HOW TO CONDUCT TRIALS WITH DIGITIZED MATERIALS
Session (2) Number: LJ-07
Title: How To Conduct a Digital Trial Description: Maybe the trial without paper is another Millennium away, but you can reduce the amount of paper and speed up trial by using inexpensive software and scanners in everyday trials? This program is not for the megacase with an unlimited budget. A very experienced team of trial lawyers will show you how they have made striking productivity gains on the cheap.
Date/Time: Friday, March 19, 1999; 8:45 - 9:45 a.m.
Authors: Derek Miller, Bruce A. Olson and Alan J. Steinberg
HOW TO CONDUCT A DIGITAL TRIAL
This article deals with the manipulation of images to be utilized by the attorney for trial work, though there are significant benefits to be gained by image manipulation to lawyers in fields other than litigation. Nevertheless, the goal here is to touch upon the elements of scanning "on the cheap" utilizing the product in pre-trial and trial venues, and what a small law office may expect when jumping into this endeavor.
DAVID WON WHEN HE FOUGHT GOLIATH:
If you remember the story of David and Goliath, you will have some idea of the role you are contemplating when you do your "in-house scanning" compared to the role of the professional service bureau; but let's face it, David won the battle over Goliath. Under appropriate circumstances, you can be a successful David.
WHAT IS A SERVICE BUREAU?
Most of us do not have the equipment or the expertise to effectively and efficiently scan thousands of documents (or exhibits of a non-document nature like photographs) into computer images. Service Bureaus may employ up to hundreds of people whose job is to organize thousands of pages of documents for scanning by special high speed, sheet fed scanners; then passing same on to data entry keyboardists utilizing special monitors whose sole function is to read, review, re-scan and correct, where necessary, the documents that have been scanned. These documents are scanned into networked hard drives using the latest state of the art equipment and highly attuned imaging software. This makes mass quantities of documents quickly and reliably readable in image form, which would be difficult to do if we tried to do the same at our small law offices. Services Bureaus can routinely scan up to 10,000 documents per day and drop them into databases in coded format ready to go to the end user without breaking a sweat.
IMAGING "IN-HOUSE"; WHAT CAN SMALL AND MEDIUM SIZE LAW FIRMS DO IN-HOUSE?
While it would be difficult, if not impossible, for all but the largest of firms to attain the speed and efficiency of a well qualified Service Bureau; in the case of the solo, small firm, and even medium size firms that want to take on the job of "in-house scanning", the job can be done with equipment available today in the local retail computer store or through the catalogues of computer equipment vendors.
An initial decision that must be made is whether personnel is available to do the work. In the solo firm, the answer is that a combination of the solo lawyer and/or the secretarial staff that is available at the time can do the work on a daily basis. This is not an impossible goal. Software and scanners available today would allow for the scanning of many images with only one or two people to do the work. Scanning is not difficult. There are reliable low cost scanners available that cost between $150-$300 that can be placed at each workstation. Some of these even have sheet feed or Automatic Document Feeders (ADF) that work. There are also high speed, multi-page scanners available costing less than $3,000 that can be tied into a network which can handle almost all of your scanning needs. Batches of up to 40 documents at a time can be scanned in just a few minutes. If an inexpensive, flatbed scanner is added to handle outsized documents, photos, and other non-textual items, you can meet almost all of your scanning needs in-house. A live person feeding the documents, images or other materials is recommended, even when using a feeder, just to be on hand to correct paper jams. It also helps if this person is familiar with the file naming system used in your office. However, it is possible to use minimum wage, part-time personnel to do the scanning, which is later properly identified and assigned to your files by a more experienced clerical person or even the attorney on the file.
Another decision concerns the type of scanning equipment the law office should purchase or lease to be used for the in-house scanning jobs. Small firms would undoubtedly consider the use of scanners by Visioneer or Storm Technologies i.e., the PageScan scanner. (Recently, Storm Technologies filed for protection under the Bankruptcy Act. At the time of the writing of this material, is not yet known as to whether they will continue to manufacture and/or distribute PageScan scanners. Storm Technologies acquired the PageScan scanning business from Logitech Corporation which, in it's public announcements, has stated that it intends to concentrate on its core business "Interface Devices.")
