Experience in the courtroom is the cornerstone of DOAR’s Trial Presentation practice. For the past 20 years our Trial Consultants have supported counsel at trial with the presentation of evidence in some of the biggest, high profile and complex white collar criminal matters in the country. Our seasoned trial teams have seen it all from inside the well and routinely draw on their shared experiences to provide our clients with unparalleled professionalism and calm under fire.
Below are a few of our consultants’ anecdotes relating to some of the lessons learned while spending an average of nine months a year at trial.
During a recent trial, key evidence originated from the recorded telephone line of one of the government’s main witnesses. Since we did not have direct access to the phone calls, we needed to rely on the district attorneys’ office to produce the audio files to us. Midway through the case we found several errors in the transcripts of the audio recordings prepared by the government. Since many of these files were linked to our presentations, we needed to edit the transcripts ourselves before we played them in court. This entailed converting the government’s files to an editable format while not sacrificing quality, then converting the files back to a presentation format, all the while making sure the audio remained linked to the presentation. During the conversion process, a major error regarding one of the audio files surfaced. It became apparent that a key phrase was incorrectly transcribed and attributed a positive answer when in fact, the answer was negative. This was a key piece of evidence for our client. Our ability to discover and correct this error while in the courtroom was of immense importance to the success of our clients’ case.
The good news was that, after months of arguing to the Court that the government should be forced to turn over the entire universe of audio tapes in their possession and not just the ones that were specific to their case, the judge had ruled in our client’s favor. The bad news was that some of the new files were inaudible, some transcripts illegible, there were inconsistencies in the naming conventions, an index was not provided, and of course, trial was just a few weeks away. Luckily, we had been through situations like this before and knew exactly which software to use and how to use it to organize and identify the files most significant to our case. Through the use of voice recognition software, non-linear audio editing solutions and some creative programming within our trial presentation software, we were able to manage and analyze hundreds of audio files. In the end, we went to trial prepared with text searchable databases that allowed access to the audio tapes by phone number, date, time, and defendant.
We were approximately four weeks and 2,500 transcript pages into the trial and the first witness was still on the stand. It was business as usual. Heads in 5” binders, hands writing on legal pads, eyes scrolling through the live testimony feed from the court reporter and naturally, a steady dose of objections to the direct testimony. One day, out of the blue, there was a long-awaited utterance: “No further questions your honor.”
A brief scramble to the podium was followed by a sarcastic introduction. Then, the first question, “Without sounding at all critical, would it be fair to say that you don’t have a particularly great memory?” It was the first of a flurry of questions directed toward the witness’ attendance during the most important meeting of the case. It seemed clear from the direct testimony that the witness was definitely in attendance. However, the research from the defense was in direct contradiction to the witness’ testimony. Through the use of a secure, high speed internet connection, we were able to access our online repository of documents and perform real-time searches for documents to assist in the cross examination. Our findings ultimately proved that the witness was indeed in another location at the time of the meeting. Our foresight to obtain permission from the court for internet connectivity so that all of the case materials were available to us during trial allowed us to perform immediate, in depth searches for relevant documents which not only strengthened our case, but contributed to a big win for our client.
About a year ago, I was presenting financial records in a packed courtroom in New York’s Southern District. It was an important cross at the beginning of a white-collar criminal trial. A few hours into the presentation, the questioning attorney paused at a page with numbered paragraphs and asked me to magnify paragraph number four. Upon completing this request, an associate from another defendant trial team flagged me down. He wanted me to highlight specific language within the document that would be beneficial to his client. He quickly jotted the message down on a post-it note, which was to be delivered to me by way of twelve attorneys and two defendants from the other end of the table. The problem was that the questioning attorney had another line of questioning in mind. The note moved slowly and painfully from person to person, and I realized the message would not arrive in time. I attempted to move closer, but the well was gridlocked. The associate and I both looked at each other helplessly as the questioning attorney requested a new document and moved onto another subject. As a result of this experience, I always request that a member of each defense team be within an easy relay position to be sure all parties are fairly represented.
While it is not that unusual during a criminal trial to receive last-minute additions to the prosecution’s list of trial exhibits, these additions tend to be small in size, averaging around 50 to 100 pages. In fact, it is not uncommon to receive emails from counsel for the government at odd and inconvenient hours of the day – after midnight, first thing in the morning, or directly following the lunch break. Frequently, these emails can contain exhibits for the witness currently on the stand. But during a recent trial, the government came to court before opening statements with 32 boxes of newly produced documents for the first witness! After all of the arguing and motions, the judge gave us only 2 days to look over the documents. Obviously, this presented many challenges, not to mention the fact that we had an opening statement to prepare for. Fortunately, we were able to scan, OCR, and then integrate all of the documents into our central trial database in just one day. On day two, the entire trial team (except for the attorneys delivering the opening statements for the defense) reviewed the documents at counsel table. While most of the 32 boxes produced were inconsequential, we were able to find many useful and relevant emails that aided our case during the cross examination of the first witness.
Every trial has at least one of these types of war stories. The ability to react quickly and remedy the situation comes with the confidence gained from the experience of working with many of the country’s most prominent trial lawyers during thousands of hours of trial.