You’ve built your evidentiary PowerPoint. It’s ready to take to court. It’s chock full of interesting and persuasive images, maps, diagrams documents etc. needed to prove your case. What’s next?

Previous columns covered the basics of creating an evidentiary PowerPoint (PPT). In this column I’ll begin to cover considerations for using a PPT in court.

The PowerPoint as an Exhibit

A crucial first step is to decide is how the PowerPoint will be filed as an exhibit.

Like any object or photo used in court the PowerPoint (PPT), once referred to by a witness or displayed in court, must be entered into evidence in order to preserve the record. The simplest way is to have the PowerPoint on a CD/DVD and have the disc and its case marked as an exhibit. USB flash drives, also referred to as memory sticks, may also be used.

In either case the PowerPoint must be “locked down” so that it cannot be altered after it is entered into the court record. You don’t want anyone (for example a juror during deliberations) who is reviewing the disc to inadvertently delete or change the files – this could potentially cause an embarrassing mistrial.

Generally it is easier, cheaper and safer to put your PPT onto a disc. Write-once discs cannot be altered or changed. If you are using rewritable discs however you need to make sure the files placed on them are secure. Software applications used to burn the disc generally will prompt you to consider whether you want the disc to be secure or open to being rewritten. For instance in our office we use Roxio to burn discs. As part of the burning process the Roxio application prompts the user to consider making the disc ‘write-once’, thus preserving its content (see below).

If you choose to use USB flash drive you must ensure that the read-only security function for the PPT is switched on. This will prevent changes when it’s handled in court. To activate ‘read-only’ protection simply locate the saved PPT in Windows Explorer, then highlight it and right click. This will bring up a menu – choose “Properties”. Under the “General” tab of “Properties” (see below) you’ll see “Attributes” click “Read-only” and “Apply” to lock down the PPT.

I much prefer discs – they are cheaper and more secure. While memory sticks are coming down in price they are still very expensive compared to discs.

Once the PPT disc is filed as an exhibit it is my practice is to provide a copy of the disc to the court and to opposing counsel. A small courtesy which assists the court when preparing a judgement or a charge to the jury.

Hardcopies

Give consideration to also filing a hardcopy of the PPT along with the disc and case or flash drive. While the use of paper may not amuse environmentalist it will assist the trier of fact, especially jurors. The evidence is generally easier to follow and more memorable if the trier of fact has a hard copy and can make notes right onto it. For instance a juror may want to mark a photo that a witness has referred to.

For a jury trial I usually prepare 6 hardcopies for 12 jurors. This saves paper and requires jurors to share. In my opinion there is real advantage to the 2:1 ratio – it helps jurors stay on the ‘right page’ during testimony when the PPT is being displayed. If one juror has the wrong page the juror sharing the hardcopy will point it out. That way jurors stay engaged and focussed at the same time as building camaraderie based on sharing resources.

I’ve noticed another advantage of hardcopies. Jurors frequently like to keep occupied during long labourious cross examinations by opposing counsel, when boredom strikes jurors sometimes prefer to leaf through their hardcopies– a nice way to pass the time!

Advance Notice

It is a wise idea to inform the court and opposing counsel about the technology you intend to use in advance. While most judges and counsel have easy access to laptop they don’t always bring them to court. In my experience when informed of the planned use of discs most judges and counsel will bring their laptops.

By giving advance notice it also allows the other side to consider pre-trial objections. In my experience I have yet to see anyone object to a PPT as a method of evidence presentation. Use of a PPT closing may bring objections however – more about that on another occasion.

Advance notice will allow coordination of technology. But advance notice does not always prompt awareness – in a recent case where I provided lots of advance notice of my use of a PPT, opposing counsel, who was a Mac guy, failed to consider Mac compatibility. The oversight delayed the start of court – something that would put most judges in the ‘wrong’ mood.

Beware and plan ahead.

Digital Evidence in Criminal Law is hot off the presses — the first in Canada to deal with digital evidence in a criminal law context. The book is so recent that I had to review a digital copy — rather fitting under the circumstances.

Released in late April 2011 it is destined to become the bible of digital evidence for criminal law litigators. Civil lawyers will also find it helpful reading even in their watered-down-rules-of-evidence world.

A wee caveat before I launch into the review: author Dan Scanlan has been my colleague in the Victoria Crown Counsel Office for the last year. But that has not dulled my enthusiasm for the book!

