Trial Support Teams: An Integral Component Of Firm Litigation Strategies

Editor: Please tell our readers about your background in trial support.

Ficocello: I have been involved in the field of litigation support and technology for more than 10 years. After founding my own Florida-based litigation technology company, I worked with law firms around the country as an independent trial consultant. Several years later, I accepted the opportunity to join a firm in Philadelphia, managing the litigation practice technology and support needs for all of their offices. After four years, I then transitioned to the Akin Gump Washington, DC office, where I now serve as the director of Trial Services for the firm’s many offices around the world. I travel extensively to work on-site with my staff and the various trial teams, and we provide our support from start to finish.

Editor: What challenges did you face in setting up a trial services resource internally for Akin Gump?

Ficocello: There weren’t any real hurdles or challenges at the firm; they were very receptive to establishing this resource because they have a very strong belief in the benefits of technology within a legal practice. Probably the most significant challenge in this field overall, for both vendors and law firms, is that the talent pool is extremely small – a classic niche market. Thus, my biggest task was to find the most qualified individuals to join our Akin Gump Trial Services team, which now boasts 35 years of combined experience.

Editor: Are there institutions that offer courses – or any formalized instructional media – in this area?

Ficocello: Not to my knowledge. The difficulty is that while there are formal education and training programs for graphics, media and computer software applications, the greater challenge is the integration of these skills with a full understanding of the needs in the legal industry and, specifically, the requirements of trial. In our department, at any given time, we not only assist attorneys in creating presentations, graphics, medical illustrations, 3-D animations and models, but we are also managing the logistics in the court room, war room set-up, and more. I am not aware of any educational program that provides this type of training. The best way to learn is from practical experience within the legal profession.

Editor: Do firms go through the same trial-and-error process in selecting the best third-party resources?

Ficocello: Yes, vendor selection can be a real challenge for firms that don’t have these functions in-house, because quality standards vary widely throughout the world. Some vendors advertise services, but don’t deliver as promised, so bringing this resource in-house allows a firm to vet everyone’s talents, establish base lines and provide consistent and quality training. That way, when a trial services team member goes on-site, the firm knows exactly what to expect.

Editor: What types of trials require the greatest use of complex technology?

Ficocello: Three practice areas typically require the most complex litigation services and technology. The first is intellectual property, including patent litigation, which is time-consuming and may involve high-skill services such as 3-D modeling and animation. The second area is labor and employment law, which involves an extensive use of charts, timelines, graphs and other graphics to visually present the case. Finally, bankruptcy litigation requires managing large databases and document data sets, then presenting them in court via trial presentation software.

Editor: Are most courtrooms equipped with projectors, screens and other technology?

Ficocello: The availability of equipment is inconsistent, though many federal courts are currently working to update their technological capabilities. Some Texas courts, for example, offer a more or less “plug-and-play” environment while other courts in large cities curiously have none. In these cases, we either rent or bring our own equipment on-site, depending on the location.

Editor: What is your strategy for producing an effective courtroom presentation during a trial that involves a complex or technical matter?

Ficocello: A good example involves taking a 500-page patent file wrapper that demonstrates a significantly complex piece of technology and distilling the information - with clarity - to a 30-second animation or movie clip, at the direction of the trial team. We assist attorneys in bringing to life the essential message, even in the most complicated situations, to enable a jury to understand subjects ranging from organic chemistry to the workings of a jet engine. An average juror may or may not have a PhD in rocket science, so the legal team’s challenge is to present information as simply, directly and clearly as possible within the limited time available.

Editor: Do you rely on the litigators to help you understand a technological issue, or do you consult outside experts?

Ficocello: As the primary resource for technical litigation support at Akin Gump, we provide the trial team with the technology tools and assistance needed to bring to life a precise message in a compelling manner. We also work with outside experts on graphics or presentation materials, but we take our primary guidance from the attorneys and the trial team.

Editor: Why are graphics an important persuasive tool in the courtroom?

Ficocello: Scientific research has proven that the human mind processes visual information about 400,000 times faster than written text; thus, a graphic presentation allows jurors to process information more quickly and efficiently than displaying page after page of written text. For trial teams, such visual tools provide a unique advantage in communicating case-related data and analysis.

