Why I’m Not Going Paperless at Trial

not-paperless-at-trial

Assuming my habeas corpus motion is denied, I’m picking my first jury in about six weeks. Pretty scary stuff. I’ve started preparing my trial binder (hope for the best, prepare for the worst, right?) and it’s a real binder. No folders. No apps. Just good old fashioned paper with a three ring binder and lots of dividers. But there’s good reasons to ditch the tech for trials.

No 21st Century Courtrooms

The courtrooms in my county all have big flat screen TVs on wheels. But that’s where tech access ends. There is no wi-fi, and outlets are at a premium. This means if I wanted to use my laptop, I’d have to bring an extra battery just in case. I would also have to somehow lay my laptop/iPad on the ground next to the TV, or wheel the TV next to counsel table. Neither is logistically feasible, or really worth the annoyance. I will have my iPad at counsel table for notes, but that’s about it.

Paper Binders are Easy to Organize

I inherited this case from another attorney. There are over a thousand pages of police reports, eyewitness statements, bank records, etc. So I scanned the discovery productions in two batches (for two different productions) and made them searchable. But naming each document individually or in groups would take a ton of time. So instead I’m organizing a traditional trial binder.

With paper I can easily just put all the pages in order by date and then divide them by witness. I will create a cheat sheet of cross-references (no easy task either) and then I’m done. With my digital OCD I would have needed to create a descriptive name for each document, then filed it for the witness, then been able to access it quickly at trial.

Too Many New Things

Since this will be my first jury trial, I’m naturally terrified. But one thing I don’t want to be terrified of is something breaking. This isn’t a complicated trial. I don’t have any videos or cool graphics to show the jury. There are no depositions I need to display on a screen while I impeach a witness.

There is software that does all those things. I’m looking forward to trying it out and getting familiar with various trial software options in the coming months and years. But not in the month between now and the trial. I figure, I know how paper works. It’s easy. I’ve been using it my whole life. And it never runs out of batteries.

Lawyering Skills, Legal Technology

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  • http://www.bryceaschmidt.com Bryce Schmidt

    There’s nothing wrong with good old fashioned paper. I’ve found that one of my biggest problems with dealing with electronic documents is like you’ve said, organizing and naming. For example, I recently was trying to sort through and reorganize documents that I obtained in discovery. They were already digital, but I needed to put some of them in a reverse chronological order. The process to do so was much more time consuming than if it were just paper. I actually thought at one point that I might just print it all, reorganize it, and then scan it back to digital. There’s probably a program that would make the process easier, but I don’t know what it is.

    Technology is a tool like any other, it works well in some situations, but not so well in others. If it doesn’t make your job easier, then there’s no reason to use it.

  • http://hendricksonlaw.com Todd Hendrickson

    As a veteran trial attorney of 23+ years and over 40 jury trials (most of them complex medical malpractice/legal malpractice matters) I have to say I had to chuckle when I realized you seemed to be giving advice on why it was better to use a paper trial notebook rather than a digital notebook. I enjoy your blog, but as they say “come on man!” You really aren’t in a position to know what works best and why right now. You are doing something for the first time! And that’s ok. You should be nervous. In fact, I think you should have a healthy dose of fear and trepidation every time you step in front of a jury. That’s right, that’s healthy. But don’t try to explain why what you are going to do right now is the right way to do it because you haven’t tried any way yet, let alone any other way.
    I can give you dozens of reasons why I think working digitally at trial is better–based on my experience. I will tell you that you can have just as many problems with a paper presentation as with a paperless. Based on my experience, I prefer to try cases as paperLESS as possible. Does that mean I don’t have paper copies of critical documents available? Absolutely not. But with a reasonably inexpensive set of tools, you can present and produce almost anything you need during a trial on the fly. My trial kit includes a portable printer in the court room, projector, portable scanner, iPad, etc. I have another kit which expands my portable office kit if I’m trying a case on the road–which I do more often than not.
    As for the time needed to prepare your documents digitally, I think you’re missing a lot of tricks and advantages to doing it digitally. For example, if you need to redact information that the jury shouldn’t see based on a judge’s ruling, it is much easier to do this with Acrobat Pro. And summarizing and presenting depositions is simply easier digitally.
    So … good luck. Use the tools that make you comfortable now. But keep in mind that many, many experienced attorneys have gone paperless at trial for many, many good reasons. I just wanted to make the point that you probably shouldn’t tout why the system you’ve never used yet is better than any other system you’ve never used because you haven’t ever conducted a jury trial. Be a little humble. But seriously, good luck.

