The Exhibit View Take on EATS 2012: A Guest Piece by Bill Roach

My name is Bill Roach, Partner with ExhibitView Solutions, LLC and I was invited to take part in this year's "Educating Advocates" event. My presentation was late in the week and I was getting quite nervous. I mean, when people come up to you and say, "Are you ready for your show?", I thought, OMG, I had no idea what I was in for. However, being a musician with years of on- stage experience and a new "good listener", I was able to really take in much of the information I heard and cultivate a reasonably good presentation with several eruptions of laughter, but more on that later...

This year's focus was on implementing technology in Trial Advocacy classes. I listened intently as many in this group of about 60 attendees were "very excited about technology as a whole and some were a bit frightened by it"  The speakers all had experience with courtroom technology. Some are simply experts on most everything you can use in a courtroom. Everyone in the room agreed that the younger generation simply gets it much quicker. Certainly the younger set are less intimidated by projectors, cables, and laptops and they probably LOVE figuring out remote controls  ( I have to hold them too far away to read the small print)!

One recurring debate was "how much" technology should the students use in class? The best answer on that question for me, as an experienced trial technician was "as much as the students are comfortable with". I recommend (after years of courtroom experience operating a laptop and trial software on behalf of attorneys), thatteachers should advise students that it will crash and burn. It's natural, normal and we live in an imperfect world. It has happened to me and we just keep moving forward, get it fixed and continue after a break. Everyone agreed this should be a part of the learning adventure. Some of the teachers also suggested they simply tell students they must use technology and give no parameters. Leave it up to them. I really like this approach because it's what they will do in practice. I see it all the time. A lawyer calls me to ask about our product and says they need to get in the groove and improve their presentations with technology. Everyone also agrees it is becoming expected by juries. I tell my clients and prospective attorney clients to start slow. You don't have to load everything into your laptop or iPad to get started. If you have trepidations about technology, just give it a go with some basic exhibits, ones you can have readily available in hard copy to just move on.

You can use a laptop and projector, an iPad and a TV, vice versa, speakers, cables, wires, etc. Some courtrooms are wired, some are not. Some litigators have been at fancy courthouses with all kinds of technology around them, the hardware kind, and choose to set up their own simple projector and screen. Doing it this way keeps the user comfortable.

My finest moment during my presentation came as follows. During the first day Professor Rafe Foreman of UMKC School of Law gave a demonstration about a donkey kicking a client. He set the stage perfectly on the floor showing the distance the donkey had to reach to kick his client. He picked a member of the audience who acted as a defense expert. Rafe put him on one end of the room and about 15 feet away a white board. Rafe asked, "Do you think the donkey could reach my client and kick him?". The expert said, "No, it's too far". Rafe then grabbed his hand and spun around and kicked the board. Even I was amazed and thought WOW, what a great way to visualize a scene to a jury because even I thought the board was too far away. Rafe then asked the expert, "Now do you think the donkey could have kicked my client?" and in a soft, under his breath, quintessential defense expert reply he said,  "maybe an acrobatic donkey".  So, I went back to my hotel room later that night thinking about this experience and what I had heard. I searched on YouTube and found a video clip I was happy with. 

During my presentation the following day, I asked everyone if they remembered the demonstration with the donkey. They said they did. I then asked if anyone actually heard the defense expert say those last words and someone in the second row exclaimed, "Yeah, he said it". Playing the actor I said, "I submit to you ladies and gentlemen of the jury there is such a thing as an acrobatic donkey and I have proof!" I tapped my ExhibitView iPad and played a clip of a donkey flying through the air being pulled up by a parasail boat. The room went crazy, the jury was mine.

Our company ExhibitView offers its desktop products at no cost to faculty and students. If you would like more information on our Law School Program or if you would to speak with me, Bill Roach, please don't hesitate contacting me at ExhibitView. mailto:wroach@exhibitview.net and our phone number is 706-622-3305.