The use of courtroom technology also has been popularized by mainstream media – what we call the “CSI effect.” Jurors enter the courtroom having watched television dramas and depictions of how DNA evidence or scientific information can be conveyed; thus, juries have an expectation that technology is at everyone’s disposal and will be a part of the trial process. When educating jurors of certain propositions, it is important to educate them about the issues and concepts involved. The use of visuals in the courtroom can be a powerful tool. Graphics do not change facts, but they can clarify and best represent the facts to support a point of view or legal strategy.

Editor: What are some specific courtroom technologies, and what presentation strategies work best to ensure that the jury can effectively recreate the presenter’s original mapping of media-generated visuals to the spoken word?

Ficocello: Current technologies combine audio and video elements and leverage successful traditional strategies, such as charts, timelines and graphs, resulting in today’s 3-D animation or Adobe Flash presentations. These compelling technologies are particularly helpful for patent cases or situations involving highly complex scientific information. The strongest methods combine high-tech, commercial grade tools – such as LCD screens, sound systems and displays – with what we call “analog” methods – such as print boards and flip charts – that are still effective educational tools. As a specific example, video is a very effective method of capturing and presenting depositions; thus, it has become the preferred and pervasive courtroom media for this purpose.

Editor: What benefits do Akin Gump’s clients enjoy as a result of the firm’s team of internal experts?

Ficocello: The greatest benefit is an efficient work flow that enables our attorneys to start the litigation process simply by walking down the hall or picking up a phone to arrange a project conference that same afternoon. The easier in-house work flow also translates into a cost savings of 20 to 50 percent versus the current marketplace, and it allows the firm to offer an overall litigation cost structure that is not dependent on a specific client or location. Clients also enjoy lower costs because these services do not have to be outsourced.

Editor: Describe the cost savings realized by your clients – we understand as much as half a million dollars – in 18 firm cases conducted between May 2010 and April 2011.

Ficocello: Having an in-house team creates economies of scale, and our clients enjoy significant savings versus the obligation to pay market rates for outside vendors. We are Akin Gump employees, thus there are no retention agreements, fees, contracts or deposits to begin a project.

Editor: How does the trial support team accommodate the firm’s global offices?

Ficocello: Fortunately, before our department became operational, Akin Gump had already made a strong commitment to – and investment in – technology, such as networking, remote desktops and administration systems. Our team can work remotely from any location that has an Internet connection, which is critical to our work with global offices, for example, in China or Moscow and among our U.S. domestic practices based on both coasts. Technologies such as video conferencing provide us a virtual presence and enable productive collaboration firm-wide.

Editor: Please describe the use of courtroom technology in most cases.

Ficocello: Our work on most cases begins on the logistics front, using our own war room and courtroom equipment but, ultimately, involves much more than just hardware. Every case is unique. Our trial presentations could include the visual presentation of high-end audio equipment – depicted via pen-and-ink illustrations created in Adobe Illustrator – that could be displayed during an opening and closing statement or during expert testimony. The level and depth of the technical services we provide varies on each project.

Trial presentation software that uses database and document management systems allows us to scan tens of thousands of pages into the computer, code them and make them available for instant recall in court. During trial, teams need only to ask to display “Defendant Exhibit 232,” and we can instantly project that document on the screens in the courtroom. Many trials also require a significant amount of in-house video and audio editing, so they are often technology intensive from both the logistics and the media perspectives.

Editor: What new technologies do you see on the horizon?

Ficocello: First, we anticipate mainstream adoption of software that was once overly complicated and expensive. The newer versions are more consumer friendly - easier to use and to teach, with application packages that are accessible to attorneys or trial teams at all technological skill levels. One example is Google SketchUp. Ten years ago, no attorney would have imagined having desktop access to 3-D modeling packages or other advanced technology, such as CAD software. These types of programs and software have become a lower-cost advantage that is accessible and that enables a meaningful collaboration between the Trial Services team and our attorneys on the ground.

Second, we expect widespread future use of tablet-based computing, with iPads and other portable devices becoming mainstream technology in some law firms. These devices will play a significant role in trial presentation and the use of technology moving forward, likely expanding to use within the courtroom as the actual hardware for displaying media and presentations. Development of this will be largely dependent on the attorney’s level of comfort with the device, and while tablets are gaining momentum in the marketplace, their software applications are not yet competitive with the capabilities offered by laptops. I expect this will change in the near future.

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