The Benefits of Adobe Flash in the Courtroom
By now, virtually everyone is familiar with the Internet. What surprises many trial lawyers is the fact that the technology that powers the interactive Web sites on the Internet is increasingly being used to present evidence and illustrative material in the courtroom. Specifically, lawyers and their trial teams are successfully relying on Macromedia Flash to organize their cases, display trial graphics, create effective 2-D animations, educate judges, and persuade jurors.
The $400 Million Example
Let me offer a recent powerful example. Our client, International Paper, was sued by thousands of homeowners throughout the country for manufacturing allegedly defective siding. After several years of litigation, International Paper resolved these disputes with the homeowners only to discover that its various insurance companies wrongfully refused to provide coverage for such damages. International Paper was forced to sue its insurers for breach of contract and bad faith.
International Paper’s counsel needed to find a way at trial to create a single platform on to which he could organize his case and from which he could display all of his trial graphics/exhibits. He wanted to be able to use this single platform throughout the entire trial—in opening statement, during examination of all of his witnesses (percipient and expert), and in closing argument.
An extremely effective solution was to use Macromedia Flash to create a series of interactive and interconnected “Web site-like” graphics. This solution provided the users (i.e., lawyers and witnesses) with an interactive tool that had four important characteristics. First, it provided the users with access to in-depth information. Second, the users could access this information non-linearly, thereby allowing the lawyers or witnesses to easily jump around from topic to topic whenever something unexpected occurred. Third, the users were able to access various levels or depths of information depending on the specific needs of individual witnesses. So, if a user only wanted to touch superficially on the high points of the case, he could do so. If later in the case the user wanted instead to go into a single topic in greater detail, he could use the same tool to do so as well. Finally, the users were able to present the material (much of which was pretty tedious) in a way that kept the judge and jurors interested, focused, and engaged.
The interactive tool that we created using Macromedia Flash for International Paper initially displayed a 3-D version of a two-story house which the lawyer or expert witness could rotate 360 degrees. At various pre-determined locations on the house we placed “hot spots” that corresponded to a portion of the building about which the lawyer would argue or various expert witnesses would testify. The lawyer or witness could rotate the house, find the relevant section, and click on the associated hot spot. This would bring up an index of exhibits or trial graphics specifically related to that portion of the house (see an Illustration of the house above). By then clicking on a particular entry on the index page, the user could immediately display a copy of that selected material—which included primary source documents, photographs, animations, and virtually any other possible type of trial graphic. Each of these steps was viewable by jurors on a large screen in the courtroom.
So, for example, if the lawyer wanted to talk about window construction, he or she could rotate the building until the illustration showed the appropriate view of the house that emphasized windows, click the hot spot dealing with this topic, and—Voila!—he or she not only had access to all of the documents and graphics necessary to supplement the testimony or argument on this subject, but also was able to electronically display any of this material in any desired order and to any degree/depth of detail.
This Flash-based tool was a complete success. Our client used it throughout the trial, from opening all the way through closing. The result was a powerful teaching tool that helped International Paper win almost $400 million in damages.
Confusion Among Some Lawyers
When I first suggest that a trial lawyer use Flash to create a “Web site-like” set of graphics, lawyers often greet my suggestion with looks of surprise and confusion. I have repeatedly traced their responses back to two fundamental misunderstandings that some people (including many lawyers) have about the relationship between the technology that is used to organize and display content on Web sites and the technology that most people use to access that content. First, many people wrongly assume that the technologies used to create Web sites and to access Web sites are one and the same. Other people have a second misunderstanding. They wrongly assume they can get the benefits of a well-constructed Web site only by using the Internet. In short, people with either of these misunderstandings do not appreciate that the technology (often Macromedia Flash) behind the interactivity, flexibility, and maneuverability associated with Web sites is different from and exists independent of the Internet.
As intuitive as this may seem to technophiles, including those reading this article, these misperceptions are very real to many lawyers, especially senior “first chairs” who actually try the case. Be aware of this potential confusion and be ready to correct it whenever you need to do so. This is a simple misperception, but once it is corrected, many lawyers immediately see a myriad of ways to be more creative and better organized at trial.
Flash Provides Trial Lawyers With at Least Three Advantages
Many lawyers are confused as to how the principles behind a well-designed Web site can benefit the organization and presentation of their cases. In response, I like to point out three advantages that Web sites offer that are entirely consistent with what a trial lawyer attempts to achieve in court.