The beauty of the PaperPort and PageScan scanners is that they are inexpensive. They each cost between $150.00 - $300.00. These scanners are easily installed in any Windows and/or Macintosh environment. The scanners are fairly flexible given the amount of dollars expended for their acquisition. Each of the foregoing brands have their own fan clubs. The Visioneer has elegant software that links extensively with other office software. The PageScan has a detachable "head unit" that allows the user to scan bulky items, i.e. book pages. All flatbed scanners will do that, (you just put the bulky item on top of the flatbed scanner) but the roll types scanners (except for the Pagescan and similar roll type scanners) will not scan bulky items.
The various types of small office scanners fall into the following categories: The roll type scanner looks like a "bar" or "tube" and is generally about a foot long, and anywhere from 3 to 5 inches in depth, and 3 to 5 inches high. They "plug and play" into the computer by PCMCIA card, Parallel or Serial input. Flatbed scanners are so named because they are rectangular, and are from 12 inches by 18 inches and about 4 to 5 inches high to much larger but in rectangular shape, regardless. They interface the computer in the same way that the other types "interface." There are also the recent "combination" scanner, fax and printer devices similar in size to typical printers, which interface to the computer in any one of the foregoing methods.
In addition, there are larger stand alone scanners such as the HPScanJet that are ideal for higher volume scanning. Running between $3,000-$5,000 (depending on whether you need black and white or color scanning capability), these scanners are about the size of a conventional laser printer. They attach to your network through an ethernet connection, and can be programmed to work with multiple workstations. The documents can be scanned in batches of up to 40 pages at a time, with each batch being sent to the desktop of the person responsible for naming and assigning the documents to a given file. Multiple batches can be scanned in a matter of minutes and sent to the appropriate workstation for further handling. This means the scanner can be used by multiple employees just as a photocopier is shared. Normally, any further processing is a secretarial function, but it is simple enough that even a lawyer can do it. This type of scanner is ideal for scanning briefs, answers to interrogatories, responses to requests for production of documents, medical records, client file materials and the like.
The Scanjet scanners also use the Visioneer Paperport software, so they are compatible with a mixed system of individual Paperport scanners at each workstation with a Scanjet. In an office with multiple attorneys, or in which high volumes of incoming documents must be processed, the mixed system is probably the ideal. The desktop roll scanners can be used for quick scanning of documents of only a few pages, and the larger scanning projects can be handled by the stand alone scanner.
THE SCANNING SOFTWARE:
Scanners are hardware. All computer hardware items need software to make them do what they are intended to do. The software most commonly utilized for the Visioneer and PageScan Scanners are PaperPort and PaperMaster in various versions. Each of these software programs are simple to use and install. The key difference is that the Visioneer has chosen to use a "free viewer protocol" for its proprietary image. Thus, a user may export an image file in Visioneer's protocol, i.e. *.max. If, for example, the user then wants to e-mail the image to an expert or client, the recipient is not required to own anything by Visioneer in order to view the image. All the recipient needs is a copy of the Visioneer Viewer, which may be attached to the image e-mail and installed for free on the recipient's computer. The Viewer for *.max images may be obtained from the www.visioneer.com web site for free. This software also supports the myriad standard formats such as *.doc, *.wpd, *.jif, *.tif, *.jpg, etc.
PaperMaster has no such viewer as PaperMaster utilizes lengthy numbers to code it's images. Thus, if attorneys (or an attorney and an expert, as above) were to be working with images in offices in different locations, wanting to collaborate on the same case, PaperMaster files would have to be exported in one of the other protocols and there is no assurance that recipients of the images will have the same image viewer.