Day 2: EATS 2012

It is a beautiful afternoon in Gulfport.  Day two of the 2012 Educating Advocates conference is nearly over, and what a great day it has been.  This is the premier advocacy teaching conference in the country for a reason: advocacy teaching seems to attract some of the most interesting and creative people you'll ever meet.  I always find this conference energizing, and I'm grateful for the opportunity to attend and participate.  I leave with new ideas for improving my classes, eager for the chance to try new things with my students.

As I write this, Joshua Karton, the high priest/shaman of teaching advocates to become human beings, is working his magic with this year's group of new attendees.  In another room, a group of conference veterans has just finished identifying a number of common advocacy teaching problems (and suggested solutions) that will become problem-solving vignettes for the entire conference tomorrow.

A few highlights from today's presentations.

1.  Trial Competitions.  The morning began with an all-star panel on the topic of Eddie Ohlbaum's Model Rules of Conduct for Mock Trial Competitions (MRMT).  The panel consisted of Bobbi Flowers (Stetson), Eddie Ohlbaum (Temple), Jay Leach (McGeorge), Lee Coppock (Stetson) and Dave Erickson (Chicago-Kent).  All of the panelists have coached championship teams and thus brought a tremendous amount of credibility to the discussion.  This was not, in other words, a collection of perennial losers grousing about the general unfairness of life (I offered to moderate such a panel, but Charlie felt the credibility of his conference, and perhaps his law school, would suffer if I did so, and so he rather sensibly declined; also, Hugh and I had already participated in panels, and the other person we would have brought on the panel could not get funding to attend the conference).  All of the panelists coach teams to win ethically and have experienced considerable success doing so.  And all of them have seen the good, the bad, and the ugly in trial competitions.

The MRMT, which have been the subject of several blog entries and comments in the past (available here and here), were used in a number of competitions this past year (I am going to ask Eddie's permission to post these rules in the Documentary Resources page on this blog).  The panel reported on the rules and led a lively discussion of cheating, whether the rules are necessary, what other types of rules might work, the role of competition committees and protests, and other similar topics.

Eddie memorably summed up the need  for a 30-page code: "We have 30 pages of rules because there are at least 60 pages of ways to cheat at a trial competition."  Eddie identified a laundry list of ways to cheat in a Powerpoint presentation.  I will not post it here because of the possibility that it contains methods that some villainous coaches or nefarious students may not have thought of; there is no sense handing ammunition to an enemy.

To say that this was a lively discussion would be to mingle cliche with understatement.  The panel and the audience were fully engaged, with all sides of the issues (other than the pro-cheating crowd; no one ever defended that position) zealously advocated and debated.  I think it is fair to sum up the session as follows: (1) we all agree there is a problem with cheating and unethical behavior going unpunished or even rewarded at trial competitions; (2) there are a variety of approaches to solving the problem, including better competition files,  the MRMT, positive incentives, negative incentives, naming and shaming cheaters, competition bans for cheaters, stronger competition protest committees and effective protest procedures, and the like; (3) in practice, the MRMT have worked remarkably well and have been fine-tuned to reflect the experiences and feedback from the competitions; (4) other approaches, especially better case files such as the one used in South Texas's competition this year, have also worked; and (5) the increased attention to this issue is making a difference.

2.  Technology in Advocacy Teaching.  The second panel of the conference devoted to this topic, this one was moderated by Hugh Selby (Australian National University) and included Tom Stewart (St. Louis University), Lou Fasulo (Pace) and the Honorable Robert McGahey (Denver judiciary, University of Denver Sturm College of Law).  Tom Stewart began with a presentation about teaching evidence using a law firm model and treating the students as associates in his firm (with Tom as senior partner, of course) rather than the traditional student-professor relationship.  Tom has obtained a fellowship to design and teach this course using an experimental classroom at St. Louis University.  The classroom is designed to facilitate a different model of teaching and includes some absolutely amazing technology and equipment.  The heart of the course, though, is Tom's course design, which is truly innovative and about which I am sure we will hear more in future blog posts from Tom.