Flash Created Sites Force You to Refine Your Overall Case
First, Web sites and the interactive tools that Flash allows you to develop rely on a logical and carefully considered hierarchical structure. To better appreciate this, think back to the way that you were taught to take notes or outline a subject in school. Such outlines are hierarchical. At the top of the hierarchy are a series of Roman numerals (I, II, III, IV, etc.), each representing a major topic. In turn each major topic is divided into subtopics represented by capital letters (A, B, C, etc.), which could be further sub-divided down another layer into sections represented by Arabic numerals (1, 2, 3, etc.) As you undoubtedly remember from the times you used such a system to outline a paper or argument, this form continues on until all the necessary information you have has been classified and organized into a format that could be diagrammed to look something like this:
Whether you are aware of it or not, Web sites adhere to a similar format. The home or index page serves as the base upon which the information hierarchy rests. Dispersed throughout this index page are various electronic buttons, each associated with a major topic. These buttons serve as portals and then paths that direct the user along the particular information avenues to sub-topics (akin to the capital letters in an outline) and sub-subtopics (akin to Arabic numbers). In effect by choosing one of the paths, the user can, if he chooses, get deeper and deeper into the nuances and details of the topic—a benefit we will discuss shortly.
This hierarchy does not just spring forth fully formed from the forehead of the person designing the interactive tool. The structure can only be developed (and obviously works best) when someone takes the time to go through a process—a process that forces the creator/user to:
- Figure out what is really important;
- Eliminate what is not;
- Determine how topics are related; and
- Organize these topics in an orderly hierarchy that makes sense and “flows.”
Anyone who constructively uses Flash technology is forced to go through this same process, thereby deriving a double benefit. The first benefit is obvious—the end product itself (ie, the Flash presentation). The second is more subtle but no less important—the process of getting to the end product makes for a better overall case because merely going through the process forces the lawyer to make it tighter, better organized, and easier to follow.
Flash Constructed Sites Allow the User to Move Non-Linearly
The second important feature of Flash is that it allows the user to navigate more effectively because he is not constrained by moving linearly. The advantages to such flexibility are obvious, especially to those who have been forced to watch PowerPoint users flip sequentially in lock-step through a number of pre-set slides in order to adjust to any one of hundreds of unexpected events which arise all too often in any trial. Flash allows the user to potentially go in any order he decides. If the court asks you to unexpectedly move on to a different topic or address a different issue, no problem; if the witness takes an unexpected turn, you can adjust quickly.
There is another advantage to being able to move non-linearly. Specifically, Flash permits the user to use the same platform for a variety of different audiences with varying needs. The user can make a quick overview presentation limiting to the introductory material. Alternatively, if the audience required it, the user could focus on a single section of the outline and go into deep detail.
As an example, in opening, the lawyer could stick to a high level overview and only present the material represented by the Roman numerals. As represented by the above outline, such a presentation would look like this:
Or (remember you do not have to go linearly):
Later when a particular witness took the stand, the lawyer could use the same Flash-based tool to concentrate on a single part of this outline and take it “all the way to the bottom.” For example, this could look like this:
As you can see, the lawyer has completely avoided any of the material under either Roman numerals I or II. In fact, as far as the judge and jury know, this skipped material does not exist and they will not have any knowledge of it unless and until the lawyer decides the time is right to show it to them.
Flash Makes It Easier to Keep the Judge’s and Juror’s Attention
No matter how important your presentation, you will get no benefit if you are unable to grab and maintain the attention of the judge and the jury. One of the most effective ways to do so is to mix the type of material that you display to the jurors. Flash is a very versatile platform that allows you to import and use all types of material. For example, JPEGs, TIFFs, PDFs, and MPEGs can be displayed through Flash. The net effect as far as jurors are concerned is that they see primary source documents, photographs, animations, and virtually any possible type of trial graphic.
The Future of Flash in the Courtroom
As far as the courtroom is concerned, the use of Flash technology is still in its infancy. This is changing and changing rapidly. The increased use of this technology will not be confined to trials. To date, my colleagues and I have designed Flash-based presentations and have had these presentations used at all levels of a case, for example, at Markman Hearings, at mediations, and in crucial pretrial evidentiary motions.
The benefits of Flash are obvious and profound. As with other earlier forms of technology that offered such benefits (such as videos, animation, and electronically displayed documents) Flash will become highly accepted and expected courtroom technology.
This article appeared in the September 2005 issue of LJN’s Legal Tech Newsletter. Laura LeAnn Slate and Marc A. Aure also contributed to this article.
Appeared in LJN's Legal Tech Newsletter
August 31, 2005