I was bound and determined not to remain a techno dinosaur before the close of the 20th century. In late October through mid-November, I jumped in with both feet. I tried a month-long employment case against the District Attorney's Office where I had an opportunity to use some of the latest trial technology: scanned and barcoded exhibits, video excerpts on CD, trial software which allowed me to blow up (on the fly) excerpts from any exhibit, and highlight or display side-by-side comparison of documents.

It's interesting how the dynamics of the presentation of evidence changes. Once admitted, evidence is then presented to the jury, as well as opposing counsel, the witness and judge, during examination or cross-examination. Impeachment testimony from videotaped excerpts on CD-ROM can be called up seconds after a contradictory statement is made on the stand.
Extremely effective. Interview with jurors post-trial confirmed the effectiveness and helpfulness of the technology.

Three questions immediately come to mind when using this type of technology: How much does it cost? Is it recoverable? How hard is it to use?

The technology is extremely affordable. Because this was my first experience with this type of trial presentation, I rented all of the equipment and software. The total cost for renting an LCD projector with a 100" screen, two monitors, a switcher/amplifier, trial and war room computers with barcode readers, "Trial Director" software for one month, plus all the video editing and encoding ran approximately $6,000 (recovered under CCP §1033.5(c)(4)). The cost for scanning one set and printing out two sets of exhibits (2,911 pages each set) was approximately $700 (recoverable under CCP§1033.5(a)(12)). The cost to videotape ten key depositions was approximately $3,500 (recoverable under CCP §1033.5(a)(3)).

As the prevailing party on a FEHA cause of action, I moved for attorney's fees and costs pursuant to Government Code §12965(b). "In actions brought under this section, the court, in its discretion, may award to the prevailing party reasonable attorney's fees and costs, including expert witness fees...." All of my attorney's fees and costs, except for $300 in photocopying charges, were granted.⁽¹⁾

The three prominent cases regarding "high-tech litigation" costs are Science Applications Int'l Corp. v. Superior Court (Dept of Gen. Services) (1995) 39 Cal.App.4th 1095 (expenses for compiling, organizing and storage or retrieving documents, whether incurred in the form of paralegal assistance or computerized databases, are not recoverable); Ripley v. Pappadopoulos (1994) 23 Cal.App.4th 1616 (rental of an overhead projector was a recoverable cost under CCP §1033.5(a)(12)); and Nelson v. Anderson (1999) 72 Cal.App.4th 111, 133 (the trial court disallowed prevailing party's expenses related to the use of tapes and laser discs).

In SAIC, a 1995 case, the Fourth District Court of Appeal observed:

"We are troubled by review of a case in which a party incurred over $2 million in expenses to engage in high-tech litigation resulting in recovery of only $1 million in damages ... If a party litigant chooses unwisely to expend monies in trial presentation in excess of the value of the case ... when more conventional if less impressive methods are available, the party must stand his own costs." SAIC, supra at page 1105.

In 1995, the cost of high tech equipment and software was significantly higher than it is today. The costs which the trial court initially granted "consisted of $200,000 for document control and database, $57,969 for graphic exhibit boards, $101,908 for CHP video, $106,068 for nine experts, $47,481 for laser disks, $9,916 for graphics communication system, $11,983 for a technician and $35,652 for editing excerpts of videotaped depositions." SAIC, supra at page 1106, fn. 3. The Fourth DCA disallowed all the costs except for the exhibit boards⁽²⁾ and the CHP video. Compare the SAIC costs to those incurred in my case: $6,000 for all the audio-visual equipment, hardware, software and video editing.

The Nelson case, which at first blush seems in line with the SAIC case, has some distinguishing characteristics. The Nelson court found:

"It is certainly not inappropriate for a party to choose cutting edge technology to present its case to a jury. But that does not mean that it can automatically pass the high cost of that technology to the other side, especially when it is used only sporadically during the trial, and when many times when counsel attempted to use it, they were unable to and reverted to traditional 'low tech' methods for presenting the evidence." Nelson, supra, at page 133.

Trial counsel in the Nelson case used the technology "sporadically" and reverted to low tech methods when they were unable to use the high tech equipment. In my case, I used the technology for virtually every exhibit and with almost every witness. Not a day of my month-long trial went by when I didn't use the computerized equipment. If I had reverted to "low tech" methods to display exhibits, such as 2'x3' foam core blowups at $35 each for black and white copies, it would have cost my client approximately $7,700.⁽³⁾ That figure doesn't include the portions of certain exhibits I was able to blow up and highlight spontaneously during the testimony, which in a low-tech setting could only be partially accomplished by anticipating and then preparing blowups of exhibits ahead of time. In certain circumstances, the traditional method of presenting evidence can end up more costly than its high-tech counterpart.

As for its ease of use, all I had to do was point and shoot. Fortunately, I have a computer-literate paralegal who barcoded all of my witness outlines to display exhibits and video testimony. For the most part I would call up the exhibit or video excerpt that I wanted with my barcode reader, and my paralegal would manipulate the screen to enlarge or highlight portions of exhibits by simply dragging and clicking from her station in the courtroom.

As the cost of scanning (currently 12-15 cents per page) and equipment decreases, and the capabilities of storage media increase, "high tech" computerized trial equipment will become the affordable and preferred method of presenting evidence to a computer-literate generation of jurors - even for us techno dinosaurs.

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(1)Given the current status of the law with respect to recoverable costs, I did not believe I could recover the cost to "burn in" all of the exhibits and video excerpts onto CD. It falls under the category of "storage," which is not a recoverable cost pursuant to the SAIC and the Nelson cases. This totaled roughly $500.

(2)CCP §1033.5(a)(12) states: "(12) Models and blowups of exhibits and photocopies of exhibits may be allowed if they were reasonably helpful to aid the trier of fact."

(3)During trial I used a 100" screen to display exhibits, which was significantly larger than 2'x3'.