Technology On Trial
Something Old, Something New
By David Horrigan
ON October 24, 1998, seven men burned to death and four were injured when a gas well exploded in an oilfield in Bryceland, La.
Two Distinct Styles
** Plaintiffs **
Gerald "Tracy" Johnson III
The Johnson Law Firm
Lou Getz and Trevor Brock, Legal Media Inc.
Hardware: Macintosh PowerBook G4, iBook SE.
Software: inData Director Suite; Summation; FileMaker Pro 5.0.
** Defendants **
H. Dwayne Newton, Nelson, McCormick, Hancock & Newton; Michael Bagot Jr., Thomas Rayer Jr., Wagner & Bagot
Marshall Wilson, Marshall Wilson & Associates (model and animation). Jim McNee and Rody Kuchar, McNee Productions Inc., (video). Steve Schuller, Lexus Video, (courtroom video and DVD). IKON Document Solutions.
Hardware: Sony DVP-S560D DVD Player
Hewlett-Packard ScanJet ADF Scanner.
Hardware: Dell Inspiron 5000 laptop
IBM ThinkPad. Samsung SVP-6000 Visual Presenter. Audio: Mackie Mixer, Anchor Speaker. Panasonic DS 555-VHS VCR. Matrix touchscreen switcher. Three Pioneer 50-inch plasma screens. Four ViewSonic 15-inch flat panel monitors.
Software: inData Director Suite; Microsoft PowerPoint; Adobe PhotoShop and Illustrator; LiveNote; Flash MacroMedia.
The next year, a negligence suit was filed (Miller v. Sonat Exploration Co., No. 1999-03588, 295th Judicial Dist. Court, Harris County, Tex.) on behalf of some of the victims. Defendants included Sonat Exploration Co., the owner of the well, and Cudd Pressure Control, Inc., a subcontractor that had employed a drilling process called "snubbing."
After a settlement with Sonat, and after a mistrial due to a hung jury, one family remained (with three victims). They continued on to a second trial, which began in September, represented by Gerald "Tracy" Johnson III, of The Johnson Law Firm, of Kingwood, Texas. Cudd was represented by H. Dwayne Newton of Houston's Nelson, McCormick, Newton & Hancock; and Michael Bagot Jr. and Thomas Rayer Jr. of New Orleans' Wagner & Bagot.
The plaintiff and defense teams took two very different approaches to courtroom technology as they attempted to sway the jury.
In round two, Tracy Johnson needed to show jurors an extensive amount of videotaped deposition testimony during the six-day trial, including excerpts from about 60 video depositions. But Johnson faced possible constraints on admissibility of some of the material -- and he envisioned a nightmare of rewinding, fast-forwarding, pausing, and muting while trying to argue his case.
He sought advice from Lou Getz and Trevor Brock of Houston's Legal Media, Inc. Because of the massive amount of video, Getz and Brock recommended inData Corp.'s "Director Suite" software (now known as "TrialDirector Suite 3.0"). The suite consists of three modules: "TrialDirector," "DocumentDirector," and "DepositionDirector."
Using "DepositionDirector," Getz and Brock were able to digitize the extensive amount of video footage, along with displays of the deposition print transcript. The digitization process allows "on-the-fly" editing, and easier maneuvering than possible with traditional video.
Searching for specific parts of a deposition is much easier, explains Brock. The software incorporates multiple search tools. For example, attorneys can skip easily from one section of the deposition to another, rather than painstakingly fast-forwarding and rewinding in the courtroom.
Lou Getz, left, and Trevor Brock, of Legal Media Inc.
In fact, searching for and playing specific sections was "just as easy as highlighting sections of text in a word processing application," says Brock.
The suite allowed the plaintiffs' team to react to last-minute judicial rulings on admissibility, a major advantage of computerizing the videos, they said. With digitized video, the team could edit quickly, avoiding awkward fast-forwarding or muting of inadmissible sections.
"It also solves the problem of rushing back and forth from the office to the courthouse to edit tapes and spending late nights in tape editing sessions," Brock said.
Using "Document-Director," exhibits can be loaded into the software, and then easily displayed via courtroom monitors, including documents, correspondence, maps, charts, graphs and photos. Text also can be highlighted, in multiple colors. The system also allows users to take advantage of a variety of multimedia formats, including MPEG1, .wav, MP3, AVI, Quicktime 1 and Quicktime 2.
Using the "TrialDirector" module, the Legal Media team was able to show the video and transcripts quickly and easily in the courtroom, they explained. Getz and Brock loaded the software onto their laptops, which were connected to three Pioneer 50-inch plasma screens -- two for the jury and one for the gallery. They also showed their presentations on four ViewSonic 15-inch flat panel monitors -- one on the witness stand and four on the counsel tables.
The program, says Johnson, proved to be cost effective -- so much so that his firm purchased several licenses, he said. "For one small case, it might be cost-prohibitive; but, over the life of the firm, it pays for itself."
For Johnson, the only drawback to the software is that he can't use it with his Apple system. To use it, Johnson had to use Legal Media's equipment. "If only it were Macintosh-compatible, it would be absolutely perfect," he said.
Although Legal Media, Inc. was Tracy Johnson's trial technology consulting firm, they also assisted defense counsel Dwayne Newton, as part of a cost-splitting agreement between the parties. Legal Media used a "matrix switch" touchscreen system to toggle between the plaintiff and defense teams when each wanted to display exhibits or show video or animation.
A defense 'snubbing' model
But by contrast with Johnson, Newton did not make extensive use of the available technology. Instead, he chose a more traditional approach. For most of his exhibits, Johnson relied on traditional "foam board" blow-ups, which were prepared by the Houston office of IKON Document Solutions. (Newton did use the computer system to show a photograph and to run an animation that illustrated how the "snubbing" process worked.)
Newton explained his philosophy: He wants tangible exhibits that jurors will see not only once, but will continue to see, throughout the proceedings. He prefers exhibits that can be carried into the jury room.
"Images on a screen go away. Jurors can't see them once they're removed from the screen," explained Newton. Jurors did not have a video display in the deliberation room, but did have some of his demonstrative exhibits, he observed.
"There's a big advantage when those blow-ups are leaning against the wall in the jury room. The jurors continue to see them and remember what's on them," Newton says.
Enlarged exhibits weren't the only items Newton was able to get into the jury deliberation room. Newton contracted with Houston architect Marshall Wilson, who constructed a model of the well device that was central to the litigation.
"The advantage to the model is that it engages all the senses, not only can jurors see it, they can touch it as well," said Wilson.
From the defense animation
Nor was Newton completely adverse to the use of computers and video monitors. He contracted with Wilson and Houston's McNee Productions, Inc. to produce an animation and video of the snubbing operation in progress.
The trial ended on October 4, 2001, with the jury finding Cudd 45 percent liable and awarding damages of $14.7 million. However, because the award did not exceed the amount of the settlement with the other defendants, Cudd may not have to pay any money. That issue is pending.
David Horrigan is contributing editor of The National Law Journal and Law Technology News, and is the editor of American Lawyer Media Inc.'s ABC News Trial Bulletin.