The Adapting Definition of a “Document”
It’s a safe assumption today that every printed document we encounter comes from a digital file, unless we’re talking microfiche, a handwritten note, or a land deed from the 1800s. If you’re holding a piece of paper in your hand, it was probably printed from a Microsoft Word document or a PDF file. We live and work in a digital world, but we often insist on forcing digital files into an 8½” × 11” physical manifestation.
But working with digital files means they’re more approachable, and they can be searched and organized for quick retrieval whenever you need them. For example, when a trial team needs to pull up a document, there’s no reason they should have to flip through three-ring binders or dig through a stack of bankers boxes—it should simply be an exercise of accessing a file listing or filtering a database on their laptop or iPad.
Another point of discomfort is how to define the “original” file in today’s digital world when the “original” document or file is a set of ones and zeroes that have been programmatically composed to appear as an email. Add on the layer of the diverse mediums that society uses to communicate today, and it quickly gets overwhelming. For example, one person may send an initial email, but the recipient may instead reply via text message. Next, one might share a link to a cloud-based Google Doc where they add comments, and then the two collaborate on Slack. Which of these communications are considered an “original” under the traditional concept of a “document”?
These (and more) are the challenges facing modern-day counsel as we strive to fit the square peg of a document into the round hole of a digital world that involves multifaceted communication channels. As one e-discovery visionary summed it up at a recent conference: “We are not creating documents anymore; we are creating information and collaboration artifacts.”
Current-Day Challenges with Document Review and Presentation
Even if (when) we become comfortable with these evolving communications streams, the technology we’ve historically used for document review and trial presentation may need more time to adjust. The very fact that we still call it “document review” reveals a stuck mindset because we usually transform native electronic files into a less-than-useful format mimicking paper. We have to strip out text and metadata and force “pages” on files that were never meant to be paginated (e.g., there are no “pages” in an email or a spreadsheet). Some of this is necessary, however, until the tools catch up, but that’s no excuse for legal professionals to be lackadaisical about being aware of evolving technologies.
When it comes to presenting this information, judges can be especially helpful in nudging practitioners appearing before them to take advantage of the tools available today. For example, in one recent high-profile case, prosecutors were showing text messages sent from the accused to family members that were obviously collected from a mobile phone. To show those messages in court, someone decided to physically print those messages onto 8½” × 11” sheets of paper, and the prosecutor then used a document camera (aka ELMO) to show the printouts in court. This accomplished the goal of showing the text messages, but it was incredibly cumbersome and distracting as the prosecutor had to constantly bend down to adjust the camera, flip pages, move the paper around, and read tiny print. It would have been much easier to pull up the visual representations of the text messages on a computer or iPad and zoom in on the relevant conversations they wanted to highlight.
Understandably, not everyone is comfortable with all the tools available, but attorneys shouldn’t get a free pass because they claim they’re “not computer literate” or “not tech savvy.” As Judge Johnston stated in the DR Distributors, LLC v. 21 Century Smoking, Inc. opinion, “it is no longer amateur hour” when it comes to being competent in e-discovery and associated technologies.
Why the iPad Has Become a Viable Presentation Tool
Historically, trial presentation setups required high-end Windows laptops to host databases and show documents and video clips. Sophisticated software and trained individuals (aka “hot seaters”) were necessary to create callouts, highlight text, annotate documents, and generally ensure all the equipment worked properly. But today, the iPad has enough storage space and computing horsepower to accomplish all the necessary tasks without the troublesome overhead. Litigators using an iPad are simply more efficient, organized, and streamlined. Most attorneys can control the presentations themselves right from their iPad, and the wireless presentation option means less mess without all the wire and cable spaghetti.
Presenting information from an iPad doesn’t require a lot of equipment. There are two basic methods for presenting from an iPad: wired and wireless. The “wired” method is similar to presenting from a laptop where there is a VGA or HDMI cable between the laptop and the projector/widescreen TV. Many laptops today are so thin they don’t have a built-in VGA or HDMI port, so you have to use a USB-C adapter. That same adapter can be used with an iPad to mirror the screen to a projector or widescreen TV. Apple sells an adapter (the USB-C Digital AV Multiport Adapter), but you can purchase similar adapters from other vendors.
The “wireless” method of presenting from an iPad requires the use of an Apple TV, a small black box sold by Apple that connects to a widescreen TV so you can watch YouTube, Hulu, Netflix, and more. But once the Apple TV is connected with an HDMI cable, it also becomes an AirPlay Receiver, which means you can mirror your iPad’s screen through the Apple TV via WiFi. You simply access the Control Center on the iPad, tap “Screen Mirroring,” and select the Apple TV. By default, the Apple TV will mirror the iPad screen, but there are special presentation modes you can access when you use apps such as Microsoft PowerPoint and TrialPad.
A laptop can act as an AirPlay Receiver as well with the use of the Reflector software (Mac or Windows, $20). Once you connect the laptop to a VGA or HDMI cable, it can sit on a table or podium and run the Reflector software, which acts as a pass-through for the iPad screen. As long as the laptop and iPad are connected to the same wireless network, such as a phone hotspot or local wireless network, the iPad can wirelessly present through the laptop to the projector or widescreen TV. Some may question the use of an iPad in this situation if you have a laptop connected, but using the iPad lets you move around the room and more compellingly control what is being presented. This setup also works great for using an iPad in remote presentations over Zoom or Microsoft Teams.
Even if you prefer the wireless methods for presentations, it’s a good idea to always keep the wired adapters in your briefcase as a backup.
