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From the Daily Record: Beyond PowerPoint in the Courtroom

| Jun 19, 2010 | IP and Technology

Originally published by the Daily Record on July 31, 2009 (republished with permission.)

The evolution of courtroom technology is under way, and it will be computerized.

The fuzziness of blown-up images and charts on poster board, long the standbys of trial work, can be sharpened with illustrations and three-dimensional graphics. The rigidity of a PowerPoint presentation can be exchanged for the nimbleness of a database capable of pulling up any needed documents in a matter of seconds. A witness’ deposition can be brought to life through video synched to a transcript.

Proponents of the technologies acknowledge the new methods may seem foreign and uncomfortable to some lawyers — the same lawyers they hope to face as opposing counsel. Because in this technological survival of the fittest, advocates believe those who do not adapt will face a legal fate equivalent to extinction: losing.

“You’re either with it or the other side is going to use it against you,” said Daniel J. Miller, an associate with Snyder & Snyder in Pikesville. “I don’t see how you can put on or prepare a case without it.”

Miller speaks from experience as both a lawyer and technologist. He and his brother, Michael, are sons of Art Miller, owner of the eponymous Towson-based court reporting service. At a trade conference about a decade ago, the Miller brothers saw an exhibitor’s booth featuring computer software that allowed the user to call up any document in a database and magnify and highlight specific passages.

“It wasn’t necessarily new. It was new in our area,” said Mike Miller, now the president of MGM Trial Services Inc. in Lutherville.

The brothers went to Arizona to get training in the software and started their own company. They realized the technology’s effectiveness during a high-profile 2001 trial involving a contested will. The lawyers they worked for had videotaped each change of the will, and the brothers transcribed the dialogue and synched it to the video.

Their side won, and the technology drew rave reviews from the judge and jury.

“We were convinced this was the way to go,” Mike Miller said.

They pitched their services to local law firms. Andrew G. Slutkin saw one of the presentations and was “blown away,” even though he was hardly a novice to the concept.

“I don’t think I’ve ever done a major trial in the last 12 to 15 years without using significant technology,” said Slutkin, of Silverman, Thompson, Slutkin & White LLC in Baltimore.

To Slutkin, enhanced technology aids jurors as well as lawyers. He can pull up a medical record in a catastrophic injury case that can help the jury understand a point he is trying to make, or emphasize a theme in a business litigation matter.

“We’re not just saying it,” he said. “They’re seeing it.”

Nancy McManus, president and owner of Executive Exhibits LLC in Towson, noted that any televised sporting event features graphics and animation, and medical illustrations are staples of popular shows such as the “CSI” series.

“They’re trained to lean on it,” she said. “The juries have almost demanded it.”

But that wasn’t always the case.

As recently as a decade ago, McManus said, many lawyers feared jurors would view enhanced technology as “overkill” and “throwing money around.”

Mike Miller heard the cheap shots from lawyers on the other side.

“‘We’re not Hollywood, we’re simple folk,’” he said. “It never worked. The jury said, ‘We appreciated the technology.’”

Some judges, though, took a little convincing.

Francis J. Gorman, of Gorman & Williams in Baltimore, recalled his first courtroom technology attempt 20 years ago.

It was a video simulation in a trademark case showing one symbol morphing into the other — and the judge wouldn’t allow it.

Backup Plan

While that may be less of a risk in these days of wired courtrooms, it’s still a possibility.

“You want to be able to function without it,” said Dan Miller, who handled technology in-house for Snyder & Snyder before earning his law degree. “You still need to be a good lawyer.”

His philosophy is “fear something will go wrong, plan something will go wrong.”

At least one glitch is to be expected during a weeklong trial, he said; which is why he was pleasantly surprised there were no problems during Snyder & Snyder’s five-and-a-half month trial against ExxonMobil Corp. over the massive 2006 Jacksonville gas station leak.

In addition to his primary laptop computer, the lawyer had two more laptops and two desktop computers ready as backups, as well as another backup at the firm’s office. He worked well past midnight many days, making sure the presentations were identical on each system.

The presentations included computer simulations, video, highlighted documents and illustrations and were used at all points in the trial, which stretched from last year to this and featured hundreds of thousands of document pages.

