Not so long ago, the art of courtroom persuasion was all about the spoken word. Words were uttered to persuade, condemn, or exonerate.
And while words are still pretty important in a courtroom setting, digital technology has brought a quiet revolution in the way that juries process information. The folks sitting in the jury boxes today aren't like the ones who sat there even a decade ago. Many have become accustomed to receiving information digitally and visually, whether it's from a TV screen, a desktop computer, laptop, tablet computer, or smartphone. Lawyers who want to reach these jurors have to adapt their presentation techniques.
Fortunately, a plethora of new tools are available for presenting evidence in court. The big guns in this category are multifaceted presentation software programs that can completely digitize legal exhibits and display them to juries. Among the major packages on the market are ExhibitView, TrialPad, TrialDirector, and Sanction.
There are some differences in the ways various trial presentation software products work, but all of them assemble evidentiary documents, exhibits, transcripts, questions, visual images, and video for managing and presenting throughout litigation. The software can categorize items and transform them into polished exhibits.
These software packages are quite powerful, and consequently they don't come cheap. For example, TrialDirector 6 costs $695 for a single-user license, and then there's a $139 yearly maintenance agreement. Both ExhibitView and TrialPad are designed for the iPad, and their pricing (and feature sets) are more modest. ExhibitView costs $499, and the TrialPad app can be purchased for $89.99.
Trial presentation software allows litigators to present evidence to a jury in a variety of ways. With a package such as Sanction 3, attorneys can convert videotaped depositions into multimedia presentations. A lawyer presenting an automobile injury case, for example, can use the array of multimedia tools to show the jury a street map of the accident scene, a diagram of the cars involved, and photos or an animation of the crash itself.
Computer animations have become so effective at convincing juries that the defendant in a recent California murder trial objected that they create an unjustified "air of technical and scientific certainty." But last summer the state Supreme Court rejected that argument, ruling that animations could be allowed for the limited purpose of illustrating expert testimony. The opinion summed it up this way: "[T]he relevant question is not whether the animation represents the underlying events of the crime with indisputable accuracy, but whether the animation accurately represents the expert's opinion as to those events." (People v. Duenas,
55 Cal. 4th 1, 21 (2012).)
The complexity of trial presentation software packages carries with it potential downsides. There's a fairly steep learning curve in getting to know one of these programs well enough to be confident about actually using it in front of a jury. Multiple technical glitches during a courtroom presentation are sure to annoy jurors. Attorneys who are new to trial presentation software should figure on dedicating a month or two to getting to know the package first.
Even lawyers who are well versed in their trial presentation software of choice must be careful how they use it. For example, when counsel obscures an underlying document with text highlighting his or her interpretation of the document, jurors often conclude that counsel is hiding adverse evidence, according to experiments conducted by the Courtroom 21 Project, a joint project of the William & Mary Law School and the National Center for State Courts. The same thing may happen when counsel fails to leave the image on the display long enough for the jurors to read it for themselves, the researchers found.
Pick and Choose
Another category of increasingly popular digital tools focuses on the composition of the jury itself. Software such as iJuror, Jury Box, and Jury Guru aims to bring the jury-selection process into the 21st century. A surprising number of lawyers still rely on notes they scribble on Post-Its or on the printed jury lists provided by the court. These handwritten notes are rarely saved, so there's no permanent record of the jurors' answers to questions or such actions as peremptories or dismissals for cause.
Jury-selection software remedies this by creating a database into which all juror information can be entered, tracked, and stored. For example, iJuror lets attorneys assemble a digital record for each prospective juror, displaying an image/graphic of a jury box onscreen. When users tap on an empty seat, a form appears with places for entering a juror's name, line of work, and hometown, along with additional notes. As the selection process continues, lawyers can layer more information into the database: gender, race, marital status, number of children, education, and whether or not the attorney wants the person on the jury. Users can also record whether a prospective juror has a police officer in the family or an arrest record, whether they have been a victim of a crime, whether they've served on a jury, and if so what the verdict was. Icons for each prospective juror can be dragged and dropped in or out of the virtual jury box as they are selected or dismissed. And here's another handy feature: Most jury-selection packages will generate a detailed report that can be emailed to the user, co-counsel, or jury consultants.
Of course, technology alone won't win the day in the courtroom. All the digital bells and whistles in the world can't save a weak or poorly presented case. But the right courtroom software can help lawyers organize and present their best possible case to jurors.