The Database and Trial Presentation programs discussed later in this article will assimilate and effectively display most, if not all, of the non-proprietary protocols, or the scanning software will allow the files to be exported for use with these other software products in a common format.
While the aforementioned scanners scan documents quite effectively, they both will scan in black and white and in color depending upon on the type of document to be scanned, and the choices made by the user. Color images may be scanned in black and white or grey scale. Storage capacity and speed of scanning are affected by the choice of color versus the other forms mentioned above. For most litigation needs, the full color scanning of all images would not be required. Higher quality scanning of color items can be referred out to a copy service like Kinko's. As you become more in tune with the technology, you will also find yourself requesting at the outset that photographs, video and other types of color materials be produced digitally. This will allow you to bypass the scanning of these items altogether.
The scanning formats available for images to be scanned generally fall into the black & white (line drawings), gray scale, and color. If color is needed or the resolution needs to be higher, the scanners are correspondingly more expensive. The scanners have various settings which can easily be manipulated to enable the user to select the color option and the quality by selecting the DPI (dots per inch) at anywhere from two hundred to six hundred DPI. Higher resolutions up to 1200 dpi are available, but for most litigation images 300 dpi is sufficient.
The DPI is a significant issue when it comes to scanning images that have tiny detail. Obviously, the greater the "the DPI" (dots per inch), the greater the clarity of the scanned image. If you are creating group IV tiff images, estimate 20k to 30k bytes of space per page. If you are creating PCX or other non-compressed formatted images, plan on approximately 1 MB per image. For color images, it is recommended that you create .JPG images. They compress nicely and most any viewer will display them.
HOW MUCH DRIVE SPACE WILL THE USER NEED TO EFFECTIVELY SCAN IN-HOUSE???
This question was seemingly relevant just a few years ago. Today with the cost of very large hard drives, one would doubt whether the issue is worth considering. Most of the scanning software on the market today have remarkable compression engines. Therefore, a significant number of pages may be scanned to your hard drive, or a zip drive, without totally taking over your memory requirements. It will be assumed that if a scanning is going to be done "in-house" the results of the scanned images will be recorded on a hard drive (locally or on a file server) or a zip drive. Obviously, all scanned images may be "Burned" to a CD ROM. Generally speaking, however, the more memory you can afford, the better off you will be. Once you accept the process, you will want more and more materials scanned and stored electronically. Thus, it is always better to err on the side of too much memory than too little. (The same can be said about RAM when it comes to the discussion of the presentation of graphics, digital video and the like.)
GETTING THE SCANNED IMAGE FROM THE SCANNER TO THE COMPUTER SO IT IS READY FOR DISPLAY:
How does one acquire the image? Images may be purchased, i.e. anatomical diagrams of the body, for example, or engineering schematics of common "things", i.e. automobiles. Images may be created by the user, i.e. by utilization of a digital still, video or the combination Mpeg cameras. A skilled photographer may be retained to take 360 degree pictures that may be manipulated with appropriate software for "re-creation events" that are breath-taking in reality. This is not a task for the uninitiated, but it is possible with readily available store bought equipment and software.
The typical image, whether text or a picture of some sort, will be "fed" into one of the office type scanners, and saved and indexed to appropriate software for later use. For a trial involving paper exhibits that will be used for display purposes, the user will simply scan the document, check the clarity and accuracy of the scanned image, and then file the image in the software program for use or later export to a trial presentation program.
The beauty of the in-house scanning program is that most trial presentation packages, such as Trial Director, Trial Link, Summation and others, will allow you to easily import a scanned image.
By joining a scanned image with a Trial Presentation Program, a synergistic result is obtained. The user may find a need to utilize many different types of images, for example text, color photographs, sketches, or anatomical exhibits, and import those images into a trial presentation program for display in the courtroom. Even if the user does not have a trial presentation program (which are highly recommended), and alternative and popular presentation program such as the ubiquitous Powerpoint by Microsoft or Presentations by Corel may be used "on the cheap" to present scanned images.