Lou discussed innovative uses of technology at Pace.  The first was permitting students to record their best performances on SD cards, with those performances graded.  In other words, the student could refine, retape, record and redo the assignment until satisfied with their performance, in much the same way students are permitted (and encouraged) to rewrite papers.  This best performance would then be graded.  This is a different model than the typical advocacy model, which grades a particular performance at a set time, regardless of whether that is the student's best work.  Taking advantage of some new video equipment at the school, Lou now gives his students the opportunity to conduct live, real-time critiques of their peers in the courtroom.  The courtroom performance is fed to a monitor in the jury room.  As the advocate in the courtroom is performing, Lou leads his students in a critique of the performance.  They cannot be seen or heard by the advocate in the courtroom.  Lou also has begun encouraging his far-flung student body to practice their advocacy performances with each other outside the courtroom through the use of Skype, Google Plus, and other technologies.

Bob McGahey gave a judicial perspective on technology and exhibits in the courtroom.  Like Michelle Joiner in yesterday's panel, he emphasized the importance of the fundamentals, not only to cover for technology failures, but also to ensure the best and most effective use of technology.

3.  Exhibit View.  There's a new trial software suite, Exhibit View, that includes a traditional PC software suite as well as an IPad app.  Bill Roach of exhibit view gave a presentation on the software.  Bill is going to write a blog post on the software (and his views of the conference) in the next few days, so I will say only that this looks like a great piece of software.  I'm going to obtain it, use it and teach it to my students.  It's intuitive, easy and affordable.  The company's website is www.exhibitview.net.  Visit the site; I'm confident you'll be impressed with the software.  I'm particularly excited about the IPad app.

Until tomorrow, all the best from Florida!

Lit Tech Gaffes Lead to Clemens Mistrial

The following post was submitted by Mike Ko of Groundwork Trial Consulting in Chicago.

The Roger Clemens perjury trial ended in a mistrial when the prosecution repeatedly made evidentiary mistakes that even a "first-year law student" wouldn't have made, according to the judge (a news account of the trial is available here). Commentary on the trial makes it appear that this mistrial was about prosecutorial hubris or outright disregard for the judge's rulings. But a look at the offending evidence shows that this mistrial seems to be more about miscommunication between trial counsel and the tech personnel running the trial equipment.

Offense #1: Improper Character Evidence

The problematic pieces of evidence all came from the video from the 2008 Congressional hearings on steroid use in baseball. The prosecution played portions of the Congressional hearing where Rep. Elijah Cummings (D) commented on the positive credibility of Andy Pettitte, a key prosecution witness who would testify later in the trial. Rep. Cummings' comments bolstering the credibility of a Prosecution witness was clearly inadmissible and should have been redacted from the video. So, how did this get overlooked and get published to the jury?

The Solution: Communication with the Tech Operator

Presumably, these portions of Rep. Cummings' testimony would have been covered by a Defense motion in limine. In addition, it is unlikely in a trial of this magnitude that the government attorneys handling motions in limine would also be the ones to go back and make redactions to the video. That tells me that either: (1) trial counsel failed to communicate the judge's rulings to the person in charge of preparing the video for trial or (2) the person in charge of making those necessary redactions dropped the ball.

There are a couple of ways to avoid this type of communication failure. In particularly high-stakes trials or trials that are on especially expedited schedules, I recommend that the person(s) in charge of preparing/redacting visual evidence attend the motion in limine conference. That way, while the trial attorneys are making notes on how the rulings effect trial strategy, the tech operator (whether paralegal, attorney, or consultant) can take notes on how the rulings effect trial exhibits. If the tech operator isn't going to attend the motion in limine conference, the trial attorney must make sure to check in with the tech team to inform them as to what stays in and what needs to be redacted out.