Dan wealth of practical and policy experience in the digital world is reflected in the book. Before joining the Victoria prosecutor’s office Dan was in charge of all things high-tech at BC’s Criminal Justice Headquarters. He advised police and Crown Counsel throughout BC on electronic evidence and disclosure. He headed up the introduction of the Ringtail data base software used in BC’s mega-cases, of which there have been many. He’s lectured many times on digital evidence to lawyers and police in BC and Ontario. He has hands on experience with electronic evidence as a trial lawyer too. In short Dan is a walking encyclopaedia of digital evidence which he has masterfully crammed into a mere 330 pages.

To augment his years of practical experience Dan pursued a Computer Based Information Systems certificate at the University of Victoria. All this has given Dan the practical, legal and technological insights that make this a terrific book.

It took Dan over a year and a half to marshal the material and write Digital Evidence. While not the kind of text you curl up with in front of a cosy fire it is an excellent source of information for the busy criminal lawyer preparing a technology-rich trial, which in this day and age means virtually every major case. Over the last few years there has been a sea change in the way evidence is ferreted out by the police – the first place they often look is in an accused’s computer, Blackberry or Facebook pages.

The book sets out the technological knowledge that all criminal lawyers need to know – from hash (not the smoking variety) values to metadata, from Peer-to-Peer chat software to social networking ‘walls’ and bulletin boards and from digital forensics to computer experts. It even deals with Malware such as viruses, worms, and trojans (the electronic version of Greek guys inside a large wooden horse).

This book for the most part does not keep readers on the edge of their seats. Nor is there much of a build-up of excitement as the book works it way through what are pre-trial and trial essentials for criminal lawyers. The explanations and helpful illustrations Dan provides make the technology easy to understand for non-techies. For instance the first chapter deals with essential aspects of electronic evidence that will allow lawyers to transition from the traditional use of hardcopy evidence to documents and evidence in the digital age.

After the initial introduction to the basics of electronic evidence Dan structures the rest of the book more or less along the lines of the evolution of a criminal investigation and prosecution. Firstly he examines the collection of evidence by police and the unique issues that arise with electronic evidence, whether it is data or interception of Peer-to-Peer chats. Following evidence collection Dan explores the forensic analysis back at the police station and what experts can determine below the surface of the data. For example there’s a discussion on recovering deleted files that a suspect mistakenly thought were permanently wiped clean.

The chapter entitled “Types and Sources of Electronic Evidence” is an important building block for criminal lawyers to fully grasp the modern world of crime. The chapter provides a useful review of the vast array of electronic evidence that now pervades the criminal courts; digital images and videos, data bases, emails and internet derived evidence.

Despite Dan’s background as a prosecutor he has presented a balanced perspective which will make this text useful to both defence and Crown.

And for those that think digital evidence is mostly presented in child exploitation cases such as child porn, luring and the like, think again. Digital evidence is gathered in an increasing number of cases. In serious urban car accidents the police gather digital videos from stores near the scene, in drug cases police will examine a drug dealer’s mobile device and in murder cases an accused’s laptop can provide damning evidence. In a section on metadata (creation data undisplayed ‘behind’ a document) Dan gives an example of a murder suspect who was convicted of first degree murder based in part on the metadata of a note found on his computer. The metadata revealed when the document had been created which in turn pointed to the murder being planned and deliberate.

In the final chapter there is a very helpful section on selecting computer experts for your trial.

There is going to be one drawback to Dan’s work as a hard bound version as opposed to an ‘updateable’ loose leaf service: obsolescence.

Some sections of the book will be out of date quickly as technology and case law advances. For instance on May 5, 2011 the BC Court of Appeal released R. v. Ballendine, 2011 BCCA 221, that court’s first post-Morelli decision (2010 SCC 8, [2010] 1 S.C.R. 253). The BCCA opted for a common sense approach deciding that Morelli did not impose a more stringent threshold for reasonable and probable when it comes to computer searches.

There will also be unforeseen changes in the habits of the criminal-minded as they get wise to the risks of storing their ‘work’ on local devices and are moved to seek out other approaches such as cloud computing. Oh what a brave new world we live and compute in!

Digital Evidence in Criminal Law

By Daniel M. Scanlan
published by Canada Law Book

price: $109.00
ISBN: ISBN 978-0-88804-502-7

There should be a point to using a PowerPoint for evidence presentation.

