Effective Use of Trial Software

By: Sean P. Gaynor

Sean Gaynor wrote this article for the New Jersey Institute for Continuing Legal Education’s “Family Law Hot Tips – Let’s Talk About Tech” seminar. 

Important Tips To Control the Courtroom Without Losing Control

Settlement negotiations have failed. The case is old. It’s time: the case has to be tried. When a trial gets scheduled, there is a lot of work to do to prepare for the same, but the first and most important thing to do is understand why you have to try this case. It’s important to remember there’s a reason you are at trial. Whether you have an opposing party who refuses to be rational or a genuine issue that requires someone to make a call, you need to make sure the court understands not only the issues but why you’re there. We are before a court of equity, and thus, your presentation cannot simply rely upon facts and the law but must use all forms of persuasion to convince a judge why your position is the appropriate one under all of the circumstances.

The appropriate use of trial software can play a large role in effectively presenting your case to the judge. If used in a manner that helps advance your case, this software can be a game changer to many aspects of your case. And, particularly after the advent (and subsequent death) of “virtual” trials, the software can be an important tool in your arsenal. That said, this software is not without pitfalls, and it’s important to master them so that you do not inadvertently hinder your own case. Here are some important tips to consider.

Trial Software? What Do You Mean, Trial Software?

Any time you are presenting electronic evidence, you need to use some kind of software to present it. If you have a witness appearing virtually, you can utilize Zoom. If you are preparing a closing argument after a longer trial, a PowerPoint presentation can be an effective visual way to help frame your case. If text messages or similar conversations are an important piece of evidence in your case, there are applications that will download text chats to provide full context to those chats. For example, iMazing is an application that will download an entire text message chain between two parties and provide each text with a date and time stamp. This works much better than screenshots, which are limited in size and do not always include time stamps in the conversations.

There are also various programs out there that permit you to “try a case” through their program. TrialPad, for example, permits you to mark exhibits, mark when an exhibit is entered into evidence, create various reports related to exhibits, share exhibits to a screen with a “presenter” button that allows you to control what is being shared, and when it is being shared, redact exhibits in real-time, use your finger as a “laser pointer” on exhibits, and even call out specific parts of an exhibit to zoom in on the evidence in question. When used correctly, these programs can help streamline the trial experience – no more bulky binders (sort of).

Sort Of?

While having everything on a tablet is great, it’s important to never rely solely on digital evidence. First of all, your judge may want hard copies of exhibits, so you should always have a trial binder for the court. Likewise, unless you’ve pre-exchanged exhibits, you should have copies to provide to your adversary. And we all know technology sometimes doesn’t work, so having a spare hard copy can be helpful. Hopefully, you’ll know the technology works because you’ll have practiced ahead of time.

We’re Talking About Practice?

Yes, practice. Most courtrooms in NJ are now equipped to use this technology, but not all of them work the same. Make sure to request that the court give you time to set up and make sure everything is working. For example, TrialPad can stream to most smart TVs, but sometimes your court won’t have that. There are still alternate avenues, though – such as setting up Zoom on the TV and streaming TrialPad through Zoom on your own device.

Know Your Audience

When you present your evidence, it’s important to know your audience. And by that, I don’t just mean the court in front of you. If you’re at the trial level, it’s important to ensure that you are creating a record for any possible appeal. Even if you do not believe an appeal will be taken (maybe the parties don’t have the money, or they’ve already indicated they will live with the court’s decision), it is still your duty as an attorney to preserve that right should things change. With all this talk of technology, it’s important to recognize that the appellate division will deal largely with a transcript and your appendices. Thus, by way of example, if you do use a PowerPoint presentation, you should ask the court to mark that as an exhibit for the record. It’s not an exhibit that will get introduced into evidence, but by marking it for identification, you can include it in your appellate appendix if the same becomes necessary.

But marking an exhibit is not the end of it. It is important to be very specific and direct when eliciting testimony about an exhibit. For example, when you’re presenting a video, make sure you place on the record any time you start and stop the video from asking questions about what was played to that point and elicit from the witness what was happening on the video so it is clear. That way, the written transcript will contain your evidence for you.

Don’t Lose Control

While technology, when used correctly, can be credibly helpful, it has to be used correctly. Technology is imperfect, and it’s important to remember that no matter how many times you play a video on a thumb drive from your computer, as soon as it’s on the judge’s computer, it may not work. Be prepared to deal with those issues, so that you can continue to efficiently and confidently present your case. That is important for trial work because judges appreciate a focused and clean trial. If technology fails you and you’re not prepared, you can suddenly look less prepared not only to the court but also to your client, and you don’t want that to happen.

Ultimately, you have to do what’s most comfortable for you. If you’re an attorney who works better with a binder, stick to your binders. If you are comfortable using some of the newer technologies, use them – just make sure the trial isn’t your first time using them (practice!). It’s always good to try anything and see what can more effectively demonstrate why your client’s requests are rational and reasonable and should ultimately be the outcome in this matter.