The other way to avoid this type of communication failure is for the tech operator to check in with the trial attorneys. Whenever there is a evidence video deposition or other video that is going to be published to the jury, the tech operator should make a point to follow up (repeatedly, as is frequently necessary) with trial counsel to ensure that there are no additional rulings that will effect what gets redacted.

Offense #2: Double Hearsay

The prosecution also failed to redact portions of the Congressional hearings video where Rep. Cummings read an affidavit from Andy Pettitte's wife. At the same time the video played, the Prosecution displayed the transcript of what was being said. And although scrolling the transcript in a closed caption fashion is normally best practice, when the Prosecution paused the video upon the objection, this froze the text of Mrs. Pettitte's affidavit on the screen:

"I, Laura Pettitte, do depose and state, in 1999 or 2000, Andy told me he had a conversation with Roger Clemens in which Roger admitted to him using human growth hormones."

This text remained frozen on the screen in view of the jurors while the Judge and counsel held a sidebar to discuss how to minimize the damage of this inadmissible evidence. Apparently, this sidebar lasted for several minutes.

The Solution: Training

First, the lapse in communications that allowed the first error with the video also seems to apply here. The attorneys would have known that this portion of the video should have been redacted, but somehow, the tech operator didn't. Nevertheless, any seasoned courtroom tech operator or trial consultant should know that, whenever there is an objection to evidence being published electronically, it should be taken down immediately and republished only after the judge overrules the objection.

The twist, however, lies in the fact that this was video. Because of the software needed to scroll text along with the video, if the objection to the video is overruled, it can be difficult to resume play at the exact spot of the objection. In addition, some trial presentation software has a quirky bug where re-cueing a video to a specific point will cause the remaining redactions to the video to malfunction. So, pausing the video (rather than taking it down completely) is probably the best thing to do here. However, there are still numerous ways the tech operator could have avoided showing the transcript of the affidavit to the jury:

(1) Turn off the projector/TV: The laptop and software will still keep the place of the video, but the jury will not see anything because the juror screens will be off. If there are multiple screens and/or TVs, make sure to turn them all off. Also, many of the projectors powerful enough for courtroom settings also have a mute setting on their remotes, where the screen will go black and audio cuts out. Failing a mute setting on the projector, the operator can simply put the lens cap on and block the image. Sometimes, the low tech solution is the best. This would have been one of those times.

(2) Take down the exhibit anyway: even though it may inconvenience the court and jury for the operator to re-cue the video back to the spot of the objection, such an inconvenience is worth it when the alternative is a mistrial, as it was in the Clemens' trial. (Or, if you can live without scrolling text, you can export the redacted video to a format playable on a media player such as Quicktime or Windows Media Player. This would resolve re-cueing issues, and you can just take down the exhibit upon any objection without concern about resuming play.)

(3) If all else fails, kill the system. And do it fast; time is of the essence. Start with unplugging all the cords from the laptop - the vga cable and the audio cable. If that doesn't work, force shut down the laptop. If that doesn't work, shut down the projector. If that doesn't work, unplug everything. These measures are severe and will take some time to recover from before the trial can resume. But, again, given the alternatives, it will be worth it.

--Mike Ko. mikeko@groundworktc.com

Southern District of Illinois Litigation Technology CLE

A few months ago, one of my colleagues approached me with an offer I couldn't refuse. The United States District Court for the Southern District of Illinois wanted to hold a CLE on courtroom technology. They wanted our law school, the Southern Illinois University School of Law, to help sponsor and organize the CLE, and they wanted us to focus not only on the types of available courtroom technology, but also on the advocacy and evidentiary aspects of using it at trial. Because I teach advocacy and evidence, I was on the hook to help plan and present the CLE. And because I met and became friends with Nick Caputo of the Caputo Law Firm at the Stetson Educating Advocates Conference a couple of years ago, I knew just who to call to ensure the CLE would be successful. Nick is a Chicago attorney and an adjunct professor at Chicago-Kent College of Law, where he coaches trial teams and also teaches the Mike Rogers Litigation Technology course.