  • http://www.PAinjurycase.com Dave S

    For me, staying organized during a jury trial is critical. With paper, you tend to pull it out of the binder and set it somewhere on the table and it gets out of order. If you use a paper binder, keep that extra set in the binder and have other sets for witnesses, obviously you need a marked set for the court.

    Appearance matters, so you want to LOOK organized and be able to locate/retrieve documents quickly, whether that’s digitally or via paper.

  • http://hendricksonlaw.com Todd Hendrickson

    As Dave S says, it is important to the jury that you look like you know what you are doing. Looking organized and in control is vital. Juries hate it when you appear to be wasting their time because you can’t find what you are looking for, or are disorganized. Judge’s hate it too.

    I think the key to being able to conduct a trial as paperlessly as possible is to have your practice paperless. The big advantage to having your entire file paperless is that litigator’s need to have EVERYTHING with them at trial–just in case. If it is a small case and your file is small, then no problem. However, when you end up with files that would fill a file cabinet (or two) digital is simply better. And it helps in motion practice too.
    I recall a motion a few years ago when iPhones and Dropbox were both very new. My esteemed opposing counsel was arguing that there was a document out there that supported her position but that she hadn’t brought it with her to the hearing, as it was a side issue that neither one of us had anticipated the court would raise. While she’s telling the judge what she remembers the document said, I have my iPhone out and I’m scrolling though my Dropbox account to find the actual document. The judge is not pleased, because he has no idea what I’m doing. Getting highly perturbed, he looks at me and says that if I don’t have anything to add he’d really rather I not play solitaire during the argument. I told him that I was pulling up the document. I did so and showed it to him on my phone. After a few minutes of him being engrossed in pinching and zooming and asking questions about Dropbox and how it worked, he eventually told my opponent that she was wrong, the document said exactly the opposite of what she was arguing and ruled in my favor. He then sent her off to write up the order denying her motion and spent another half hour asking me tech questions.
    As for organizing digital documents, the point that Bryce raised, I think a lot of that comes down to naming conventions. If you have an iPad or iPhone, I would highly recommend David Sparks book “Paperless” available in the iTunes store. He goes into detail on how to set up and use various digital files, tools, tricks, apps. I believe it was named best book of the year by iTunes. Anyway, excellent resource.

  • http://www.alabamalawservices.com Justin Smitherman

    Good post. You’ll have to keep us updated on this process.

  • Joe

    Josh, I actually agree with your thoughts on this – especially when it comes to technological limitations in the courtroom. I was a prosecutor, and during my trials the tech support simply wasn’t there. In fact, in my very first trial I wanted to show a video. The video playing machine (the NOMAD) broke down, and the trial was delayed for about an hour while tech people tried to fix it. Eventually, I resorted to going downstairs to my office – which luckily was in the building – and bringing up my desktop computer to play the video. Needless to say I was barely breathing before we finally got the video to play.

    I will agree, though, that the jury likes to see you being organized. After another trial, a jury member told me that what really sold my side was that my notes were typed rather than handwritten. Apparently that mattered more than the multiple independent witnesses who saw an assault happen on a crowded sidewalk or the recording of the defendant hitting the victim.

    Good luck!

  • http://www.legallanguage.com/ Kaytie

    Not to sound spammy, but I work for a litigation support/legal translation company, and we catalog discovery documents as one of our services. If the technological side of it is what’s keeping you from using it in the courtroom, it shouldn’t be. Todd’s right–overall, working digitally is better.

    • http://lawyerist.com/author/samglover/ Sam Glover

      You’re right, that was totally spammy. Fixed it for you.

