68 June/July 2004 LAW OFFICE COMPUTING

LAW OFFICE COMPUTING June/July 2004 69

The Kansas City-based firm of Brya nC a ve isn’t afraid of putting its faith intechnology. Actually, the firm prefers toput both feet in the water and use soft-wa re and equipment from initial pre p a-ration to the end of the trial. It was nosurprise, then, when the firm put all itstech savvy to use in a case invo l v i n gWorld Wrestling Entertainment.

B r yan Cave re p resented WWE ina case against the manufacturer of ashackle that released pre m a t u rely andallegedly caused the death of wre s t l e rO wen Hart. The Lewmar triggerlatchshackle connecting his stunt harnessto a descent rope released as Hart wasbeing lowe red from a catwalk into the ring.

The lead attorney on the case, part-ner Craig O’Dear, noted it was impera-tive to educate the jury on the sequenceof events and to explain product engi-neering in detail. To complicate matters,several overseas witnesses could not bepresent to testify in the courtroom.

“I believe that what jurors want todo is to give each side a fair trial, andthey are working hard to understandyour case,” O’Dear said. “So, using tech-nology can help clarify what you are try-ing to explain. If you are on the jury andbeing shown a letter from across the

manipulating media storage files, sotimelines can be organized quickly.When the whole shebang is ready forcourt, Tr i a l D i rector synthesizes theinformation created in the pro g ra m ’ sother areas.

O’Dear’s team made extensive useof the softwa re to compare documents,magnify portions of the documents andp re p a re video clips so the jury could seethe testimony of witnesses who could

not physically appear before the court.Because so many witnesses we re nota vailable, the WWE case ended up withquite a bit of video testimony, whichp resented a challenge in terms of datas t o rage. To have all 90 GB of video onhand and at the ready, the firm con-nected an external Fire Wi re stora g edrive to a laptop.

To explain engineering details tothe jury, the firm used a digital docu-ment camera with an Elmo pre s e n t e r.Usually, a video camera is mounted onan Elmo stand and used to show photos,transparencies, illustrations and the like.With a digital camera in the mix,

room, and it’s not being explained prop-erly, you are going to be frustrated.”

To help jurors understand thenuances of the case, O’Dear’s team usedMicrosoft PowerPoint extensively to dis-play timelines showing the sequence ofe vents. The timelines we re created byin-house graphics personnel whoworked in conjunction with the trialteam. A shorter overview in PowerPointalso was created so O’Dear could show

g e n e ral points and larger issues duringhis opening statement.

During the trial, the team pro j e c t-ed key documents and photogra p h susing inData’s Tr i a l D i rector Suite trialp resentation softwa re. The applicationhas four main components: Tr i a l D i re c t o r ,D o c u m e n t D i rector, DepositionDire c t o rand Ti m e C o d e r. The document anddeposition areas allow firms to organizee l e c t ronic case exhibits, from scannedimages to deposition testimony clips.They also can incorporate elementssuch as Po we r Point files or Po r t a b l eDocument Format files created inAdobe Acrobat. TimeCoder is a tool for

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O’Dear’s team had more flexibility. Histeam could super-magnify images andstill rely on a crisp picture.

After three weeks of testimony, thecase was settled and Lewmar agreed topay $9 million. A poll of the juro r sfound they we re overwhelmingly enthu-siastic about Bryan Cave’s use of tech-nology because it helped themunderstand the evidence and gave thema better sense of witness testimony.

O’Dear noted the technology wa snot exactly cheap, but also said he iscontinually surprised more law firmsdon’t make the investment.

“The cost of doing it electronicallyisn’t a material item when you considerwhat is at stake,” he said. “Plus, thecomputer capability you need is notremarkable. Just some good-qualityscans done on a computer is the mini-mum. You have to rent jury monitorsand have someone come in and cablee verything, but in the context of, say, a $5 million case, it’s money very well spent.”

He added that in the WWE case,as well as in other cases he has pre-sented in a similar fashion, he offere dtechnology advice to the opposingcounsel and usually was re b u f f e d .G i ven how often he has heard juro r sremark that it was the technology thathelped motivate a decision for his side,he said he finds other firms’ failure toadopt technology amazing, but not par-ticularly surprising.

“I have ra rely run into any oppos-ing litigation team that was competentin the use of computers in the court-room,” O’Dear said. “I know lawyers areslow to innovate, but this is an are a

w h e re lawyers who jump inand innovate can gain a

competitive edge.”

