Non-techies
can dazzle
‘em with technology
By
Jane Pribek
Wisconsin Law Journal
April
23, 2003
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Image
of chad displayed as part of PowerPoint presentation which
Fred H. Bartlit Jr. gave during the Florida presidential
election trial.
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To
all you trial lawyers: You’re NOT using PowerPoint, or some
other evidence presentation software?
You’re
not alone.
At
the American Bar Association’s TechShow 2003 in Chicago earlier
this month, in a room of more than 100 attorneys attending a Litigation
Track program, less than a quarter raised their hands when asked
if they’re using PowerPoint. Remember, this is at a tech
show — where (you’d think) fairly techy people are in
attendance.
The
presenters, attorneys Craig D. Ball and Fred H. Bartlit, Jr.,
didn’t coddle those who are dragging their heels over whether
to harness technology to enhance their advocacy skills. “It’s
an incredibly powerful tool. I do not believe that today that
you can be an effective trial lawyer without using PowerPoint
in court,” Bartlit observed, adding later that those who
won’t learn it are lazy.
Bartlit,
of Bartlit Beck Herman Palenchar & Scott in Chicago is also
known as “the President’s lawyer” because he was
one of the three attorneys who represented George W. Bush in the
Florida election contest before Judge N. Sanders Sauls in 2000.
Using
actual portions of his PowerPoint presentation from that trial,
and others, Bartlit demonstrated just how effective electronic
evidence presentation can be. Among his examples was a simple
photo of a “chad” in its various forms, as well as the
instructions sheet for how to vote in West Palm Beach, with a
“call-out” of the key provisions. Even Democrats have
to admit that it’s persuasive stuff.
How
did this play to the fact-finder? Just ask the residents at 1600
Pennsylvania Avenue.
The
Case for PowerPoint
So
why the hesitation to use technology among trial attorneys? Some
of the excuses Bartlit and Ball frequently hear are:
- I’m
an “old fart” who can’t learn the technology.
-
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Craig
D. Ball
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It’s
too expensive.
- It’s
too time-consuming.
- My
public speaking skills are such that I don’t need it.
- Jurors
don’t trust glitzy presentations.
- I’m
David up against Goliath. It’s not fair.
- My
judge won’t allow it.
Looking
at each point, Bartlit observed about the first that he’s
in his 70s and had little trouble learning PowerPoint. If he can
do it, anyone can, he said. Moreover, his staff frequently polls
jurors post-trial, and he’s even heard jurors say that they
were impressed that an old guy like him could be so adept with
technology.
It’s
not something that can be mastered overnight, Bartlit acknowledged.
You’ll need to practice over the course of about six weeks
to really feel comfortable with the program.
For
the second point, the good news about the program is you probably
already have it; PowerPoint is a standard feature of the Microsoft
office suite. If you don’t have it, it’s cheap. Or check
out Sanction II, a similar program that also won’t break
your bank.
You’ll
additionally need a scanner, running less than $100, and a good
digital camera, around $300. You might want to transform video
(e.g. a deposition) into a digital format; that requires Dazzle
software, available at Target or Sam’s Club for about $50.
And unless you try more than two cases annually, you’re probably
better off renting a projector and screen, typically available
at a minimal cost.
As
for the time factor, Ball, of Craig D. Ball P.C. in Montgomery,
Texas (who has his own newsworthy case; he’s serving as an
expert to the plaintiffs in the Enron/Arthur Andersen litigation)
demonstrated that creating a call-out, or highlighting and enlarging
a portion of the text of a document, for example, typically takes
less than 10 minutes. That’s for beginners.
For
those who say they’ve gotten by just fine with their oratory
skills alone, consider this: Ball cited research that three days
after jurors have heard a presentation of words only, they recall
only about 10 percent of it. However, when you combine visuals
with the spoken word, they remember 65 percent.
As
for the jurors not “trusting” technology, Bartlit pointed
out that half the jurors nowadays are under 50. That means there’s
a high probability that not only do they trust technology, but
also, they use it themselves.
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Fred
H. Bartlit Jr.
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And
there’s some truth to the call of fictional attorney Billy
Flynn from the film “Chicago” to “give ‘em
the old razzle-dazzle.” Ball stated, “I don’t want
to suggest that we want to use these tools to bamboozle people,
that we add flash without substance — but we also don’t
have the right to bore jurors.”
With
regard to the David and Goliath scenario, jurors don’t really
care about the size of your firm. They care about making the “right”
decision — and if technology helps you become a better teacher,
so they can understand the issues and make that correct decision,
they’ll be more inclined to vote your way, regardless of
where your paycheck comes from.
A
similar argument that an opposing counsel on one of Bartlit’s
cases made was that his technology is “new-fangled.”
The jury found the “country boy versus city slicker”
analogy just as unavailing, he said.
Finally,
as for courts rejecting technology at trial, they are the minority.
Ball noted, “Judges get really bored, too. No one likes creative
demonstrative evidence more than a judge.”
But
for the handful that won’t allow it, period, your time wasn’t
wasted. If nothing else, Bartlit reasoned, the process of creating
a PowerPoint presentation forces you to organize your thoughts
and focus on the most convincing evidence.
Tips
for Persuasive Presentations
Everyone
in the office should know the program. Bartlit said that delegating
this to a techier staff member won’t do you any good if you
need to make a last-minute change in court. And even if you bring
that person to court, remember the previously mentioned “old
fart” factor? You’ll come across much better to a judge
and jury if you can do it with a few easy keystrokes.
As
for “knowing” the program, attain a level of familiarity
so your presentation is more than just bullet-pointed snippets
of text that make the screeching tires sound as you call them
up. “Don’t do that to jurors,” Ball pleaded.
-
Use
the big screen. Judges in wired courtrooms might be inclined
to say the big screen is unnecessary when they and the jurors
have monitors in front of them. Change their minds whenever
possible, because then the chances are better that all eyes
will be on you and the image you’re projecting.
At
the same time, however, it’s a good idea to have photocopies
of the key documents or images for the jurors, Bartlit said.
It’s
also preferable to use a radio mouse and stand next to the screen.
You can use a laser pointer - but use it sparingly.
Start
out with, “My client’s story began ...” rather
than, “I’m going to cover eight points today,”
advised Bartlit. With the latter approach, listeners count your
points rather than thinking about them.
- Keep
a small digital camera in your briefcase. “The best camera
is the one you have when you need to take a picture — not
the one in your drawer,” said Ball. Carrying a portable
hard drive for your laptop is also a smart idea.
- Don’t
limit this technology to trials. Ball said he’s created
effective electronic settlement brochures, while Bartlit noted
that his firm uses PowerPoint in “beauty contests.”
