Evidence Comes to Life with the Click of a Mouse

From humble beginnings in 1951 when the first blackboard was used in a courtroom, visual props have evolved in sophistication. The blackboard led to flip charts and photo enlargements, overhead projection, the playing of videotapes and now to the integration of sight and sound with electronic slide presentations.

While props in the courtroom provide razzle-dazzle to keep jurors attentive, they should never be overlooked in situations such as settlement conferences, mediations and arbitrations where strict evidentiary rules do not apply. Depending on the type of lawsuit, only one in 10 cases actually goes to trial, making it far more likely other methods of dispute resolution will be pursued. With more flexible boundaries for making persuasive arguments, these venues are ideal for electronic presentations. After all, litigators are storytellers and their goal is to present a compelling story to which the audience will respond. So, even if the audience is only comprised of the opposing side, a multi-media presentation can be an effective tool to underscore the strength of a case and leave a lasting impression.

There are several presentation software packages on the market, but the easiest to use and most readily available is Microsoft Corporation's PowerPoint software. The software allows a variety of visual and auditory techniques to be programmed into a presentation. For specific instructions, the National Institute for Trial Advocacy (NITA) published a book titled, “PowerPoint For Litigators,” which outlines effective tools for trial, mediation, arbitration and appeals.

Despite the easy access to PowerPoint software, it is still not commonly used in litigation. More than 100 attorneys at the American Bar Association's TechShow 2003 were asked whether they used PowerPoint software and, even though this was a technology-oriented show, less than 25% responded that they had used electronic presentations.

Following are four examples of how PowerPoint software can be used to develop and deliver powerful multi-media presentations.

Manipulating documents for emphasis.

Original correspondence, text documents or data may provide critical information during a settlement or mediation. In its original form, a document is merely static corroboration of a point, but in electronic form, it can become a dramatic display of truth. Any document can be scanned, imported into PowerPoint and programmed to use callouts. A callout is a selected phrase or section of the document that is animated to literally explode off the page with the click of the mouse. This technique allows selected words or phrases to lie dormant within the document, until, at the right moment and with the click of a mouse, the words come to life by popping out of the text ' becoming the focal point of the slide.

Using Internet images for impact.

The Internet is a valuable resource from which digital images can be plucked for later use. The usefulness of images captured from a website are two-fold. First, the images are already in a digital format and can be copied into a PowerPoint presentation very quickly and easily. Second, the Web site may contain images or information to create a visual impact or even help your case. For instance, using executive photos captured from a website creates a strong impact when used in an electronic presentation. The photo visually links the executive to the argument being made and makes a strong imprint on the minds of the audience, particularly when the executive is sitting in the room.

Other images may help underscore your argument. In a recent case, the opposing party argued the company was bankrupt, yet on the Web site it was clear there was a strong affiliation with a very large parent company. The parent company's headquarters building was displayed on the allegedly bankrupt company's Web site. The photo was copied and inserted into the PowerPoint presentation and was visible every time the issue of the smaller company's bankruptcy was mentioned. Continually showing the headquarters building when disputing the “bankrupt” company's claims visually demonstrated the weakness in the opposing party's argument.

Incorporating audio with digital voice mail.

Although most states and the federal rules address electronic issues and consider it part of the discovery process, only 5% of the respondents to an ABA survey conducted in 2002 were the target of electronic discovery requests. Think of the possibilities for using digital voice mail in PowerPoint presentations.

In a recent case, the defendant produced a letter regarding a university study to support its case. The letter was signed by the in-house counsel for the university at which the study was said to have taken place. To determine the validity of the letter, the plaintiff's attorney called the in-house counsel to inquire about the study, but the attorney was unavailable. The in-house counsel later left a message on the plaintiff's counsel's voice mail system stating that he did not write the letter and that no such study was ever conducted at the university. The letter the defendant used as support had been forged.

In the plaintiff's PowerPoint presentation, select quotes from the letter were typed as text. The voice mail message, which had been e-mailed by co-counsel to the plaintiff's attorney, was imported into the presentation. When this is done, a small icon appears on the slide. The drama of the moment was having the letter text on the screen being strongly refuted by the very person who allegedly wrote the letter. With a click of the icon, the slide unfolded from static evidence supporting the defense to a strong argument for the plaintiff.