  • http://www.charlestonlaw.net Stephan Futeral

    Josh, first off, good luck with your trial (paper or otherwise). I have been trying cases for over 20 years, and I embraced the digital age from my first day of practice. In fact, through my company Bench & Bar, LLC, I sell the leading jury selection app for the iPad – JuryPad. Post-PC Era? I’m all in!

    It is not easy to keep jurors engaged, no matter what type of trial it may be. If it is a document intensive case, nothing can put a jury to sleep faster than passing documents up to be marked, having a witness read from something the jurors can’t see, publishing documents to the jurors to read and pass while they are trying to listen to testimony (never let the other side do this to you while you are examining a witness) and shuffling through stacks of exhibits, etc. The same is true of photos, charts, timelines, and so on. Nothing keeps a jury more engaged than effective trial presentation using dramatic graphics, callouts on documents, annotated exhibits, and so on all on display while examining your witnesses. I have tried cases in the most rural of counties where there was absolutely no tech in the courtroom and I had to use 50 extension cords just to get power. In those counties, some of opposing counsel scoffed at my use of tech and told me that the jurors would disregard my case because it was too “slick.” After I won many of those trials, I interviewed jurors who all said they appreciated the fact that my presentation kept them straight and informed on the evidence and issues in the case.

    With a little investment, you can get started without the expense of having a litigation support team running audio/visual for you until you build your practice and delve into more complex litigation. Here is my suggestion to you assuming you are on a very minimal budget:

    1) Projection screen – this will be cheaper than buying your own LCD display, and you can get more visual area for your dollar. Roadwarrior makes good screens that are travel friendly. Make sure you get at least 50/60 ”

    2) Projector – make sure it has HDMI in addition to VGA connection for flexibility. Also, you need enough Lumens (projection lighting strength) to project in larger, lighter courtrooms. More lumens usually means more cost, but at least get around 4,000. Lastly, make sure the projector has a short “throw” in case you need to project a large image, but you need to set up the projector close to the screen.

    3) Portable table for the projector. Don’t count on the courthouse to have what you need or that you will be able to set it up at counsel’s table.

    4) A laser printer (not inkjet) if you plan to print a lot out at trial. For light duty, Canon and others make small bluetooth enabled inkjets that also can run on battery (for small trials), I use the Canon i90)

    For more printing, there are plenty of options out there, but make sure the printer is AirPrint enabled if you are printing from an iPad. Also, make sure the printer has a “quiet mode” or is not very noisy. Noises from your table as you clack away on your keyboard or print docs will end up irritating most judges (especially if they are not used to seeing/hearing tech in their courtroom).

    5) The next feature depends on your budget and whether you choose to go with an iPad or to use a laptop. These days, I use my iPad for everything other than document intensive (meaning over 100 exhibits or so) cases. If its document intensive. If you can swing the cost, a good set up is a decent midrange laptop with a good graphics card (many laptops to choose from – you pick), a program such as TrialDirector (my favorite) and a wireless bar code scanner (USB cable is not long enough and gets in the way). You can outsource scanning all of your documents to PDF to import them into TrialDirector to reprint exhibits with your bar codes. Also, get a remote presenter to click through any slide presentations (you don’t want to be stuck behind your laptop).

    On a budget, the following set up will work well for less document/exhibit intensive cases:

    1) An iPad – if there is no wireless in your courtroom, then get the cellular model. Also, at least get 32GB. If you plan to load it up with videos, think 64GB.

    2) Bluetooth keyboard – Apple makes a good one, and there are plenty of other choices

    3) VGA or HDMI dongle – I have both just in case, depends on your other equipment.

    4) Apps –

    JuryPad for jury selection (you saw that plug coming, didn’t you?).

    Keynote – do NOT use any slide presentation apps for displaying exhibits to jurors. Apps like Keynote or the equivalent to PowerPoint are geared toward a LINEAR presentation. In trial, the order of your exhibits will change no matter how well you plan. Stay flexible!

    TrialPad – works great. Much like a lighter version of TrialDirector on the PC. Bit pricey at $89, but worth it. If you have to cut costs, TrialDirector puts out a free app, but it has crashed on me and would not play back videos that TrialPad had no problems displaying.

    Timeline 3d – Hands down the best timeline app I have used. Great presentation factor.