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Although Po we r Point and other trialp re p a ration softwa re have been aro u n dfor a number of years, many tech-savvyattorneys report experiences similar toO’Dear’s. Often, there is a plethora oftechnology on one side of the court-room and practically nothing that needsto be plugged in on the other side. Infact, during one case, the judgea p p roached O’Dear’s team during alunch break. He was so impressed withthe way O’Dear was presenting the case,he asked O’Dear to demonstrate thetechnology to some fellow federa ljudges and a few local lawyers. “He wasabsolutely sold. He told us that this wasthe way to try cases from now on,”O’Dear said.

Technology can be especiallyimportant if a case involves difficult-to-explain technical details. Jacksonv i l l e ,Florida-based Spohrer Wilner Maxwell& Matthews found this to be true dur-ing an Army helicopter crash case thatwent to trial in 2000. Recently, thefirm won a $22 million ve rdict for theU.S. Army pilot and passengers of the Sikorsky Blackhawk helicopter that crashed.

Linda Whipple, the firm’s para l e-gal on the case, said she usedPo we r Point, as well as an LCD pro j e c t o r ,t wo laptop computers and a sound sys-tem to assist the jury in understandingthis very complicated case. The firmdetermined the helicopter had a hiddendefect that affected its balance andflight, which led to its spinning out ofc o n t rol. The UH - 60 Blackhawk heli-copter, installed with two external o u t b o a rd 230 gallon fuel tanks, experi-

enced a fuel flowinterruption in the right

o u t b o a rd tank. Unawa re ofthe fuel draining only from theleft tank, the crew attempted an

a p p roach to hover to set up forlanding. The pilot noted the air-c raft was right-side heavy andcontinued an uncommanded

right-side roll that caused the helicopterto crash and burn. Spohrer Wi l n e ra rgued that Sikorsky knew of this designdefect in the external fuel tank system,but failed to warn the Army.

The defendant didn’t use any tech-nology, Whipple said. The judge eve nreprimanded that team for failing to usea document camera. “They objected tous having all this technology becausethey said it gave us an unfair adva n-tage,” she noted. “But the judge didn’tbuy that argument.”

Whipple added that her firmbrought 10 boxes of documents to trial,four of which we re the defense’sexhibits, while the defense team hadsome 50 to 60. The sheer number ofboxes carted into the courtroom had aneffect on the jury, according to Whipple.“They looked intimidated, and we allknew it was a difficult case, so that didn’t help,” she said. “I think the jurya p p reciated the fact that we we re notgoing to burden them with having towade through boxes of documents.”

When the trial was over, Whipple’steam polled the jury and found the useof technology played a large part intheir decision. Through numero u sPo we r Point presentations, they we reable to understand the aerodynamics ofa helicopter and the cause of the cra s h .Technology gave them a better way toi n t e r p ret the information expert wit-nesses presented when describing thef a i l u re. Jurors also praised the use of al a rge screen for viewing digitally pre-sented documents. Whenever an exhib-it number was mentioned, the Spohre rWilner team could flip to it quickly andshow it on screen. Because documentsa p p e a red so quickly, the jurors becamefamiliar with key pieces of evidence.“Seeing the documents over and ove r

made them understand the case,”Whipple said.

Since that case, the firm expandedits use of technology to an even greaterd e g ree. Now Whipple said she is a fanof Sanction II software, a legal trial pre-sentation application by Ve rd i c tSystems, as well as other softwa re suchas Summation and Dataflight Software’s

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C o n c o rdance. The pro g rams allow anattorney to prepare documents for trial,s h a re information between computers,s e a rch multiple databases simultaneous-ly, and review depositions and tra n-scripts online, among other features.

During a medical malpractice suitb rought by Spohrer Wilner, Whipplesaid she noticed whenever her firm pre-sented evidence, jurors reached for theirnotebooks. After two weeks, the jurycame back with a ve rdict of $4.9 millionfor the firm. The other side used somedigital documents that Spohrer Wi l n e rp rovided, but one of the three defen-dants relied primarily on blown-up doc-uments mounted on boards. WhenWhipple saw how many boards thatone defendant actually brought in —m o re than 450 of them — she said shefelt sorry for the other firm’s para l e g a l .“We had some of the witnesses say theyfelt sorry for her,” Whipple said. “Thatis not a position you want to be in whentrying a case.”

J u rors might not need to feel sym-p a t hy for the paralegal in the future ;after the case was over, Whipplere c e i ved a call from her, asking whereshe could buy the software.