There are two ways to incorporate voice mail messages into an electronic presentation. If the message is left on a digital system, the voicemail can be sent as an attachment via e-mail to the person developing the presentation. The voice mail can then be imported into the presentation. For non-digital systems, the message can be audio taped and then converted to a digital format.

Using the power of someone else's words to make your case is strong motivation to include digital voicemail in an electronic discovery request.

Integrating sight and sound with video clips.

The benefit of not being tied to evidentiary rules is that segments of video taped sessions, such as depositions, can be used in an electronic presentation. Prior to a deposition in a recent case, the opposing party agreed the session could be videotaped. The video camera was pointed directly at the person being deposed and the person asking the questions sat just to the side of the camera. Each time the deposee answered questions, they were looking directly into the camera. Later, when segments of the video were embedded into a PowerPoint presentation, it seemed as though the person was speaking right to the audience. Needless to say, the combination of the transcript text on the screen with the launch of a video segment where the person speaks the words out loud made for a memorable presentation.

In a courtroom setting, research shows that jurors retain 10% of the information they hear after 72 hours, 20% if the information was visual and 65% if they were both heard and saw the information. While there are obviously no jurors in settlement conferences or mediations, the impression the presentation leaves on the opposing side has the same memorable impact.

To use video segments in an electronic format it must be taken by a digital camera and stored in an MPEG or similar format. Some courts now offer DVDs of proceedings, but this format does not allow easy editing on the computer and is not compatible for use with PowerPoint software. A DVD must be copied to a CD-ROM, and then edited into MPEG segments.

Tips on What to Avoid in an Electronic Presentation

Getting started on PowerPoint software can take some getting used to, but once it is mastered, which is easy to do, it becomes an effective litigation tool. Common mistakes made when creating an electronic presentation include:

• Using extraneous sounds when text appears on the screen. PowerPoint software provides many options for having text appear. Using the sound options (like screeching tires, a drum roll or an explosion) diminishes the credibility of the presentation.
• Overusing slide transitions becomes distracting to the audience. Generally, having text points appear one at a time is the best approach. Having text fly or spiral on to the screen is a gimmick that does not add to the sophistication of the material.
• Using long video clips. Short, to-the-point segments will be more memorable and add more emphasis to the presentation than showing long sections all at once.
• Showing everything included in the presentation. In the earlier example where video clips were used, there were several dozen clips embedded in the presentation, but only two were used.

Tips on preparation

Adding an electronic component to litigation requires some upfront preparation. Here are a few suggestions for preparation and execution:

• Find out as much as possible about the layout of the room in which the conference or meeting will take place. Think about the best positions for the monitor or screen, your laptop and projector, speakers and where the electric outlets are in relation to the equipment. Bring extension cords.
• Arrive early and test the equipment. Bring hard copies of the presentation as a contingency in case the equipment does not work.
• Invest in a radio-controlled mouse so you are free from the laptop and can move about the room if you chose.
• Learn to read the audience to quickly decide when enough is enough. Technique overkill diminishes both impact and credibility. Presentations can be developed to include every piece of information (hyperlinks, video clips, digital sound) you can think of to support key points, but due to the nature of the software, you can decide on the spot what best supports your argument and only you will know what you had up your sleeve that you chose not to use.
• Pay attention to personal timing. The presentation should enhance your case, not take front stage or get in the way. Practice ahead of time to get a sense of whether your timing is compromised during the presentation and adjust accordingly.
• PowerPoint presentations do not have to be all text. It is an ideal medium for visual imagery and storytelling. Use what is available to your advantage in creating compelling arguments. As the adage goes, “a picture is worth a thousand words.” As with any good story, drama must occur at just the right moments. So is true with settlement conferences, mediations and arbitrations. A little technique goes a long way to creating memorable and powerful arguments using multi-media PowerPoint presentations.

Preserving Internet Images

Prior to sending a demand letter related to a Web site, create a copy of the opposing party's Web site. This preserves the Web images as they appeared on a particular date, prior to any changes the opposing party may make after receiving the letter. Exact copies of Web sites can be created for future use using a program like Web Whacker by Blue Squirrel. A second, though less reliable, option is to visit The Internet Archive at www.archive.org. The organization has taken responsibility for capturing old versions of Web sites and has built a digital library for accessing historic copies of many sites. To access previous versions of sites, type the Web address into the search function – called the Way Back Machine. While this method may yield some interesting and fruitful results, it is not the most reliable way to capture old sites since not all versions are saved in the library and not all sites launch properly once archived.