In addition to Powerpoint or Presentations, other software programs of a similar nature such as CorelDraw, PaintshopPro, Photohouse, and many others may be used for presentation purposes and for the creation of charts, diagrams and graphics, all of which can be prepared in-house on a very cost effective basis. Powerpoint, Presentations and the others just mentioned utilize images to present "slides". From a practical standpoint as the number of slides increase and the need to display the slides out of order arises, this type of software is less effective than programs designed specifically for trial presentation. The reason for the limitation is that Powerpoint or Presentations do not lend themselves to a rapid "search and find" for a particular image. In contrast, both Trial Director and Trial Link presentation programs can easily be adapted to a fast "search and find" method by using a bar code and scanning wand for immediacy of display, redaction, and ultra flexible image highlighting and manipulation.
EQUIPMENT OTHER THAN FOR DISPLAY:
What type of equipment is necessary once the images have been scanned to a hard drive? Obviously, while a stand alone computer may be used for litigation purposes, the user contemplated by this program is one who would ordinarily use a laptop that is sturdy and dependable, and has sufficient memory to hold a sufficient number of images along with display software such as Powerpoint, Trial Director, or Trial Link. The use of a laptop with a docking station is an excellent way to take advantage or your network resources while in the office, and at the same time it allows you to take everything you need on the road. If you are in trial, you should always have a backup, and a second laptop is an excellent way to cover this need. Indeed, we recommend that two laptops be used, one for presentation purposes and the other for your trial notebook. Both should be "cross backed up" so that if one fails, you can do everything you need on the other. It may not be as easy as using one laptop for the jury and one for yourself, but it beats the alternative of a return to the paper based file.
There are many "tools" for using the images scanned into your computer. Multiple computer monitors can be arranged throughout the courtroom and run off a single laptop. The ubiquitous data projector is a highly recommended alternative for projecting images that the attorney wishes to bring before the judge and jury. Projectors are portable, capable of multiple input devices (i.e. S-video, NTSC (VHS), audio and multiple computers) and do not require a decree in technology to hook them up. Technological advances in data projectors are making them a very appealing piece of equipment to rent or own.
There are two key variables in selecting data projectors: lumen rating and resolution. The lumen rating is a standard measurement of light. The higher the measurement value, the brighter the light coming out of the projector. You may have attended a seminar or presentation where the lights had to be dimmed so that everyone could see what was on the screen. The cause of this is insufficient lumen output. There aren't many judges who will allow the courtroom lights to be dimmed so that jurors can see what is on the screen (they have a hard enough time staying awake). Many of the more portable projectors will have a lumen value between 500-750. The recommended minimum lumen value for courtroom usage would be 1000+. Please note that many of higher lumen projectors also create immense heat and need to be cooled. Fan noise can be a distraction and cause auditory problems for everyone in the courtroom. Make sure that you test the projector in a courtroom before installing it for actual use.
The second variable in selecting a data projector is the resolution capability of the projector. Like data monitors, the higher the resolution, the finer and cleaner the display of text, photos, video, etc. The minimum recommended display resolution for use in the courtroom would be 800x600. Make sure that the projector is not scaling the resolution up to 800x600.
Images may also be viewed by utilization of flat screen panels or "light boards". These devices are flat screens that take the place of a monitor or projection screen. Some light boards are panels that are electronically sensitized to mimic the attributes of a touch screen, and can actually be "drawn upon" using special hand tools, all of which are utilized for purposes of emphasizing the evidence or drawing attention to a given point. Some light boards project internally from self-contained electronics. The larger light boards are screens which have rear projection media and can exceed ten feet. 72" diagonal is the largest light board available. Many of today's "SmartBoards" come equipped with a printer that will produce a hard copy of anything that is on its screen. If it is equipped with a video printer, you will only be able to print on a 5"x7" piece of film. Some of the new printers are inkjet and produce hard copy on 8 ½" x 11".
