Legal Operations

Do Civil Trials Even Happen Anymore?

Thanks to technology, boxes and binders have been replaced by computers and a trial technician.

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I haven’t read about a good civil trial in a while. The truth is that trials are rather boring when you’re sitting there in the courtroom. Not for the lawyers, though; and not for a trial technician, either. Although civil trials are exceedingly rare and the vast majority of cases settle before trial, I thought it would be useful to write something about trial preparation and presentation.

Trial presentation is kind of the ignored stepchild of the EDRM. Legal operations professionals spend so much time and money collecting, processing, and reviewing documents that sometimes we forget that the whole point of those processes is to eventually present evidence in court and win on the facts and the law.

When a case does go to trial, a great deal of preparation is necessary.

A trial is like any other legal project. It is necessary to plan. A trial team should meet to discuss, among other things, the roles of each person involved, the objectives and the processes necessary to achieve those objectives, communication, and the role technology will play in the trial. Operations professionals will appreciate that there should be discussion about:

  • The location and length of the trial;
  • The number of witnesses and the timing and scheduling of testimony;
  • The documents, exhibits, video, or other materials needed for use at trial; and
  • The equipment, tools, and resources needed in the courtroom and war room.

We spend a great deal of time in discovery using sound processes to identify the handful of truly important documents for presentation in a courtroom. Defensible processes don’t stop there. An attorney must be able to establish the authenticity of a document, lay a proper evidentiary foundation, and use the document without objection. That does not happen flying by the seat of one’s pants.

To avoid obstacles and help trial counsel prepare for a trial, several things need to happen:

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  • Deposition transcripts and videos must be digitized and synchronized;
  • Designations highlighting deposition testimony for use at trial need to be prepared and exchanged with other parties;
  • Video clips of deposition designations should be created;
  • Exhibits need to be exported from the document review platform in which they were initially reviewed and prepared for use at trial;
  • The final list of exhibits needs to be prepared and distributed to the parties;
  • Laptops (and backup laptops) must be prepared and configured for use at the trial site;
  • Contact court staff to coordinate the use of equipment in the courtroom;
  • Equipment (copy machines, scanners, monitors, projectors) must be ordered; and
  • Arrangements need to be made for office or hotel space, food, and beverages.

Modern courthouses today have policies and procedures for the use of technology during a trial. These policies and the judge’s local rules should be consulted in advance of trial.

Witness outlines are typically used by trial attorneys who will examine witnesses, including questions they will ask and the exhibits they will use during witness testimony. Get access to these outlines and review them prior to the witness testimony. Exhibits should be organized in a way that makes them easily accessible during presentation in the courtroom.

Witness preparation frequently takes place prior to testimony. For this, be sure to set up a laptop, projector, and screen in a small room so that the attorneys may walk through the testimony with the witness and preview any exhibits or videos.

Lastly, attorneys usually like to rehearse opening and closing statements. Again, get an outline and prepare exhibits and video clips they may want to play during the course of their argument.

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It used to be that legal teams arrived in court with an entourage of associates and paralegals, boxes, binders, and legal pads. Today, they arrive carrying laptops or tablet devices. The entourage is gone, the boxes and binders have been replaced by computers, and a trial technician presents evidence in the courtroom on a computer screen. The days of the ELMO projector have been replaced by digital cameras, elaborate and sometimes expensively crafted animations, and devices that can display, move, manipulate, or change images, pictures, and videos in seconds.

There are not many trials anymore because trials are expensive, they require a great deal of resources, and they are time consuming. Juries are also unpredictable.

When your operations team does have a case on trial, remember that having a plan and defined processes will lead to smoother, less frenetic outcome. Presenting evidence has also become much more efficient in the courtroom, thanks in large part to the increased demand for and use of technology.

Mike Quartararo

Mike Quartararo is the managing director of eDPM Advisory Services, a consulting firm providing e-discovery, project management and legal technology advisory and training services to the legal industry. He is also the author of the 2016 book Project Management in Electronic Discovery. Mike has many years of experience delivering e-discovery, project management, and legal technology solutions to law firms and Fortune 500 corporations across the globe and is widely considered an expert on project management, e-discovery and legal matter management. You can reach him via email at mquartararo@edpmadvisory.com. Follow him on Twitter @edpmadvisory.

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