- D. Chad McCoy

From humble beginnings in 1951 when the first blackboard was used in a courtroom, visual props have evolved in sophistication. The blackboard led to flip charts and photo enlargements, overhead projection, the playing of videotapes and now to the integration of sight and sound with electronic slide presentations.

While props in the courtroom provide razzle-dazzle to keep jurors attentive, they should never be overlooked in situations such as settlement conferences, mediations and arbitrations where strict evidentiary rules do not apply. Depending on the type of lawsuit, only one in 10 cases actually goes to trial, making it far more likely other methods of dispute resolution will be pursued. With more flexible boundaries for making persuasive arguments, these venues are ideal for electronic presentations. After all, litigators are storytellers and their goal is to present a compelling story to which the audience will respond. So, even if the audience is only comprised of the opposing side, a multi-media presentation can be an effective tool to underscore the strength of a case and leave a lasting impression.

There are several presentation software packages on the market, but the easiest to use and most readily available is Microsoft Corporation's PowerPoint software. The software allows a variety of visual and auditory techniques to be programmed into a presentation. For specific instructions, the National Institute for Trial Advocacy (NITA) published a book titled, “PowerPoint For Litigators,” which outlines effective tools for trial, mediation, arbitration and appeals.

Despite the easy access to PowerPoint software, it is still not commonly used in litigation. More than 100 attorneys at the American Bar Association's TechShow 2003 were asked whether they used PowerPoint software and, even though this was a technology-oriented show, less than 25% responded that they had used electronic presentations.

Following are four examples of how PowerPoint software can be used to develop and deliver powerful multi-media presentations.

Manipulating documents for emphasis.

Original correspondence, text documents or data may provide critical information during a settlement or mediation. In its original form, a document is merely static corroboration of a point, but in electronic form, it can become a dramatic display of truth. Any document can be scanned, imported into PowerPoint and programmed to use callouts. A callout is a selected phrase or section of the document that is animated to literally explode off the page with the click of the mouse. This technique allows selected words or phrases to lie dormant within the document, until, at the right moment and with the click of a mouse, the words come to life by popping out of the text ' becoming the focal point of the slide.

Using Internet images for impact.

The Internet is a valuable resource from which digital images can be plucked for later use. The usefulness of images captured from a website are two-fold. First, the images are already in a digital format and can be copied into a PowerPoint presentation very quickly and easily. Second, the Web site may contain images or information to create a visual impact or even help your case. For instance, using executive photos captured from a website creates a strong impact when used in an electronic presentation. The photo visually links the executive to the argument being made and makes a strong imprint on the minds of the audience, particularly when the executive is sitting in the room.

Other images may help underscore your argument. In a recent case, the opposing party argued the company was bankrupt, yet on the Web site it was clear there was a strong affiliation with a very large parent company. The parent company's headquarters building was displayed on the allegedly bankrupt company's Web site. The photo was copied and inserted into the PowerPoint presentation and was visible every time the issue of the smaller company's bankruptcy was mentioned. Continually showing the headquarters building when disputing the “bankrupt” company's claims visually demonstrated the weakness in the opposing party's argument.

Incorporating audio with digital voice mail.

Although most states and the federal rules address electronic issues and consider it part of the discovery process, only 5% of the respondents to an ABA survey conducted in 2002 were the target of electronic discovery requests. Think of the possibilities for using digital voice mail in PowerPoint presentations.

In a recent case, the defendant produced a letter regarding a university study to support its case. The letter was signed by the in-house counsel for the university at which the study was said to have taken place. To determine the validity of the letter, the plaintiff's attorney called the in-house counsel to inquire about the study, but the attorney was unavailable. The in-house counsel later left a message on the plaintiff's counsel's voice mail system stating that he did not write the letter and that no such study was ever conducted at the university. The letter the defendant used as support had been forged.

In the plaintiff's PowerPoint presentation, select quotes from the letter were typed as text. The voice mail message, which had been e-mailed by co-counsel to the plaintiff's attorney, was imported into the presentation. When this is done, a small icon appears on the slide. The drama of the moment was having the letter text on the screen being strongly refuted by the very person who allegedly wrote the letter. With a click of the icon, the slide unfolded from static evidence supporting the defense to a strong argument for the plaintiff.

There are two ways to incorporate voice mail messages into an electronic presentation. If the message is left on a digital system, the voicemail can be sent as an attachment via e-mail to the person developing the presentation. The voice mail can then be imported into the presentation. For non-digital systems, the message can be audio taped and then converted to a digital format.

