Using Computer Programs for Case Preparation and Trial Presentation: What can you do on your own? David McFarlane, Attorney Beth Heiting, Paralegal Bell, Moore & Richter, S.C. Madison, WI

For the past 20 years, I have been using legal-specific and generic programs for case preparation and for about the past 10 years have been using a computer at trials, during opening statements, examination of witnesses and closing argument. I am convinced that computer programs can be valuable (I think essential) tools for my work as a trial lawyer because they help me be more efficient and effective in the preparation of a case and at trial. When used appropriately, and with a reasonable amount of planning, computer programs allow us to quickly and accurately display exhibits and demonstrative aids, and allow us to clearly emphasize the important points in a document in ways that juries appreciate. We will discuss the following programs that we use on almost every trial: LexisNexis CaseMap 6.1 Mindjet MindManager 14.1 Adobe Acrobat 9 Pro Microsoft PowerPoint 2010 LexisNexis TimeMap 3 LexisNexis NoteMap 2 LexisNexis Sanction 3 The discussion of these programs is not meant as an endorsement of the programs. It only means they are the programs we now use. There are alternative programs which may well be better than what we use or that may be more suitable in your practice. We intend only to demonstrate how various types of programs, of which the ones we use are examples, can help a trial lawyer be more efficient and effective. At the end of the article we will list sources of information for these programs and for some alternative programs. GENERAL PRINCIPLES Everything discussed in this article can be done without computers; but, in our opinion, not as efficiently or as effectively. When I started as a trial lawyer more than 30 years ago, all my preparation was done with hand written notes, word-processing memos and outlines and lots of post-it-notes. I do not want to go back to that way of doing things. One of the main reasons why I like to use computers for case preparation is that a computer doesn’t forget things. When properly done, relevant facts are entered one time; they are linked to all relevant issues and to the important people and objects or events; and the information can then be quickly filtered by person, issue or date to help prepare for depositions or for examination of witnesses at trial. We are well aware of the adage “garbage in means garbage out,” so care has to be taken to be thoughtful about what facts are entered and to the listing of case issues. For trial presentation purposes, I don’t think there is any doubt about the value of using exhibits and demonstrative aids to show things to the jury or that visual aids are an essential part of educating and persuading a jury to decide in your favor. The question is, what is the best way to present those materials? There are many options: foam poster boards, binders filled with paper copies of exhibits, overhead projector with transparencies (does anyone still do this?), document cameras (often generically called an ELMO1) and computers connected to a projector. This article will discuss the last option. There is a great deal of interest in using an iPad at trial, which can be wirelessly connected to a projector. We will talk a little about that method and will identify some of the many books, articles and internet sources where you can learn much more about what can be done with an iPad. CASE PREPARATION The programs that we use for case preparation are: CaseMap (primary program for case facts and documents), MindManager (a “mind mapping” program for non-linear brainstorming and outlining), NoteMap (a traditional outlining program),TextMap (a transcript program) and Adobe Acrobat (to save documents as PDFs and apply bate numbers). The internet address for each program, and for every program mentioned in this article, is listed in the appendix. Case Map CaseMap, now part of LexisNexis, was developed by a trial lawyer. I started using it about 20 years ago after meeting the developer at one of the early ABA TechShows, an annual gathering in Chicago that focuses on the use of computer hardware and software in all types of legal practice areas. I had tried to develop my own Access database and had worked with spreadsheets and word processing documents to help organize facts, but was soon impressed by the advantages of CaseMap. We use version 6.1, which I think was the current version when LexisNexis acquired the program. The current version is 10.0. I do not know the differences or the current prices. I’m sure that all the features that we use remain in the current version. I expect that we use less than one-half of the features in version 6.1. That is all we need the program to do, so we remain satisfied with that version. My understanding is that CaseMap is largely based on a spreadsheet program with some database elements. Those details don’t really matter, though they help explain the appearance of the program, which looks much like a spreadsheet but is much more sophisticated. Other similar programs include: Case NoteBook (a WestLaw program), MasterFile and Summation. There are probably several others. Two very important features of an networked installation of CaseMap are that (1) multiple people can simultaneously view and edit information in one case file; and (2) I can create a “replica” of a case file on my laptop, work on the file while away from the office and then automatically synchronize the file when I log back onto the network. In nearly 20 years of working with the program we have never lost case data and have only had a handful of error messages requiring technical support. In those few situations the tech support was able to quickly retrieve the information and nothing was lost. My only computer is a laptop. I routinely create a replica of the CaseMap file for every open case I have, which gives me all of the information on each case whether I’m at home, on a plane, at a