Don’t just launch into using PowerPoint because it’s great fun and easy to use. Decide to use it only after reflecting on how it would enhance your case. Don’t just reach for technology for technology’s sake. 

There will be times when a simple story told by a witness unadorned by technology is better. Think of a lawsuit based on a person recounting the story of being sexually abused as a child. Courtroom technology in such a case could distract and may even be perceived as trivializing the emotion of the testimony.

On the other hand picture a personal injury lawsuit where the road design is being blamed for the accident and the resulting life-changing injuries. Such a case would lend itself perfectly to a PowerPoint. A judicious choice of images could illustrate the road defects much better than a talking-head engineer recounting deficiencies. The effect of the injuries could be persuasively brought home with real-life before and after photos. Images could show a robust plaintiff before the accident contrasted with a wheelchair-bound plaintiff after the accident. Such illustrations are a powerful and memorable way to show the need for compensatory damages.

Once you’ve decided your case will be improved with the use of PowerPoint the next step is to consider the themes of your litigation story. This is a necessary step which will lead to a more efficiently focussed selection of images to illustrate each theme.

Here’s a step by step approach to building a PowerPoint to present your evidence. This should of course follow the essential steps of obtaining a retainer, determining there’s a remedy to justify the retainer and setting the matter for trial.

Step One: e-Gathering

Marshall images, diagrams, maps etc. in electronic format. Photos should be in a format such as JPEG. I’ve found that formats such as TIFF can be unnecessarily large causing your PowerPoint to run slowly. 

Adobe PDF formats also work. There is a snapshot feature in Adobe that allows you in effect to cut and paste from Adobe into PowerPoint.

Step Two: Rough Cutting

In bygone days of negatives, photo albums and blow-ups on easels the number of available images was conveniently small. The advent of digital cameras has meant an exponential growth of available photographs. When I first started prosecuting, police might bring in a roll or two of film. Now they bring in hundreds and hundreds of digital images. “Why not,” they shrug, “it’s just as cheap to snap and burn 24 photos as it is for 240”.

Before you populate your PowerPoint with images do a once through rough-cut eliminating the bad and irrelevant ones.

My motto for image selection: ‘If in doubt leave it out’.

Refining your selections should be done at Step Four when you edit and sequence.

Step Three: Assembling the PowerPoint

In a previous column I introduced a few basic ways for inserting images into a PowerPoint for evidence presentation. I showed three simple ways for getting photos, diagrams, maps etc. into a PowerPoint by either inserting them one at a time or doing it in one go using either Microsoft Office Picture Manager or the PowerPoint Photo Album Feature.

Generally there should be one image per slide. But you should consider putting multiple images on one slide where different angles of the same object are helpful or a comparison is needed. For instance before and after photos of a plaintiff could be placed on the same slide. 

Step Four: Editing and Sequencing the Images

This step is where your creative side should come to the fore. Therefore at this juncture it’s best to stop thinking like a lawyer and allow yourself to think like a story teller. Imagine yourself at the pub telling friends about your case, making sure you only tell them the important bits in the right sequence.

At Step Four that is what you’ll be doing: making sure your PowerPoint only has important bits in the right sequence. PowerPoint makes this easy with its “Slide Sorter” feature which is found under “View”. “Slide Sorter” looks like this:

Click on image to enlarge.

This view allows you to see all the slides at a glance. 

You can now step back and consider each one in turn and consider how it adds to the unfolding of the narrative. If you can’t articulate a reason for a particular slide, out it goes. 

Having decided which ones are essential you must now determine a sequence that best matches the story line or narrative of your case.

Changing the order of slides in ‘Slider Sorter’ is just a matter of grabbing the slide and dragging it to another spot in the sequence.

In choosing a sequence consider two factors.

One factor is the order they will be shown to a witness. 

The second and more important factor is to choose a sequence that makes it easy for a trier of fact to follow. In other words some logical and self-evident pattern that allows the trier of fact to reconstruct your case by looking at the images. Since you won’t be with the trier of fact during deliberations the images should speak for themselves, simply and logically.

Try to envision the trier of fact, all alone, about to open the evidence PPT, asking rhetorically “let’s just see how the images relate to the issues I heard counsel blather on about”? If, standing on its own, your PowerPoint answers this question you will have succeeded.

Facebook, like bad weather, is everywhere. Nothing new there. What is new is how it’s appearing in the legal system. When Facebook is used as a tool for revenge it may lead to litigation. It can become a sword to undermine an opponent. It can even be a force for good for police and courts.