To make a long story short, Nick agreed to help with the CLE, on the condition that he could bring with him a crew of trusted associates and fellow Chicago-Kent adjunct trial advocacy professors: Nikitas Fudokos, of counsel to the Caputo Law Firm; and Mike Ko, an attorney and trial consultant for Groundwork Trial Consulting in Chicago. They had to take a geography test, sign a "civilization waiver," and get special permits to travel south of I-70—something few Chicagoans have ever done—but we were able to make all the necessary arrangements, and they showed up at the appointed day and time.

The CLE took place last Friday, June 24, 2011. We conducted a morning session in the Benton courtroom, then drove two hours to conduct an afternoon session at the East St. Louis courtroom. Between the two locations, approximately 80 attorneys attended the CLE. Both courtrooms are well-equipped with the latest courtroom technology and have experienced and helpful professional and IT staff.

In addition to Nick, Nikitas and Mike, other presenters included Judge Michael J. Reagan of the Southern District, who spoke on ethics and professional responsibility issues pertaining to demonstrative evidence and electronic evidence; Judge J. Patrick Murphy, who presided over the Benton session and made introductory remarks; Thomas Galbraith, the court's IT officer, who spoke about the court's technical capabilities and the importance of advance coordination; K. Jayne Reynolds, a court deputy in the Benton courthouse, who demonstrated the court's video conferencing system; and yours truly, with a brief presentation on authentication and admissibility of electronically stored evidence. Copies of some of our handouts are available at the end of this blog entry.

The CLE exceeded our expectations. Nick and his crew gave a series of amazing demonstrations of courtroom technology in action. They used Powerpoint to demonstrate opening statements and closing arguments, and Sanction to demonstrate direct and cross examination. Their demonstrations were concise and powerful, and they followed them up by showing how the presentations were put together. Nick introduced various open-source and commercial software tools, including Powerpoint, Google Earth, Google Scribble, Windows Movie Maker, and Sanction, and he discussed the learning curve and preparation requirements for using them. Judge Reagan's presentation on ethics was informative and entertaining. In the spirit of our technology-based CLE, Judge Reagan delivered his remarks to the Benton courthouse over the video-conferencing system from his chambers in East St. Louis—a two-hour drive away.

What did I take away from the CLE?

• Courtroom Technology is Persuasive and Powerful. Used properly, courtroom technology can multiply an advocate's persuasive abilities and help teach the jury in a way far superior to the spoken word and static displays mounted on poster board. Mike Ko demonstrated an opening statement in a motorcycle accident case using Powerpoint. To be sure, he gave an excellent opening statement on its own merits; it would have been good even without Powerpoint. But the audience was mesmerized by the slides, and they significantly amplified the persuasive impact of his words. Later in the course, Nick Caputo impeached a witness using Sanction. The video recording of the witness's statement was reinforced by a window in which the text scrolled in real time, synchronized with the video statement. No wiggle room for the witness with an impeachment like that.
  
• Proper Use of Technology is the New "Standard of Care" for Attorneys. The advocacy advantage increasingly will go to attorneys who know how to use this technology persuasively. "It's too hard," or "I don't have time," or "It's too expensive," are excuses that will lose cases—and the day of reckoning may not be that far off.
  
• Jurors Expect Visual Stimuli. In the words of K. Jayne Reynolds, "I know these people. I bring them donuts, and I listen to what they have to say. Believe me, they're looking for this stuff. They ask about it."
  
• Technology Levels the Playing Field. This is a point that Nick effectively made several times. A tech-savvy small firm can compete with larger firms and win cases that might not have been possible without the technology. Most of the technology Nick and his crew demonstrated already resides on a reasonably well-equipped laptop. Other equipment, such as projectors and screens, can be rented on an ad-hoc basis. Attorneys who fear technology or don't have the time to learn it can hire litigation consultants to help them. The point is that technology can be integrated on just about any budget.
  