1 In a recent article in the American Bar Association journal Litigation, the author commented that anyone who uses the name “ELMO” to refer to a document camera is dating themselves since while ELMO invented the first document camera 20 years ago, most courts now use equipment made by other companies. Lance Bachman, How to Take Advantage of Courtroom Technology, Litigation, Vo. 40. No. 2 (Winter 2014). deposition or at trial; without needing any connection to our network. I can’t count the number of times when having that type of immediate access to detailed case information, with specific source information, has been very helpful at a deposition or at trial. Each CaseMap case file contains three primary spreadsheets: Facts, Objects, and Issues. There are other spreadsheets, but those are what we most oftenuse. They represent the three major kinds of information we organize when we use CaseMap. We have found that it is most efficient to start by entering information about in the “objects” tab: names of people, key organizations and important documents. We then develop the list of “issues,” starting with one of the templates we’ve developed and customizing it as needed for the new case. We then enter information into the “facts” tab. That sequence helps because the facts are automatically linked to relevant people, source documents and issues. CaseMap can be used to do nothing more than create a chronology of events, with the slight additional benefit of consistency in the names of people and identification of the source for the information. I think it is far more effective to take the time to develop a list of issues and to link the facts to those issues. We’ve found that to be extremely helpful in small to very complex cases. When we create a new case file, CaseMap automatically generates a series of default fields for each spreadsheet. For example, for documents, CaseMap creates Bates-Begin, Bates-End, Author(s), Short Name, Date, Description, Source of Doc, Recipient(s), Type, and other document-specific columns. You don't have to use these columns, and we don’t, but they’re instantly available. For some reason, the developers thought the easiest way to identify case a document was by bates numbers. We like to use common-sense names, like “UW Hospital Medical Records,” or “Madison Police Department Records,” since those are the names we think of when referring to those documents. We change the “view” settings to remove the bates number columns and, for documents, start with the “full name.” Here is an approach that the “help” section of CaseMap recommends when you start a new case file, with some modifications based on our standard practices: 1. Open the Object spreadsheet and create a cast of characters and list of documents and other important objects. If the view is set to "All Objects," you can enter a mixture of items. If there are a lot of names of people or descriptions of documents, you can limit the view to that type of object and enter more specific information than is part of the “all objects” view. 2. Switch to the Issue spreadsheet and create an initial issue outline. Enter key claims and their elements. Keep your initial outline simple -- no more than two levels deep. You can add additional levels at a later time. We typically start with an issue template. We have one for a general liability case, one for a general medical malpractice case, and one for a birth-injury case. Copies of the general liability and general medical malpractice templates will be included in the slide presentation. 3. Then go to the Fact spreadsheet and start your chronology. Use object Short Names when you type in the Fact Text field. Use issue Short Names when you type in the Linked Issues field, or pull down the outline of issues and put check marks on the ones for each fact. Using Short Names makes your information consistent and creates automatic links as you type. Complete only those fields you consider essential. In CaseMap, you can start simple and return at a later point to capture additional details. Once a person’s name has been added to the “objects” tab, a link to that person is created in a fact entry by typing the first three letters of the person’s last name. That automatically pulls up a drop- down list of names that have those letters and you can select the correct one with a mouse click. The default setup creates a “short name” for each person, consisting of the full last name followed by the first initial. Unless there are multiple people with the same last name, our preference is to delete the first name initial because that makes it simpler to use the drop-down menu once depositions are taken. We enter depositions as a “proceeding” in the “objects” tab. We use a naming convention of “last name Dep” and a short name of “last name-Dep.” For example, a deposition of James Jones would have a “full name” of Jones Dep and the “short name” would be Jones_Dep. Then when entering information about Jones, the drop down menu will first show “Jones” for the person and then “Jones_Dep” for the deposition. For documents that have many pages, like certified medical records, we scan them to PDF and then use the bate numbering feature in Adobe Acrobat to bate number them, with a short prefix to identify the source, like “UWH” for University of Wisconsin Hospital, “DC” for Dean Clinic, or “MPD” for Madison Police Department. That allows easy and consistent identification of the specific source for relevant information. When entering information from a document, it might often be important to refer to several dates: the date of the document and the date of some event described in the document, such as the onset of a symptom mentioned in a doctor’s clinic note. We suggest entering the information under two dates, one for the date of the clinic note, and another for the date of the event, where we state in the description that the information was mentioned in a clinic note of a later date. The “source” for each fact is the same – the clinic note. The date field is pretty flexible. You can add a specific date and time, to the second, use “greater than,” or “less than” qualifiers for a date, describe a date as “approximate,” give a specific range of dates or times, state a year or month within a year, say the date is “to be determined” or that a specific date is “not applicable.” When entering information from depositions, we use CaseMap’s related program called TextMap. It deals with ASCII formatted transcripts, which come with a .txt file extension. We organize the transcripts into a general folder for “Deposition Transcripts” with a specific folder for each case. The naming convention we use is: “last name, first name (yyyy-mm-dd).” We then import the transcripts into TextMap where we’ve created a file for the case. Once the transcript is in TextMap, we can send information directly from TextMap to CaseMap, where the source is automatically given as the pages and lines for that portion of the transcript. You can leave the full Q and A format from the transcript, but for most entries we paraphrase the facts to be more concise, and use quotation marks to indicate when we are making a specific quote. You have to add links to the issues. CaseMap is a very flexible program, which can be utilized in many different situations. I’ve used it to (1) store