In a racy case being played out in the Federal Court in Melbourne, Australia Facebook was used as a sword to inflict pain that led to a high profile lawsuit. Then in the same case Facebook was used by the court to summons the inflictor to appear.

In Paris police have recently invited witnesses to provide information on police Facebook pages to help solve hit-and-run cases in the notoriously crash-prone city.

In the British Columbia Supreme Court plaintiffs are being confronted with photos and videos they posted on Facebook. Defendants are producing Facebook images that depict a healthy, happy, hearty plaintiff quite different from the very same plaintiff claiming pain and suffering ruined their life.

The Melbourne case caught my eye. Indeed it caught virtually every eye in Australia. It had all the ingredients befitting a Rupert Murdock news story, a handsome leading man, a scorned woman and plenty of nude photos. However what really drew my attention was the role played by Facebook. It was the medium of choice for a scorned 17 year old girl. In a fit of pique she used her Facebook page to post a photo of a nude and very well known football (known as “footie” down under) star.

The photo of the star was taken by his friend. Exactly how the photos passed from the friend to the 17 year is the subject of some dispute and possibly a police investigation. Regardless of how the 17 year old got a hold of the photo, she posted it on her Facebook page. That brought an immediate response from the footie club. They launched an action for injunctive relief in the Australian Federal Court. The club wanted the photo taken down and an injunction to prevent further postings and to deliver up any other photos she had.

The court issued an interim injunction in absentia. She apparently became aware of the proceedings for she defiantly threatened on Facebook that she was ready to post more nude photos as a reprisal for the lawsuit.

The plaintiff club wanted her before the court immediately but personal service was not possible as she’d left town. In the meantime concerns grew about more Facebook postings.

To solve the problem of finding the girl the court turned to Facebook. The evidence showed the girl was accessing Facebook frequently judging by her constant postings. Australian Federal Court Justice Marshall ordered substitutional service be made to her Facebook page. That worked. The girl appeared a few days later as ordered.

She used Facebook page as tool to inflict pain, the court responded by using Facebook as a pain reliever. When served via Facebook she appeared. As a footienote, she went beyond the call of duty by also appearing at the star’s footie practice with her paparazzi entourage.

Seeing this drama unfold in Australia made me wonder what impact Facebook was having on British Columbia courts, in particular I was interested to see if Facebook had come up in British Columbia Supreme Court cases.

To my surprise Facebook had been referred to in 37 reported cases on the BCSC website. The first instance was in January 2008. In that year there were five references to Facebook. In 2009 that more than doubled to 11. In 2010 it nearly doubled again to 21.

The 2010 cases reveal a growing trend. Facebook can be a basis of court applications, a place to mine material for cross-examination and a great source of embarrassment to litigants.

In a number of the cases Facebook was used to gather ammunition to cross-examine the plaintiff in personal injury motor vehicle accidents. Three cases stood out.

Case 1: the plaintiff claimed his injuries impaired relations with his kids. He was then confronted with his Facebook photos showing him frolicking happily through a pumpkin patch with the kids. No sign of pain in that pumpkin patch. 

In case 2 the plaintiff had posted smiling photos of herself enjoying social occasions, participating in a 10 km. charity run and to top it off snowboarding in Whistler. While the judge found “even unhappy people smile when photographed” the Facebook photos did confirm that her enjoyment of life was not completely curtailed by the injuries. 

And in the third case the plaintiff was confronted with a Facebook video showing him flaunting his athletic prowess in the pool where he performed a daring manoeuvre that even his fully able-bodied and uninjured friend couldn’t do. 

In 2010 Facebook also came up in several family law cases. One litigant was found to have used Facebook to malign and embarrass his spouse. In another case a mother applying for custody pointed to Facebook photos of the father involved with marijuana. The father had been portraying himself as a responsible parent living a clean lifestyle to support his claim to custody. While the judge didn’t deny custody there was an order imposed that “the father shall not use drugs in the presence of the child”.

Facebook is a double edged sword. On the one hand it can land you at the wrong end of a lawsuit or it can undermine a client’s credibility. On the other it may lead to an unexpected benefit, a sword with which to skewer your opponent.

What can be learned from all of this? 

Potential litigants should only post things on Facebook that would make their mom proud. The lesson for counsel: check your client’s Facebook pages for embarrassing evidence.