• I'm Not Teaching to Standard. I have a lot to learn about integrating available courtroom technology into my advocacy teaching. We don't offer a litigation technology course, but I plan to change that in the near future. What I've done so far is a pale shadow of what could be done; essentially, I've used Powerpoint and the Elmo as electronic versions of poster boards and easels. I've offered up a lot of excuses, most of them of the variety listed earlier. I'm not sure how well litigation technology would fit into a basic trial advocacy course; it seems hard enough to teach people to lead on cross but not direct; but I do think it ought to be offered as an advanced course. Most of the students have everything they need already loaded on their laptop computers.
  
• If You Don't Know How to Do Something, Call in the Experts. This CLE would have been a pale shadow of itself without the expertise of Nick, Nikitas, and Mike. Simply put, they demonstrated the best practices in using technology to teach and persuade. They kept an audience of seasoned attorneys and judges enthralled, and their performance was in itself the best way to persuade skeptics of the value of using technology. This same principle applies, I believe, to attorneys who want to use technology but don't know how to do it. Call an expert to help. It will be worth the effort.

6-21-11 Courtroom Tech Checklist

6-21-11 Choosing a Vendor

Evidentiary Principles

Advocacy Agony Aunt: Courtroom Technology in an Unwired World

Anonymous said...

Dear Advocacy Agony Aunt,

I have a question about teaching courtroom technology (visual presentation programs, trial software, and the like) to law students. Is the juice worth the squeeze?

The reason I ask is that most of the students I teach practice in smaller communities where there is virtually no likelihood of any of these technologies being installed in the courtrooms in the foreseeable future; budgets are simply too tight. While there is no prohibition against bringing A/V and computer equipment into courtrooms, this must occur at the client's expense--another problem in our straitened economic climate.

Our law school courtroom is well-equipped with these technologies. Outside of federal courtrooms, none of the courtrooms in the area have--or are likely ever to have--these capabilities. I suspect this situation is not unusual in the United States, or even in other countries.

Am I better off teaching the basics that worked well in the 19th and 20th centuries, or should I enter the brave new world of technology and teach its use even if it will likely never be use?

Sincerely,

Larry Luddite

Hugh Selby Replied

Dear Larry,

As your cousin twice removed I sympathise, not only for your predicament but for your students and their future in olde time court houses where the cisterns are still noisy, the windows open (if the sash cords have been replaced), and people sit on wood rather than these new fanged plastic things that are extruded from one size fits all molds.

But I digress. Your students (and you too I am sure) are familiar with powerpoint, with mobile phones, with photocopiers, and marking pens. These are the provisions at the half way house between the high tech and the blackboard with its carcinogenic chalk dust.

Step 1: Tell em to use that camera in the mobile phone to save scenes, scribbled notes, documents left in the wrong places, text from a hardcopy of the reported case that will trump the other side.

Step 2: Because they started to be bombarded with powerpoint in elementary school they have grown up to think it's necessary. So, have them prepare powerpoint slides and use those slides as a vehicle to improve their persuasion: that is, they need to learn what should and should not be on those slides and how to prepare the page. By the way NITA has a book or two on this subject.(See our advocacy link to NITA and go to their online bookstore.)

Step 3: Get thee and them to a whirly photocopier. Make sufficient copies of each and every item so that every person involved in making a decision will have a copy in front of her or him.

Step 4: Ensure that each of those people has a pen, pencil, marker so that they can make their thinking marks on the relevant copy. That way they own it. This is so much better than on and off light sources (such as screens in court rooms). Once those are turned off that's the end of their influence.

IN summary, leave the 19th and three quarters of the 20th century behind. Embrace the years from about 1980 to 2005 with glee.

March 2, 2011 5:53 PM


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