It is always wise to consider the economics or renting versus purchasing the presentation equipment described in this material. There are many sources throughout the country where such equipment can be rented. For a typical three day jury trial, it is probably more economical to rent. However, the cost of extra laptop computers with light pen capabilities, appropriate trial presentation software, flat screen panels with the old standby overhead projector, or the newer and more desirable data projectors, like the computer industry in general, have all been subject to price reductions. The foregoing are generally within the reach of small law firms. Large white boards (light boards), or multiple large computers monitors in quantity for use in court are questionable for small firm ownership due in part to the frequency, or lack thereof of their use. The downside, of course, is that such equipment becomes obsolete rapidly. That is why the cost benefit analysis of renting or owning should always be made.
YOU CAN LEVERAGE THE TRIAL PRESENTATION PROGRAM IF YOU COMBINE IT WITH A LITIGATION DATABASE PROGRAM:
The utilization of database programs such as those in "Summation" and "Concordance", and others like them, are really what make in-house scanning worthwhile and highly effective. While none of the authors have used Concordance in a litigation setting, the research undertaken indicates that the programs are similar in many respects. The basic import of a scanned image from the scanner to the hard drive is what one would do when scanning any image. Place the document into the scanner, scan, save and identify.
Typically, a name or number would be used to identify the document scanned. The image, while saved in a proprietary image form, may then be exported or converted to a Tiff IV image by the Save As feature of any of the software discussed in this article. The user would then open the Database program, i.e. Summation or Concordance and import the scanned image in the Tiff IV format and save same to the data base in a directory aptly named. This process would be repeated until all of the images have been scanned, identified, converted to Tiff IV and imported to the database. Once this is done, the Database tools are used to complete a Form created by the user and the fields of the form are filled in by the user. Thereafter, the forms are indexed, (Blazed in Summation and similarly indexed in Concordance) so that the search engines can find the respective images when searched. Each Database program has unique display attributes that would allow for projection using any of the projection devices discussed in this article.
Additionally, there is another threshold decision to make. If your litigation matter is limited to the use of 10 or 20 images for use in the trial, these few images may be adequately managed by the user without sophisticated database programs. However, even the small firm attorney will, on occasion, be confronted with a case with exhibits that number in the hundreds, a large part of which may be imaged in-house, coded and stored in a database for utilization. When databases reach images into hundreds typically the user needs to rely on some management program to enable the user to utilize the image in the most effective manner. Database programs allow descriptions to be attached to images. Descriptions may fall into many categories. Attached hereto is an article that appeared in the Litigation Apps Newsletter published by the American Bar Association, Law Practice Management Section, and is being reproduced with permission of the publisher. The utilization of the database when combined with a Trial Presentation program allows the attorney to manage effective control over the evidence.
What does the protocol mean to the user? Utilization of various types of software to achieve an end result of image display requires several steps and may require the use of several different software programs. It is incumbent upon the user to make certain that the money expended for acquisition of the various software programs "speak to each other". The above protocols should, therefore, be reviewed in that light. We need not revisit here the story of The Tower of Bable to see what happens when one cannot communicate to another. Mind your protocols. (See Footnote #2.)
For example, when users scan an image to the user's hard drive, utilizing the scanners respective scanning program, the resulting image may be exported directly to a database program such as Summation if the images are in the Tiff Group IV format:
Similarly, when users scan an image to the user's hard drive utilizing the scanners respective scanning program, the resulting image may be exported directly to a Trial Presentation program such as Trial Director, if the images have the following extensions:
*.bmp *.gif *.ras *.tif *.ico *.tga *.pcx *.msp *.wmf (raster based) *.jpg *.psd *.pdf *.pcd *.vzn *.fpx *.html *.pict
Trial Link will recognize the following extensions: *.vzn, *.tif, *.bmp, *.pcx. One limitation of Trial Link is if you are attempting to add group IV tiff images, it is not an easy process. Trial Link uses a modified Group IV tiff image with the *.vzn extension that is proprietary and must be created using an authorized VZN capable service bureau.