Ensuring a Smooth and Proficient Presentation Setup
The last thing anyone wants in a trial is a delay due to “technical difficulties.” While certainly no one can avoid all technology snafus, there are several steps that both the bench and the bar can take to ensure the proceedings are as streamlined as possible.
To the extent possible, attorneys should always be conscious of the physical layout and setup of the courtroom in which they are scheduled to present. Is there a single widescreen television on a wall or a projector with a screen? What connections and cables (HDMI or VGA) are offered to connect to the screen? Where are the power outlets located? Does the courtroom offer reliable WiFi? What are the options for playing audio if necessary? Attorneys should reach out to the court or clerk early to inquire about these questions and whether there are any additional requirements for their presentation. The best scenario would be if the attorney could physically visit the courtroom and test their equipment so there are no surprises (or disappointments) at showtime.
For their part, judges and court personnel could simply encourage early attention to these logistical and technical details with the goal of avoiding unnecessary delays. In other words, don’t just idly defer these questions to the court’s “IT guy” and remain indifferent to the technology requirements. Perhaps the court could offer a simple checklist for attorneys anticipating most of the questions above and provide some guidelines and expectations. There is (usually) no need for judges to interject into the substantive content of presentations, but encouraging attorneys to prepare and plan for their presentation software and equipment will help ensure a smooth and efficient flow of events in the courtroom.
Some questions that the court could pose to counsel appearing before them include: Are you planning to present information from a laptop or an iPad? Will you need to play any video or audio in the courtroom? Do you have a set of adapters for your equipment and a backup computer or device? Will you need access to WiFi during the trial? At the very least, just simply posing these questions can alert counsel that they need to include these considerations in their planning.
The App-solutely Best Apps for Presenting from an iPad
You don’t have to use a presentation-specific app to show documents on the iPad, although it certainly helps. For example, if you only need to show a PDF file and do some basic highlights, you could simply open the file in apps such as Adobe Acrobat Reader or PDF Expert. These apps are limited in that you can’t do callouts or certain other annotations, but they work in finite scenarios.
For opening or closing remarks, Microsoft PowerPoint and Apple’s Keynote apps work wonderfully on the iPad. These apps are designed for “linear” presentations where you are advancing to the next slide, next slide, next slide, and so on. You can do some “live” annotations on the slides as you tap through, but it’s not as easy as in other apps. The best feature of using an iPad to control a PowerPoint presentation is that the current slide can show on the projector while the iPad will show the current and next slide so the presenter knows exactly what’s coming and be prepared for the slide transition. The iPad will also let you easily jump to a specific slide.
For more dynamic needs, the TrialPad app is specifically designed for pulling up a document or file and seamlessly creating callouts, highlights, annotations, redactions, and more. On the iPad, the attorney has a digital palette of presentation tools at their fingertips while the audience sees only a simplified view of the document. The attorney can use their finger or an Apple Pencil to create a rectangular callout on a paragraph in the document, and then highlight a word or sentence. All of this can be done in real time, or documents can be pre-annotated to save time. There’s also a virtual laser pointer built into the TrialPad app.
The TrialPad app is easy to learn and control. If there is an objection about a document, you can tap the “Blank” button to immediately show a blank screen to the audience. And when you’re ready to show another document, tapping the “Present” button presents it on the screen. TrialPad also allows you to play audio and video clips, although, depending on the room, you might need some additional equipment or speakers.
The Future in Floating Clouds
All of these apps offer deeper layers of features, but even just understanding the basics can make a huge difference in streamlining the time, equipment, and resources needed for effective presentations. The iPad has truly become a game-changer in this arena, although it’s not the only game in town. There are certainly some cases that are so complex and demanding that it still makes sense to lug in the equipment and have a professional trial presentation consultant manage the logistical undertaking.
While there is still the traditional Windows-based software for trial presentations, including TrialDirector and Sanction, there are a few other players on the market such as OnCue. There is also a cloud-based option called Nextpoint that can run on almost any computer or device that has a web browser (in full transparency, I work closely with Nextpoint as their eLaw Evangelist). Nextpoint offers both a Discovery Suite for e-discovery document review as well as a Litigation Suite for hosting transcripts and exhibits. From any database in Nextpoint, you will find a tiny projector screen next to a document that allows you to immediately show that file in “Theater Mode,” which will open a blank browser tab with the document front and center. You can then create a callout on a paragraph and highlight pertinent text. Because Nextpoint is cloud-based, you do need a reliable connection to the internet to use it.
Lastly, it should go without saying that none of this technology matters if the presenter isn’t confident in what they’re trying to present. The best tools in the world can’t make up for a lack of planning or strategy. While today’s tools may not require the same time intensity that they did a few years ago, it is still absolutely critical to make sure the trial team is comfortable with the technologies so there’s no time wasted in figuring things out in court.
The good news is that we will continue to enjoy improvements in this area. For example, there are not too many good timeline creators on the market today, but there are people working to remedy that. The Nextpoint platform now offers a basic timeline tool.
Other tools, including the TranscriptPad iPad app (from the makers of TrialPad), are using AI to synchronize the video and text of a deposition transcript, which is a process that used to take hours. That makes it easy to export video clips from depositions that can be shown in TrialPad or other tools. It’s an exciting time in the trial presentation technology industry, and, hopefully, this gives you some better angles to get to know and understand what is possible.
For now, there are plenty of options available that are accessible, easy to use, and mightily effective.