“Opposing counsel members some-times say, ‘Your firm scares us becausewe don’t know what you have , ’ ”Whipple said. “That is because theydon’t see how many boards we have .We only have a laptop and a scre e n .That is the beauty of trial pre p a ra t i o nsoftware like Sanction II.”

Although technology can be a powerfultool in the courtroom, sometimes it canwork to keep a case from going beforea jury at all. Recently, Salt Lake City-based Jones Waldo Holbrook &McDonough had a case dismissed, andfirm Information Technology dire c t o rDavid Clark credited technology to acertain degree for the outcome.

He noted that the firm usedSummation for drawings and photosrelating to the case, as well as to scanimages and organize information.Because opposing counsel didn’t havethat kind of fire p o wer, the technologymade a strong impression on the judge,w h o determined the case should be dis-missed. “The judge determined thisbased on facts, of course, but it was a loteasier for him to understand with theway we presented it,” Clark said.

the plaintiff’s attorney, the case invo l ve da woman hit by a commercial van whileexiting the parking lot of a SeattleCostco. The van’s driver, Costco and thec o m p a ny that owned the van settledprior to trial. The only remaining defen-dant was the City of Seattle, which thefirm said failed to correct a known andd a n g e rous condition in that area. Thecity rejected the claim, and the casewent to trial.

To prove the city knew about thedanger of the intersection, the firm’sp a ralegal found prior complaints aboutthe intersection and evaluations per-formed by Seattle officials. The firmdecided presenting the evidence in thet raditional way would be mundane. Itwas a stra i g h t f o r wa rd trial, and the doc-uments could fit in one box, but Swa n s o nG a rdner still decided to use technologyto create more interesting exhibits thatwould keep the jury’s attention.

The firm hired ProVideo, a compa-ny specializing in litigation supportvideo services and trial pre s e n t a t i o ns t ra t e g y. For document pre p a ration, thec o m p a ny suggested Swanson Gard n e rt rain its paralegal on Tr i a l D i rector Suite.At trial, scanned images of trial exhibitswere presented on a 6-foot screen usingan Elmo pro j e c t o r. The jury returned averdict of $13.2 million for the plaintiff.

Using technology sparingly, asSwanson Gardner did, can be very com-pelling and cost effective for firms of anysize, said O’Dear. He noted that too muchtechnology in the courtroom can be dis-t racting, but if it’s used appropriately, andwith the aim of making informationunderstandable, it’s tough to beat.

“ You still have to have the evi-dence,” he said. “Technology can’t makea bad fact into a good fact. But it canamplify the evidence to the jury, andthat is important because we are hire dto succeed in the battle of persuasion.These tools can help attorneys do thatbecause they give you leve rage. In thebattle of persuasion, these tools are theweapons.”

Clark said he thinks more judges,e ven those who have not embra c e dtechnology so far, will begin to feelmore inclined to ask for pretrial presen-tations created with digital tools. “Judgesa re always interested in something thatmakes the trial easier,” he said. “Even ifthey don’t know about technology, theyknow when trial time is decre a s e dbecause of it, or jurors are betterinformed through the use of it.”

Attorneys currently relying onb o a rds, easels and little else also willh a ve to join the technology re vo l u t i o n ,Clark noted. “More firms will start usingtechnology when they see the impact ithas in the courtroom.”

Kim Balk, IT director at DesMoines, Iowa-based Belin LamsonMcCormick Zumbach Flynn, agre e dtechnology use at every step in a casedefinitely looks like the future in trials.She said her firm has trained para l e-gals to use Tr i a l D i rector, Po we r Po i n tand CaseMap, a CaseSoft applicationthat is designed to organize details ofa case.

Balk said judges are becomingm o re comfortable with seeing technol-ogy in the courtroom, and tech-savvyfirms are leaping towa rd doing morewith depositions presented in digitalvideo (see “Digital Video” on Page 76 ) .At her firm, Balk said she has beenexploring how to make video deposi-tions more interesting with Ad o b ePhotoshop, Adobe Pre m i e re Pro videoproduction software and audio softwarethat makes witness testimony sound asgood as it looks. “Technology is re a l l ym oving fast,” she said. “We have tomake sure to stay ahead of it.”

Not all successful cases using technologyare complex or require an array of tech-n o l o g y. In a 20 01 trial brought bySwanson Gardner, a three-person firmin Renton, Wash., trial presentation soft-wa re was used in a simple, yet com-pelling way.

According to a report submitted byTodd Garner, a partner at the firm and

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A B O U T T H E A U T H O R

ELIZABETH MILLARD is a freelance writer based inMinneapolis.