    TranscriptPad – Made by the folks who put out TrialPad. I actually was in the process of gearing up to have my company develop an app for this (and I may still) but I have shelved it for now. Frankly, most of these apps could use more features similar to their PC counterparts, but it does the job.

    FastCase – if you don’t have subscription to Lexis or Westlaw, this one is free. If you do have a subscription, both have companion iPad apps.

    iAnnotate – Great PDF annotator. There are others out there too, but I have found that iAnnotate handles large PDF’s better than others. I recently had oral arguments before the SC Supreme Court and had an entire week’s worth of transcripts, all appellate briefs, and all cases organized in iAnnotate. I was able to quickly and easily take our justices to volume, page, and line number quickly and without any difficulty.

    Outliner – If you are the type that likes to outline your presentation, then this one works very well. Practice tip – learn to present without outlines. The minute the court rules that certain testimony is out, or the witness zigs when you wanted them to zag, you will get thrown off of your outline. If you need a reminder to hit certain points during presentation or examination, then just make a brief checklist. Stay flexible!

    There are many more configurations, equipment, apps, and other tools out there, but this is a short list. By the way, bring extensions cords, a backup bulb for your projector (these are pricey, but bulbs burn out after about 250 hours and sometimes fail), extension cord(s), power-strip, gaffing tape (or else someone is going to trip over your cords and it may be you!), and extra batteries (for presenters, etc.) Last but not least, bring a very bright laser pointer. Some remote presenters (like RemotePoint) have built in laser pointers, but they tend to be too weak for use in a courtroom.

    I know this all sounds complicated, but your trial is all about your presentation. In other words, it is how the game is played in the 21st century.

    Here is the kicker – unfortunately your tech is not infallible. So, you will never truly get away from your notebooks and paper because they need to be on hand if all else fails.

    One last point – PRACTICE! Use your tools, play around, and run through a presentation or two before you use them. You want your tech to emphasize and fluidly convene your case – not to get in the way and be a distraction for you, the jurors, and the court.

    Again, good luck on your next trial!

    Stephan Futeral, Esq.
    Futeral & Nelson, LLC – http://www.charlestonlaw.net
    Bench & Bar, LLC – http://www.benchandbarllc.com

  • Steve P

    Josh, I liked your article. Some of the best trial lawyers I’ve come across use little or no technology in the courtroom. They win time and again because they know their case intuitively and focus on the basics: a good theme and lots of preparation. I think some lawyers hide behind technology because they can’t communicate well. It might even be fair to say that most cases are won and lost during jury selection – a place where technology isn’t going to help you much. I’ve gone high tech and low tech, and both have a place in the courtroom. At the end of the day, there’s nothing wrong with paper and there is nothing wrong with technology – I say use what you feel comfortable with and do your best to get your theme across to the jury.

  • Jennifer Romig

    Has anyone done jury studies on whether jurors find lawyers more credible and persuasive with paper (something tangible to hold up and show) or digital (something modern and streamlined)? Obviously the lawyer should not look disorganized, so the pragmatic answer is to use what works best for the lawyer. And as suggested in a previous comment, I suspect many judges like to see a paperless work style because they themselves struggle with so much paper. But holding the appearance of organization and all other factors equal including the time to admit exhibits, do studies show whether contemporary jurors find lawyers more persuasive in a “papered” or paperless work style?

  • Brian

    Good luck at your trial! I create my trial notebooks on computer but usually print them out and bring them to court. As great as technology is, if it’s not ready, the judge will not halt the trial for you, and nobody wants to be fumbling with electronics while jurors roll their eyes (or worse, laugh). It’s always good to have a backup. Would you believe, one of the courts that I practice in will not allow lawyers to bring in a computer or iPad without written permission from the judge- nothing more complicated than a cell phone is allowed. I don’t even bother to request permission when I have something there, I just get ready to go with paper.

  • Savannahlawyer

    Your doing the right thing. The fact that your courthouse can’t support a lot of tech devices makes the decision easy. You know how to use paper and you stated its your first jury trial. Paper, right now, is the best thing for your client. The cool tech stuff can be used later. Best of luck.