Using the power of someone else's words to make your case is strong motivation to include digital voicemail in an electronic discovery request.

Integrating sight and sound with video clips.

The benefit of not being tied to evidentiary rules is that segments of video taped sessions, such as depositions, can be used in an electronic presentation. Prior to a deposition in a recent case, the opposing party agreed the session could be videotaped. The video camera was pointed directly at the person being deposed and the person asking the questions sat just to the side of the camera. Each time the deposee answered questions, they were looking directly into the camera. Later, when segments of the video were embedded into a PowerPoint presentation, it seemed as though the person was speaking right to the audience. Needless to say, the combination of the transcript text on the screen with the launch of a video segment where the person speaks the words out loud made for a memorable presentation.

In a courtroom setting, research shows that jurors retain 10% of the information they hear after 72 hours, 20% if the information was visual and 65% if they were both heard and saw the information. While there are obviously no jurors in settlement conferences or mediations, the impression the presentation leaves on the opposing side has the same memorable impact.

To use video segments in an electronic format it must be taken by a digital camera and stored in an MPEG or similar format. Some courts now offer DVDs of proceedings, but this format does not allow easy editing on the computer and is not compatible for use with PowerPoint software. A DVD must be copied to a CD-ROM, and then edited into MPEG segments.

Tips on What to Avoid in an Electronic Presentation

Getting started on PowerPoint software can take some getting used to, but once it is mastered, which is easy to do, it becomes an effective litigation tool. Common mistakes made when creating an electronic presentation include:

• Using extraneous sounds when text appears on the screen. PowerPoint software provides many options for having text appear. Using the sound options (like screeching tires, a drum roll or an explosion) diminishes the credibility of the presentation.
• Overusing slide transitions becomes distracting to the audience. Generally, having text points appear one at a time is the best approach. Having text fly or spiral on to the screen is a gimmick that does not add to the sophistication of the material.
• Using long video clips. Short, to-the-point segments will be more memorable and add more emphasis to the presentation than showing long sections all at once.
• Showing everything included in the presentation. In the earlier example where video clips were used, there were several dozen clips embedded in the presentation, but only two were used.

Tips on preparation

Adding an electronic component to litigation requires some upfront preparation. Here are a few suggestions for preparation and execution:

• Find out as much as possible about the layout of the room in which the conference or meeting will take place. Think about the best positions for the monitor or screen, your laptop and projector, speakers and where the electric outlets are in relation to the equipment. Bring extension cords.
• Arrive early and test the equipment. Bring hard copies of the presentation as a contingency in case the equipment does not work.
• Invest in a radio-controlled mouse so you are free from the laptop and can move about the room if you chose.
• Learn to read the audience to quickly decide when enough is enough. Technique overkill diminishes both impact and credibility. Presentations can be developed to include every piece of information (hyperlinks, video clips, digital sound) you can think of to support key points, but due to the nature of the software, you can decide on the spot what best supports your argument and only you will know what you had up your sleeve that you chose not to use.
• Pay attention to personal timing. The presentation should enhance your case, not take front stage or get in the way. Practice ahead of time to get a sense of whether your timing is compromised during the presentation and adjust accordingly.
• PowerPoint presentations do not have to be all text. It is an ideal medium for visual imagery and storytelling. Use what is available to your advantage in creating compelling arguments. As the adage goes, “a picture is worth a thousand words.” As with any good story, drama must occur at just the right moments. So is true with settlement conferences, mediations and arbitrations. A little technique goes a long way to creating memorable and powerful arguments using multi-media PowerPoint presentations.

Preserving Internet Images

Prior to sending a demand letter related to a Web site, create a copy of the opposing party's Web site. This preserves the Web images as they appeared on a particular date, prior to any changes the opposing party may make after receiving the letter. Exact copies of Web sites can be created for future use using a program like Web Whacker by Blue Squirrel. A second, though less reliable, option is to visit The Internet Archive at www.archive.org. The organization has taken responsibility for capturing old versions of Web sites and has built a digital library for accessing historic copies of many sites. To access previous versions of sites, type the Web address into the search function – called the Way Back Machine. While this method may yield some interesting and fruitful results, it is not the most reliable way to capture old sites since not all versions are saved in the library and not all sites launch properly once archived.

- D. Chad McCoy