In my previous columns I’ve argued that lawyers who close their eyes to the use of courtroom technology may be negligent, I’ve encouraged lawyers to try courtroom technology and I’ve tried to sell the idea of using PowerPoint with little or no text. With me so far?

For the next few columns I’ll illustrate a few basics for assembling a PowerPoint for evidence presentation.

Persuasive litigation in my mind should have a strong visual component. Talking head witnesses are so 1970’s. The 2010’s call for visual engagement of the trier of fact, whether judge or jury.

That visual engagement is an integral part of modern times is evident in the rapid growth of smart phones. Why smart phones? The visual and interactive nature of these devices is appealing, the technology easy to use, and they’re fun. They’ve become part of everyday life for many.

The other day I ran into a newly minted grandmother. She gushed on about how beautiful her new grandson was. Really? Yawn. Then she pulled out her iPhone, perhaps in response to my yawn. “Here,” she said, “look for yourself”. With that I was witness to photos, videos and cooing sounds (from the grandmother). This was my first encounter with instant show and tell from a grandparent. I confess the kid lived up to grandma’s claims. When presented with the iPhone proof my scepticism melted away. For me, seeing was believing.

The iPhone grandmother was persuasive using visuals and simple technology. The courtroom lawyer can be too.

The lawyer will simply require a larger canvas for the visuals and some easy to use display technology.
It’s not rocket science. It’s more like cooking. Just follow a simple recipe.

Ingredients

Basic Preparation

Take the visual evidence -photos, maps and diagrams – and combine them in one file on the computer. They should be in JPEG or similar format. They can be cropped, chopped or sliced later if necessary. While the photos etc. don't have to be in one file it makes things go quicker when you go to insert them into your PowerPoint evidence presentation.

On the computer open the PowerPoint application. PowerPoint 2007 looks like this when first opening a new presentation:

Click on image to enlarge

PowerPoint 2007 tools are grouped in Tabs on the top banner, starting with “Home”, “Insert”, “Design” etc. reading left to right.

Different slide layouts are found under the “New Slide” pull down menu on the “Home” tab. The new slide menu is also where you’ll find a “Reuse Slide” option that allows you to use slides from previous presentations. Electronic recycling is to be encouraged.

For a slide layout with a title and space for an image choose this as your basic slide:

Click on image to enlarge.

Thus ends the basic preparation. Now it’s time to really cook!

Inserting Images

Having written a good short story and gathered images and diagrams that illustrate the core elements of your litigation its now time to insert the images into the PowerPoint presentation you have open.
This can be done simply using one of three methods:

1. Inserting one at a time.

Click on the “Insert Picture” icon – the bottom left of the group of six in the middle of the slide above.
You can also go to the “Insert” tab on the top banner . There select “Picture” and look for the file where you combined your images.

If you have only a few images either of these methods is fine. If you have lots of images this method is the ‘bad method’ akin to running at the coal face as described by the miner who “never had the Latin for the judging” in Beyond the Fringe. For lots of images use method 2 or 3 below.

2. Microsoft Officer Picture Manager

This application allows you to select groups of images out of a file (the one you created to combine the photos etc.) and at the press of a button to send the selected images to your open PowerPoint presentation.

Open Picture Manager and go to “Add Picture Shortcut” in the top left hand corner. Find the file with the photos. Click on the file and the photos are displayed. You can select some or all. Once you’ve selected the ones you want, go to “File” and select “Send To” and choose the “Microsoft Office”. You are presented with options – choose “Insert into an open file” and you’ll see your open PowerPoint file listed. Then hit send. The photos are magically inserted. If you have a lot of images you may have to wait awhile for them all to be sent.

3. Photo Album Feature

PowerPoint 2007 has a handy feature to create a photo album which can be used to as your evidence presentation. The feature allows you select and then insert images into a PowerPoint presentation in one go. It will create a first slide with a photo album name which you can either delete or rename to match your style of cause and content, for instance Smith v. Jones, Crash Scene Photographs and Diagrams.

To create the Album go to the “Insert” tab on the top banner and choose “Photo Album”. On the pull down menu choose “New Photo Album”. A “Photo Album” dialog box will appear with numerous options.

Start by finding the file where you’ve combined your visual evidence. You do so by hitting “File/Disk” and locating the file.

Once located, choose the images you want. You can rearrange their order once they are loaded onto the “Photo Album” dialog box. Once the images had been selected and arranged there are numerous options for inserting them into the PowerPoint presentation.

