We typically focus mainly on the first four levels of the Electronic Discovery Reference Model. This is mainly due to civil cases reaching an agreement or defendants pleading guilty. But when parties can’t agree, it’s presentation time! Trial presentation is a unique art that most professionals in the litigation community only get to practice occasionally (often, the goal is not to go to trial). This is why lawyers and technologists with trial experience are valued more because it has become such a unique skill.

I’m Dean Athanasopoulos and I’ve been a Litigation Support Specialist for 19 years, exclusively for the Department of Justice (DOJ)’s Offices of the United States Attorneys (USAO). I’ve spent 15 years of my career prepping and hot seating trials. I have worked on hundreds of trials, ranging from violent crimes to healthcare fraud and public corruption. Over this three-part series on trial presentation, I will discuss what I’ve learned about presenting evidence at trial and other trial presentation tips for success.

Project Management

Project management is the most essential skill for trial prep. You should game plan for the trial at least two weeks out. You need to know how voluminous your exhibit list will be, so you know what to prioritize and delegate. Doing everything at the last-minute leads to low quality and mistakes. That not only turns off a jury but can anger a judge.

If you are not the attorney, get to know the case and what your side wants to prove. This will help you create exhibits and help the attorney present their argument.

Synced Transcripts

If you must do transcript syncing, let the attorney know it is done in real-time. If an interview is one hour long, it takes 1.5 hours to complete the exhibit if you add in the prep and QCing. Regarding transcripts, I recommend only syncing with videos or poor audio. Consider passing out a transcript if you have clean audio with no video. The benefits are that jurors can reread something they miss during audio breaks. Sometimes, it’s hard to follow along with a scrolling transcript. Think about dubbed movies you’ve watched; don’t you miss a part of the text sometimes?

Posterboards

Over the years, I’ve seen fewer posterboards used in court. Most people post their demonstratives on big screens. Using a screen is cost-effective; you can change your demonstrative on the fly. However, there is still a place for posterboards in a trial.

If you are proving a type of fraud, your posterboard can be the summary exhibit, and on the screen, you can display the exhibits supporting it. For example, a posterboard chart showing total fraud and financial transactions (checks or credit card statements) on the screen. That way, the jury can confirm what the summary shows.

Another good reason to use a posterboard is to mark it as an exhibit. That way, when it goes back into the jury room, you will have a giant exhibit everyone can see simultaneously. It can also bring more attention and thus be easily noticed compared to a demonstrative printed on 8×11.

Media – sub clips vs full

Consider making sub-exhibit clips if you have long audio/video exhibits. If exhibit 10 is the full interview, make 10-1 a sub-exhibit. The sub-exhibit would be the most essential part of the media that proves your case. You don’t have to try to seek it out during the trial, thus making your argument crisper. It can quickly be used for cross-examination and closing arguments. Playing an entire video could bore the jury. Also, you don’t want to create distance in the points you are trying to make.

Of course, opposing counsel could challenge your clips and ask to play the whole thing; that’s why the entire video is the main exhibit. However, many attorneys may not do this because it could waste the court’s time and displease the jury if nothing of substance was added by playing the entire video.

PowerPoint

PowerPoint is an excellent trial tool and offers many features to get your point across. However, PowerPoints are sequential slides, whereas something like Trial Director can let you freestyle. I recommend using PowerPoint in expert witness testimony or closing arguments.

One useful capability I like to use with PowerPoint is the ability to make animations. I often use it in bank robberies to show where the “get-a-way” car went. Look into the animation tool and mix it with Google Maps. You will have something that can help the jury understand your point.

Another great way I use PowerPoint is something I call the “wheel of guilt”. I put the defendant’s name or photo on the middle of the slide. Next, I have an exhibit pop up pointing at the center with an arrow. I continue to circle around the center. So, the argument is that no matter how you turn the wheel all the evidence points to the defendant. This is a simple way to summarize all the exhibits and spoon-feed the logic you are trying to prove.

This is part 1 of a three-part series on trial presentation. Look for part 2 on Wednesday!

Image created using GPT-4’s Image Creator Powered by DALL-E, using the term “robot coordinating a visual demonstration in court”.

Disclaimer: The views represented herein are exclusively the views of the author, and do not necessarily represent the views held by my employer, my partners or my clients. eDiscovery Today is made available solely for educational purposes to provide general information about general eDiscovery principles and not to provide specific legal advice applicable to any particular circumstance. eDiscovery Today should not be used as a substitute for competent legal advice from a lawyer you have retained and who has agreed to represent you.