“We’re going to get the jury psyched about our case,” he said. “If they’re bored and not interested, you’re going to lose.”

Creating A Buzz

Stephen L. Snyder estimated his firm spent into the high six figures on technology during the trial, including the equipment, software and outside assistance.

“It’s a persuasive method to interact with the jury on complicated issues,” he said. But Snyder also used the technology as an icebreaker; his opening statement featured images of greeting cards celebrating Thanksgiving, Christmas and the other holidays the jury would be spending in the courtroom.

“It created an open relationship between my firm and the jury,” he said.

One of Snyder’s ideas was featured in his closing argument: a 3-D animation where many of the trial’s key documents fell to the floor; when they landed, they spelled out “fraud.”

The jury ultimately exonerated Exxon on the fraud charge. The animation, however, created a buzz in the packed courtroom.

It was the work of Owings Mills-based Encompass Communications Inc. and took more than 80 hours to complete, according to sales director Joe Uddeme.

Encompass began several years ago as an advertising firm and, while it started offering its services to law firms only recently, Uddeme already sees the parallels.

“It’s about making a visually appealing story for the jury, something they will remember, something that will stick,” he said.

The longer they have to prepare, the better, Uddeme added.

“The sky’s the limit as long as we have time,” he said.

McManus and Mike Miller agreed.

“You can’t wing this stuff,” McManus said. “It’s not an option to slap something together and go into the courtroom and nail the case. You have to be thoughtful and careful.”

Using all of this technology comes at a price: Uddeme said a two-minute 3-D animation can cost up to $6,000, while Mike Miller charges $125 an hour for trial preparation and $150 per hour for in-court work.

Mike Miller tailors his involvement and presentations to his clients. Some want only to rent his equipment, while others want him in court for the duration of a trial.

One thing he will not do, however, is allow the technology to overshadow his client.

“The lawyer is the star,” he said. “The technology backs up what he’s saying.”

Creatures Of Habit

As Slutkin put it, “Technology can’t replace substance.” Some lawyers, though, are concerned the technology might interrupt or negatively impact how they present their cases.

That was E. Philip Franke III’s worry when he first enlisted McManus’ help in a medical malpractice case several years ago.

“Lawyers are creatures of habit,” said Franke, a partner at Baxter, Baker, Sidle, Conn & Jones P.A. in Baltimore.

Franke was defending an orthopedist accused of misdiagnosing a patient’s shoulder ailment. A key piece of evidence was an overhead CT scan, which “for a lay person is not an easy way to understand” the injury and diagnosis, he said.

McManus, a self-described “visual learner” who used blown-up documents in prior jobs as litigation coordinator at DLA Piper and with the Maryland Board of Physicians, aims for a presentation that is simple and concise.

So, she and Franke imposed the CT scan on a human body. The composite image gave jurors context for the scan and allowed Franke to show what his client observed and why the treatment used was reasonable.

“It was a very effective way to show how the injury occurred,” said Franke, who ultimately won the case.

But Habits Change

As more lawyers, like Franke, become comfortable practicing law with technology, Mike Miller believes videotaping depositions will become standard, allowing jurors to see nonverbal cues not apparent in a transcript. He has also seen the technology used in settlement conferences to prevent a case from going to trial.

Inside the courtroom, more work will be done electronically as more courtrooms become wired, Miller added.

“As courts become more accustomed to this, they will be more demanding of lawyers,” he said.

Both McManus and Dan Miller predicted interactive whiteboards, found now in many classrooms, will one day be common in courtrooms. Gorman predicted document management software will become standardized, allowing for easier transmittal. The technology might even find its way into jury deliberation rooms with enough planning and ground rules, he added.

While Gorman discusses the newest wrinkles in electronic discovery with his students at the University of Baltimore School of Law, where he is an adjunct professor, he also believes actual paper will never become fully obsolete in a courtroom.

“Most lawyers would still like to have the fundamental documents in a three-ring binder,” he said.

Yet as he teaches the next generation of lawyers, for whom the computer is practically another appendage, Gorman knows technology will continue gaining on traditional trial practices.

“When attorneys and judges look back 20 to 25 years from now, they’ll look at this as the duality period,” he said.