For instance in “Album Layout” > “Picture Layout” menu you can choose from one, two or four photos per slide.

The Photo Album dialog box also permits a caption to be added. By default the caption will be the file name assigned to each individual photo. The “Picture Layout” drop down menu allows a title text box to be used either as an alternative to a caption or in addition to it.

Multiple Images per Slide

For evidence presentation it’s usually best to have one photo per slide. When the slide is displayed in court the single image typically should be the only focus without competing distractions.

On the other hand there may be circumstances when multiple images on the same slide can be useful, for instance showing different angles of the same scene. Multi-images are also good for showing an enlarged area or making a comparison as illustrated below.

Click on image to enlarge.

Click on image to enlarge.

Backgrounds

Once the photos or diagrams are in your presentation you should consider an appropriate background colour or texture.

I recommend a texture-free, solid colour that will make the image stand out. If the images are to be displayed in court using a projector and screen a darker background is preferable. This is easier on the eyes in a well lighted environment. If you use large monitors a dark coloured background is not as necessary.

In either scenario do not use a distracting background colour or textures. The slides below give you an idea of good, bad and distracting backgrounds. You spot which is which.

More next time…

To PPT, or Not to PPT (In Court), that is the question:

After my last column Lloyd Duhaime, a renowned Victoria lawyer and humourist (read his book Hear! Hear!) wrote to say how disappointed he was when he used PowerPoint (PPT) in court. The disappointment came when the judge raced (as in read) ahead in his PowerPoint thus missing Lloyd’s no doubt persuasive submissions.

This highlights the downside of PowerPoint: it is not a good medium to carry a text message.

Well to all the Lloyds’ out there, here’s how you can use PowerPoint successfully: CUT THE TEXT!

Use PowerPoint to carry a visual message. PPT presentations are complete duds when the slides contain the text the speaker is reading. It is simply an ineffective and counterproductive way to use the application. The results can reach beyond boring, they can be disastrous.

The worst example of the misuse of PowerPoint is discussed by Yale University Professor Edward R. Tufte in his September 2003 work The Cognitive Style of PowerPoint published by Graphics Press LLC. Professor Tufte analyzes how misuse of PowerPoint contributed to the NASA Columbia Shuttle tragedy when it disintegrated on re-entry February 1, 2003. In his analysis Tufte reviews how Boeing engineers used PowerPoint to communicate their assessment of the wing damage sustained on lift-off. The Boeing PowerPoint presentations were directed to NASA officials making key decisions. Tufte demonstrates how the use of the typical hierarchy of bullets points and compacted text in three critical PPTs created a barrier to a proper assessment of the real danger. Bullets outlines he concludes “failed to bring clarity, focus, or credibility to the presentations”. He goes on to say simply “PowerPoint will not do for serious presentations”.

So how should a PPT be used in court, where it’s all about serious presentations?

PowerPoint is a superbly useful trial tool for openings and powerfully persuasive for closing. But only when the words come from the barrister and visuals come from the PPT. 

As an aside PowerPoint is also a useful tool to present evidence. Loading your digital images (previously known as photographs), maps, diagrams and embedded video files into PPT allows the evidence to be presented seamlessly with a projector onto a large screen or through a series of monitors. Having evidence in digital format in the PPT then allows the evidence to be incorporated easily into the opening and closing. Just cut and paste and you’re in business.

To be crystal clear, a good PPT on opening and closing definitely should NOT look like the over 99% of PowerPoints out there. We’ve all seen them – the text fills the screen in a cascade of cute bullets with diminishing text size that make you feel like you’ve just had an eye examination.

A good courtroom PowerPoint has but the tiniest bit of text and loads of visuals. The presenter supplies the text, orally.

For openings or closings, text on the slide should take the form of headlines or signposts or topic headings. Anything more and the text becomes a distraction and a barrier to effective communications. The distraction is akin being at a cocktail party and trying to listen to the person speaking in front of you while trying to eavesdrop on the conversation behind you. You end up doing both poorly. You can’t accurately recall and recount the particularly delicious parts of the conversations. You’ll only get it half right or worse, half wrong.

Having a jury or judge read text on a slide while you are talking at the same time divides their attention. They will half listen to you and half read the text. But those two halves will not make a whole. If anything they’ll misunderstand both.