  • Joy

    The point about redacting documents is well made, but you haven’t touched on the natural skepticism many individuals have of things that are technological. Frankly, many of them know how to photoshop or know folks that do and most of them probably have seen faked pictures on the web. Having a critical document that’s available on line but not in hard copy is risky since they may doubt that it hasn’t been modified, particularly if one side says it says one thing but can’t produce a copy that says that and the other side as a copy that says the opposite. It’s not that that couldn’t have happened with a run of the mill copier, but people trust hard copies more, particularly those who are not technosavvy. Frankly, I’m surprised at the level of trust put in documents lately since editing even a PDF document (or worse yet, creating one out of whole cloth using elements from a series of prior documents) is just too darned easy.

  • KMan

    I’m the tech guy at our firm. I’m the first to want to use all the high tech fancy stuff in any given scenario.

    But when we prepare for trial, we use paper. An Elmo projector (basically a digital video camera connected to a regular projector) will show any piece of paper you can slap onto the top, to show the jury. Special powerpoint presentations have their place, on occasion, but usually only during opening and closing, if that, and only if a particularly compelling series of documents and other information really warrants it. During trial? Way too cumbersome, mostly. (Criminal trials and others that benefit from crime scene recreations and walk-throughs are another story, perhaps, but well outside of our practice area. One size does not fit all.) Our closing trial graphics, in the majority of cases, consist of a few key documents blown up to poster size and mounted on posterboard, sitting on a easel.

    Since we often represent the big bad corporation, the lower tech we can go, the better. We do NOT want to come across as overwhelmingly technologically superior. Knowing the case well, and presenting arguments and evidence in a concise, cogent manner, ideally while presenting a genuinely likeable image to the jury, are the best bet at helping judges and juries see things from our client’s point of view. Any struggling with technology… and again, I’m the tech guy, so I know well both how well and how BADLY technology can behave… is going to detract from your message. If you do go the high tech route, you had better be darned certain that you know the software inside and out, and can easily manage run-of-the-mill computer issues should they arise, OR have a dedicated person in charge of running the technology sitting there beside you, so the lead trial attorney can concentrate on the meat of the case, not the nuts and bolts of the presentation.

  • http://trial-technology.blogspot.com Ted Brooks

    Interesting perspectives, as well as some great comments from readers. Since my profession is focused on the use of technology in trial, I may be just a little biased, but I do have a few thoughts to add to the discussion.

    “There is no wi-fi, and outlets are at a premium.” — Easily handled by bringing in your own wireless hotspot, or don’t worry about the Internet. Everything should be locally on your laptop anyway. As for electrical outlets, we’ve “wired” courtrooms with only one available outlet. It will require extension cords and power strips.

    “But naming each document individually or in groups (a descriptive name for each document) would take a ton of time.” — Yes, it certainly would. You could use a bulk-renaming utility, but would be much better off naming your files alpha-numerically, and creating an exhibit list anyway. I recently wrote an article on this topic, if you’re interested: http://trial-technology.blogspot.com/2013/04/managing-exhibits-in-trial.html

    “I don’t have any videos or cool graphics to show the jury.” — While it might seem that these types of media would be the main justification for using trial presentation software, it was actually created for bringing otherwise boring documents to life, via simple use of zooming in on a desired paragraph, and highlighting key text.

    “Has anyone done jury studies on whether jurors find lawyers more credible and persuasive with paper…?” — I have been involved in numerous post-trial jury surveys, and while one is not necessarily more persuasive than the other, the jurors consistently tell us that they appreciate the fact that we used technology — especially when opposing counsel did not. The main reasons given are that it helps them to better understand the evidence, and it helps speed the process. Many Judges have shared the same thoughts. See http://trial-technology.blogspot.com/2011/05/judiciary-opinions-on-technology-in.html

    Good luck in your trial. At this point, it sounds like you’ve made up your mind with this one, but it might be worth the investment to bring in a trial presentation consultant in the future, to see what can be done, and how it all works. Doing so, you won’t have to be the one buying lots of new software and projectors, crawling around the courtroom floor taping down cables, or worrying about finding that important exhibit when you need it.