In the trial of a birth injury case last year, we used trial presentation software (TPS) for the first time. We will never try a significant, complicated case again without it. Our job as lawyers is to persuade the jury of the merits of our client’s claims. We want jurors when they deliberate to recall as much as possible of the evidence and arguments we advance. As reflected by the chart below, people are more likely to retain information that is communicated visually as well as verbally as opposed to verbally alone.

Indeed, you the reader will probably recall this chart long after you have forgotten these scribblings. TPS allows counsel to exploit this aspect of human memory through the facile presentation of electronic images during all phases of the trial: opening, direct and cross examinations, and closing.

TPS is straightforward. Documentary evidence (medical records, medical texts, photographs, letters, emails, curriculum vitae, etc.) is scanned and then image copies are saved and cataloged in files created by the software on a laptop. In the courtroom, the laptop is connected to a projector, which displays the images on a screen. Depending on the arrangements in a given case, video monitors linked to the laptop may be provided to the court and opposing counsel. Then, as counsel is speaking to a witness about a document, an assistant calls up its image so that the jury sees it on the screen the moment it is discussed. There is no fumbling through notebooks or waiting for the witness to find the right page. The trial is focused and efficient and the jury is engaged

The most useful feature of TPS is its ability to magnify instantly any portion of a document. Trials turn on specific document passages: provisions in contracts; lines in emails; entries in medical records. By calling up a document in TPS and then dragging the mouse cursor over a portion of it, counsel can make the area selected fill the entire screen, in effect, creating an instant blowup of the document fragment. In our trial, we enlarged relevant portions of each medical record as it was being discussed, a capability of great value when reviewing hard-to-read handwritten medical entries.

Counsel often create "chalks" during trial to highlight key testimony. When that testimony can be anticipated, particularly when it is one’s own witness on the stand, chalks can be created in advance as word-processing documents and then scanned into TPS. In our trial, we created chalks to highlight the critical features of the reports of our neuropsychology and life-care planning experts. Because no single page of their reports can be magnified to summarize their testimony, we found this was an easy and effective way to present visually our witnesses’ key opinions while they testified to them on the stand. Unlike some handwritten chalks, these were legible and understandable. We were then able to recall the images during the closing to reinforce this testimony as we argued for damages.

For openings and closings, TPS can present a montage of the evidence, calling before the jury images of each key document as counsel touches on it. Documents prepared by counsel summarizing the evidence can be inserted so that the entire presentation has visual reinforcement.

The use of TPS to impeach witnesses on cross-examination poses the only risk for mischief and mistrial. Impeachment exhibits usually are not listed on pretrial statements and can in any trial come as a surprise. If your expert is impeached with a TPS-broadcast photograph of him in handcuffs in an orange jumpsuit, the jury will not forget it and the damage may be impossible to undo even if valid grounds existed to exclude the evidence. In our trial, each side freely impeached the other’s experts with peer-reviewed medical literature and prior deposition testimony without the formality of showing it first to opposing counsel. The arrangement worked well, but was limited by its nature to the impeachment of the scientific foundation of expert opinions, not the experts’ ethics. Trial counsel and the court should discuss the handling of impeachment evidence at the trial management conference so that trial-ending disasters from over-aggressive TPS impeachment tactics can be averted.

There are two leading brands of TPS: Sanction and TrialDirector. In our trial, we ran Sanction and opposing counsel ran TrialDirector. Both appear to have the same capabilities. We were very pleased with the customer support of Sanction.

Ralph F. Holmes, of the law firm of McLane, Graf, Raulerson & Middleton in Manchester, regularly writes "Tort Shorts," covering developments in personal injury litigation issues. He can be reached at ralph.holmes@mclane.com.

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