On the other hand enhancing a barrister’s orations with visuals will not only solidify what is being said but it will also improve retention. Recall the words of Confucius, “I hear and I forget, I see and I remember”. The TV ad industry has been dining off this wisdom ever since the test pattern was invented. 

Here’s a little more wisdom: Don’t rush to use a PowerPoint in every case (like I’m regularly accused of!). Consider that the strength of your case lies in a coherent persuasive story line. If that story line can be improved by using visuals then PowerPoint is for you. On the other hand if visuals will get in the way or remove the emotional force of the story then rely on traditional advocacy. Don’t try to fit a square peg into a round hole.

There are some, thankfully few, cases that do not lend themselves to a rousingly good PowerPoint. I’ve met only a few myself. Being a prosecutor the ‘don’t use PPT’ cases are ones with only a few witnesses that turn on a simple single event that is as easily described in words as it is in visuals.

But for the vast majority of cases in the trial courts visuals will enhance interest, retention and persuasiveness and thus a PowerPoint is in order. It is a simple tool to use that is wildly effective when properly employed.

Use PowerPoint where appropriate. Your audience will thank you.

For an answer to the first question: To PPT or not to PPT in court, I turn to Lord Tennyson (with apologies): 

‘tis better to have PowerPointed and lost
Than never have PowerPointed at all.

Your first high tech trial need not be an ordeal. With a little will power, ingenuity and preparation you can successfully launch your litigation into the late 20^th century.

Start with a little mental preparation. Tell yourself (repeatedly if it helps) the one universal truth about courtroom technology: IT IS NOT ROCKET SCIENCE. If your confidence needs a further boost reflect on how well you mastered other first encounters with technology: riding a bike, driving a car, resetting the clock on your VCR. If you succeeded in at least one of these struggles you are ready for courtroom technology. 

Next gather the simple tools needed for your first ordeal – oops, I mean trial.

1. Laptop
2. Projector and screen or monitors
3. Document camera
4. Cables to connect the above
5. Extension cords 
6. Presentation software

Connect the hardware and you’ve got yourself an instant do-it-yourself high tech courtroom.

Load what you want to show to the court into the presentation software and you’re ready to go.

That’s all there is to it. Repeat: IT IS NOT ROCKET SCIENCE.

With the hardware and software connected and working together you can use the technology to display exhibits such as photographs, maps, diagrams and demonstrative animations. The only limit is your imagination and the law of evidence.

The courtroom technology is especially effective in creating persuasive opening or closing arguments. The electronic evidence you loaded into the software can be easily cut and pasted into an effective and seamless story for the trier of fact.

Now you are ready to go here are five tips for first timers.

Tip 1 Choose the right case

Your first foray should be small. Look for a case with just a few exhibits that lend themselves to display using the technology. Don’t force the use of technology. Sometimes a large hardcopy map that is on constant display during the whole trial is more effective that showing it from your laptop. Make sure the technology will assist your case not detract from it.

Tip 2 Choose a simple a presentation software

I recommend Microsoft PowerPoint for first timers. The software is universally available. This is important because the court and the other side will at some point need to view the presentation that you file as exhibit. PowerPoint comes as part of the Microsoft Office package which all courts and counsel should have. For Mac lovers there is even a MS PowerPoint for Mac.

PowerPoint is very user friendly. While there are other very good software programs available in my experience PowerPoint is the simplest to use and most readily available. 

Tip 3 Scope out your courtroom

Well before the trial scope out the courtroom.

If you are lucky enough to have one of the very rare purpose-built high tech courtrooms the only thing you’ll be looking for is where to plug in your laptop and how to turn on the display units which in most instances will be multiple monitors.

However the vast majority of Canadian courtrooms are ‘no-tech’ that you’ll have to retrofit. For those courtrooms your first decision will be how to display your electronic evidence or submissions. The choices are projector and screen or multiple monitors. Many courtrooms have awkward layouts which do not lend themselves to a single screen that everyone can see in which case monitors are the only alternative. Whatever your choice the goal is to make sure all concerned can see the display.

Wherever possible my preference, especially for a jury trial, is a projector and screen. The screen creates a central focal point for everyone. Monitors, unless very large, often don’t allow for sufficient detail.

Other things to look for when scoping out the courtroom include locating the electrical outlets, figuring out how to reduce trip hazards from the myriad cords and cables, and where to place the document camera if you’re using one. 

