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Recent research on the role of technology for lawyers recognises that lawyers need to be communicators above all else. Litigators are also the biggest users of computers. The number of documents in some major cases have led the courts to direct mandatory use of computerised support. Many whose practice involves large cases would not consider proceeding without computerised document control and transcript analysis systems.
However tools which help get the message across have been largely ignored. In 1986, the UK report of the Fraud Trials Committee (the 'Roskill report') suggested that counsel must adopt new techniques of presentation as and when they are developed. If the prosecution does not do this, it was advised that it could be forced to do so. The recent collapse of the second UK fraud trial centring on Guinnes Plc prompted the judge to suggest that "we must find a cheaper and quicker way to deal with serious fraud trials." Society now demands that solutions not be limited to fraud trials but be extended across the whole field of the law.
US litigators have taken the lead in recognising the limitations of the spoken word. Much more information is understood and remembered when graphics support oral submissions and evidence. Diagrams are now often used to help explain complex situations. Computers can design these diagrams to improve the quality of the output and expedite the drawing process.
Graphics increase the amount of information that can be put before a court. The problem remains with complex diagrams of how not to overwhelm the audience on first viewing. For example, a chart made up of numerous entities through which money is alleged to have been moved can be too much for juries and the judge to absorb by the time the various amounts and the lists of exhibits supporting these transactions are included. The sheer volume of information that needs to be communicated proves distracting when Counsel tries to focus on any one part. Just like long sentences, charts need to be broken into digestible pieces.
ShowCase Systems has found that one solution is to use the power of the computer to design diagrams and to project them onto a large screen in court in small bites. Instead of showing the whole diagram, we start with a blank screen and use the interactive power of the computer to reveal it bit by bit. Showing one entity at a time lets the audience easily absorb the growing structure. (Go To Image 1)
To show what amount went from Company 'A' to Company 'B' on our system, simply click on the arrow between the two and the amount appears on the arrow. Supporting this claim that money moved from one company to the other are the exhibits. To show the exhibit list the mouse is clicked on a spot next to the money.
To see any of the exhibits (which have been scanned as images and placed 'behind' the main diagram), the user clicks on an exhibit number and the image of the cheque or deposit slip etc slides onto the screen. Zooming in on a signature, date or amount is easy.
When finished, the exhibit is put away; the exhibit list and even the amount of money may be hidden with the click of the mouse. Counsel may follow the money trail to the next transaction involving Company 'B' to Company 'C', without a cluttered screen.
The process flows effortlessly. Counsel or the witness don't have to wait while the jury finds a particular exhibit among the many they need to examine. UK studies have shown that it takes an average of 3 minutes for juries to find an exhibit. Not only can it add up to months of court time, but it disrupts the logical flow of counsel's arguments.
Before anyone gets carried away with issues relating to the possibility of an 'unfair' advantage provided by this complex and powerful technology, focus instead on the results of presenting the material - simply. From the jury's perspective they are shown a chart on a screen nearly all of which is covered by an electronic equivalent of yellow 'post-it' notes. These are taken off one at a time to reveal the diagram's basic structure. Other parts are revealed and then covered again. Exhibits are shown one at a time. There is no magic or unfairness involved, as the members of the jury will be given paper versions of the same diagrams soon after the interactive "slide-show" is over.
An amusing article "Guilty? Some of us will sleep on that" by a judge's associate tells how in one case the instructing solicitors were shuffling briefs to keep themselves awake, five of the jury were asleep, and finally with counsel "dron(ing) on and on", one of the court assistants who had fallen asleep loudly interjected "THAT COULD BE SO!" He awoke to find he'd obviously missed a good joke.
This situation highlights how the new graphic technologies can improve the progress of a trial. Unlike listening to longwinded addresses, people are used to receiving visual images from electronic sources such as the TV, and for hours at a time. In court they are not likely to be adversely affected or even intimidated by the use of sophisticated technology. The efforts made to ensure that visual information is relayed in a simple and convincing manner are hidden from them. They are much more likely to be attentive and to retain information, especially of convoluted interrelationships, than if no electronic graphic representations were used.
5 Suitable for Big & Small Cases
Making the facts understandable in a short period of time is probably the biggest challenge in complex commercial litigation and white collar prosecutions. Complexity is not limited to major cases. Nor should graphics in support of evidence or submissions be limited to complex cases. We have had considerable success with charts and pages from contracts presented graphically before short arbitrations.
Progress is being made with the acceptance of the technology described above. It did not cause a panic in a recent Federal Court hearing when both sides and the judge used computers for transcript. The accused accepted the technology because they were keen to reduce the length of the proceedings. Encouragingly, counsel was willing to adopt these new presentation techniques when the opportunity arose, despite the new challenges involved.
While the jury might not realise the length of their own 'sentence', interactive graphics make it less arduous for all by reducing the alienation engendered by the length of the case. More importantly, less evidence would go over their heads, particularly if they are not driven to sleep by a tedious spoken monologue.
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