint, it's s easy to get distracted into thinking that it is the presentation, but that's not the case. It's a visual aid, and should not have any more than you would want to have blown up on a board on an easel. I try to think of what would be effective on a newsmagazine style TV show, like Dateline NBC or 20/20. The background graphics don't replace the reporter. They just amplify the message and make it a little more interesting. The reoprter - or the lawyer - is still the key to the presentation. Here's a link to a Powerpoint presentation about creating more effective Powerpoint presentations. It's a decent little summary of some of the issues you should consider before getting started on a presentation.