At this stage thought should also be given to who will operate the technology. In mega trials with lots of electronic exhibits it pays to have a separate operator. For the vast majority of cases however, counsel with a little practice should easily be able to operate the equipment themselves.

Tip 4 Document camera

Set up a document camera if your case has small objects or hardcopies of documents or photographs that must be shown to the trier of fact.

Document cameras are merely new-fangled overhead projectors without the clear plastic flimsies. The unit consists of a video camera which is mounted on an arm and focused on a small bed below. The camera captures the image of the document or object on the bed. The captured image is then displayed on the screen or monitor.

Because it has the ability to magnify, the devise is very useful to display small objects. It can also be used to display and magnify hardcopies of documents and photographs.

Tip 5 Test and Practice

It is prudent to set up the equipment in the courtroom in advance and test it completely. While an office run-through is good it is no substitute for testing the set-up in the courtroom. The court’s setting, lighting or layout often hide unexpected surprises.

Practice displaying the exhibit and moving from image to image. If you are using a PowerPoint to open or close practice with a slide advancer so you don’t need to walk over to your computer every time you want to change slides.

It’s also a good idea to have a Plan B in case there is that very odd of occurrences: a glitch. There shouldn’t be any if you are fully prepared. However much like the old-fashioned trials that could be easily sidelined by a witness’ failure to attend counsel should have a back-up plan if the fuses all blow out or the projector bulb and the back-up bulb burn out.

Bonus Tip

From the wisdom of Douglas Adams’ Hitchhikers Guide to the Galaxy: DON’T PANIC

Is a technophobe litigator who fails to take advantage of courtroom technology negligent? Can a litigator’s failure to use courtroom technology amount to negligent breach of duty when the case fails?

Why not?

We expect professionals to be aware of, and use, the most modern of methods. We most certainly demand this of doctors.

Imagine an old heart surgeon refusing to use current technology, preferring to launch into open heart surgery the way it was done in the ‘old days’. The doctor might rationalize it this way, “well it was good enough to operate on hearts without modern technology in the ‘60s and hearts haven’t changed since then”. We all know what would happen when that operation is botched. The cry of negligence would ring in every paragraph of the statement of claim. What is more, the College of Doctors would investigate and castigate.

So why should it be different for a lawyer who spurns modern courtroom technology and loses the case?

The difference I suppose is proof. Where the doctor’s botching is almost self-evident, the lawyer’s botching is almost incapable of proof.

Since jury’s deliberations aren’t open to scrutiny we never know what drives them to make a decision. It is a complete mystery as to what tipped the balance to decide one way or the other.

While judge alone trials have the advantage of reasons for judgement, it is not really possible to read the subconscious mind. What in the presentation of the case really affected the judge? Would the use of courtroom technology have made the facts and argument more persuasive?

American lawyers are quickly coming to the conclusion that the use of courtroom technology to tell their side of the litigation tale can, and they believe does, tip the balance. In short many US attorneys believe that the better technology wins the day.

There is nothing directly scientific to support this belief. It appears to be based on experience and intuition.

While there may be no science behind these views they do make a lot of sense. 

Today’s juries (and judges) are drawn from a very modern society, very unlike the “Leave it to Beaver” 1960s. On any summonsed panel of jurors the vast majority will be carrying cell phones, many will be thumb typists with iPhones or Blackberries , and many will have been subjected to some form of PowerPoint abuse in their working lives. Virtually all jurors and judges will have a large sized flat screen at home which regularly displays the minutiae of the evidence presented on CSI-Wherever. In other words their lives are crammed with modern technology.

But when these same jurors walk into the courtroom they are transported back to the 1960s. They enter a no-tech place where they’ll be held captive for weeks, if not months. Most jurors dread being selected. The dread is only exacerbated by having to spend their time in a different century without the interest inherent in time travel, “Back to the Future” it is not.

So why do so many lawyers continue to rely on the old ways? Why do lawyers rationalize like the old heart surgeon, “well it was good enough to prove a case without courtroom technology in the ‘60s and the need for proof hasn’t changed”?

Is it fear? Is it added costs? Is it a misunderstanding of what juries or judges want?

Regardless of the reason, a lawyer who refuses to use modern technology is as negligent as the doctor who refuses to use modern technology. The only difference between the two when things go sideways? The lawyer needn’t be concerned about liability. No one will ever be able to prove that the case was lost because the lawyer refused to use courtroom technology.

NEXT TIME: Courtroom Technology for Technophobes.