Concordance will recognize the extensions and protocols identified in this discussion. As noted, while none of the authors of this article have had first hand experience with Concordance, our research has led us to conclude that the usage of Concordance with "in-house" scanning will work just as well as Summation. In this instance, the choice belongs to the user and is generally made upon very personal reasons.
By utilizing a protocol that is recognized by your corresponding Trial Presentations and/or database program, it is not difficult to scan an image, describe it, code it and be ready to use it for trial, or for trial preparation.
IMAGES DON'T HAVE TO BE SCANNED:
Matters of Text Presentation Discovery
a. LiveNote b. Gravity Verdict c. Summation d. Others
Each of the Real Time Text Discovery programs are capable of projecting their image via a Data Projector to viewers. The text can be exported from any of the Real Time programs into either a Database program, or a Trial Presentation program. If the text of a witness' testimony would be significant as, for example, an admission, the text and highlights, if permitted, may be exported from the Real Time program into either of the foregoing for display to the intended viewers. Many of the different Real Time programs can import and export their competitors formats with the highlights and notes that were created at the time of the digesting or deposition.
ORGANIZING THE TRIAL NOTEBOOK
Ultimately, to use the scanned images effectively in court, you must have a way to organize them. Since most trial lawyers use some form of a trial notebook, we will assume this is the format to use. Thus, the question arises, what is the most effective way to create an electronic trial notebook? Obviously, you can use a word processing program and create all of the outlines you need. You can even organize them into appropriate folders using Windows, and with Windows 9x you can use the extended naming function to use normal English in describing the folder and its contents. Unfortunately, you cannot immediately link the images of the documents you want to use to the text in the file. To do this at the most basic level, you need a document management program that will allow you to organize multiple documents in various formats into one folder.
Worldox is a program that allows you to combine various file types into one folder, and to create multiple folders in one case file. When you select the document you want, this software will allow you to automatically open the file in Word, WordPerfect, Paperport, Powerpoint or the many other supported file formats. A case will be identified by name, and subfiles or libraries can be created for voir dire questions, opening statements, multiple witness outlines, exhibits, etc.
An even more powerful tool to organize your trial notebook can be found in Summation's Case Organizer. This module of the Summation Suite allows you to create folders in which you can create outlines for jury questions, witnesses, exhibits, etc. This software has the added advantage of being linked to the Summation Deposition Transcript Viewer and the Summation Database. You can readily drag and drop portions of transcripts, images of documents in the database, summaries of testimony or of file materials into the case organizer. Furthermore, Summation integrates with TrialDirector presentation software to allow the easy organization and then presentation of multiple forms of data at trial. Trial Director also comes with its own organizer that allows the user to prepare notebooks with thumbnails of the images, description of the image and a barcode to recall the image.
You might think that scanning in-house is still too complex and confusing. We disagree. The equipment is affordable, (cheap) and the software has reached a user friendliness factor that will facilitate the implementation of our suggestions right in your law office. Yes, you will still have to learn the primary scanning software just to learn how to scan, save and convert images to desired protocols. Yes, you may choose to learn some of the ancilliary programs, i.e. Trial Director, Summation, Concordance, if you want to move to the next level. But, chances are that many of the readers of this article will have used or have familiarization with one or more of the ancilliary programs from their litigation practice using Service Bureaus for scanning.
Various surveys and post trial inquiries with judges and juries show that visual aids are very effective to the administration of justice. The court system will generally encourage any process that will speed the trial. Most attorneys understand that control over the facts helps win cases. The tools we have laid before you help the attorney to gain control over the facts and provide the machinery for convincing and effective displays to the target audience. The authors unanimously agree that the use of the tools discussed herein are not only interesting but fun to use, as well. There is a "Gee Whiz" factor in utilizing imagery to one's benefit. We are not suggesting that every "in-house" event will be or should be a "Star Wars" event. We do suggest that with proper utilization, your client may think you are a star and "the force" can be with you.