information on medical malpractice experts, (2) collect information from medical texts, journals and profession publications on medical issues frequently encountered in birth injury cases, and (3) to organize facts and case authorities for briefing on complex cases. It can be effectively used in any situation where you want to organize facts by issue and want to have a consistently accurate way to identify the source for the information. I am a “true believer” in the value of this program; though I accept that these same things (and maybe more) can probably be done by several other programs. I’m happy to stick with what works for us. NoteMap I use NoteMap as a basic outlining program for case information, following a template I prepared and as the starting point for depositions of experts. Both templates will be included in the slide presentation. I like NoteMap because it is easy to collapse and expand sections of the outline and to select (the feature is called “hoist”) an individual section to be printed. I use that feature to print sections of a case outline to use as the table of contents for sections of my trial notebook: medical issues, pleadings, documents, plaintiffs’ experts and defense experts. NoteMap is a very basic outlining program, but it does just what I need and is easier to use than the outlining function of Word or WordPerfect. MindManager MindManager is a “mind mapping” program, which I think of as a non-linear outlining program, and which I find to be extremely useful when I want to brainstorm about a case. Ideas are located around a central topic. You do not have to think about how to organize topics and it is very simple to move a thought from one topic to another. The free-form function of this program is often surprisingly more effective for me than the linear approach of NoteMap. This might not matter to everyone, but mind mapping definitely has its adherents and there are many programs2 that you can try out. TextMap We use TextMap as the repository for our deposition transcripts. We ask the court reporter to provide an ASCII (.txt) transcript which is easily sent by email. We save them by case using the naming convention described in the CaseMap section above. TextMap allows us to do word or phrase searching through all transcripts in a case or in those we select. It also allows us to quickly send testimony as a fact to CaseMap where the entry automatically carries over the page and line references from the transcript. We also use TextMap to create collections of transcripts from frequent-flyer experts and for special categories of expert testimony, like pediatric neuroradiology or pediatric neurology in birth injury cases. Adobe Acrobat We are trying to use less paper in the work on our cases, so have started to do more with PDF’s, storing medical records and other large document sets in that format on our network and linking the PDF file to the document name in CaseMap. We use Adobe Acrobat 9 Pro. The current version is 11. The “Pro” version of Adobe Acrobat includes two very helpful features: bate numbering and exhibit labelling. To use the bate numbering feature, go to the “Advanced” tab and then to the “Document Processing” tab. You can then create the numbering system to use for the set of documents. To use the exhibit labelling feature, you will need to locate and download an add-on feature that you can find from Abode’s support page. We are not including a link because we think a different add-on is needed for various versions of Acrobat. Once loaded, it is a very useful tool. TRIAL PRESENTATION Many computer programs are available for presenting documents, videos or other exhibits at trial, but the two leading programs appear to be Sanction and TrialDirector. They both do similar things and each is regularly updating their features. Some years ago we chose to use Sanction, but both are very strong programs. Another leading program is PowerPoint, though there are many competitors to that program, some of which are listed in the appendix to this article. We use it in addition to Sanction.

2 iMindMap, MindGenius, MindMeister, MindView and xMind. Using an iPad is a hot topic about trial presentation. We have not yet done that, but from the books and articles that are available, it seems to be a fast developing trend with great potential. Many apps exist. Two leading apps seem to be: TrialPad and TranscriptPad. They, and other similar apps are worth checking out. One potential great advantage of using an iPad is that if you set it up correctly and have the necessary equipment, you can carry it around the courtroom and wirelessly project exhibits or demonstrative aides, without having to be wired to the projector. The slides will include information on how that can be done. Sanction Sanction is very effective for projecting documents and for then emphasizing the important section of a document using the “call-out” and highlighting features. We have seen some lawyers who try to do this by themselves, but believe that is a mistake. The lawyer should be concentrating on the substance of what is being done, not on the technical details of how to select and highlight the document. We work as a team, with a paralegal handling Sanction and all of the computer presentation work. There are many ways of organizing and getting to a document in Sanction. The most advance way, which we have not yet used, involves barcoding the documents and usind a scanner to very quickly pull up a document. We have seen that used very effectively; but for our cases, we think a well- organized labelling system and advance planning and discussion between the lawyer and paralegal, documents can be quickly projected without barcodes. That is what we do. Sanction also works well for projecting pages and lines from deposition transcripts. I think it works best with E-Tran version transcripts, the type provided by most court reporters, which has a .pxt file extension. This is another example of where, with some advance planning, you can quickly display the cover sheet of the deposition and then immediately go to the page and lines that are important. This is much faster and more effective than using a document camera. Sanction also works for showing video clips from depositions, and you can include a synchronized printed transcript, either by out-sourcing that work to Sanction or by having an assistant spend time on synchronizing the text and the video. Ms. Heiting has done that in several of our cases. PowerPoint “Death by PowerPoint” is a commonly-found topic when you search online for information about this program, and we have all endured presentations where it was difficult to stay awake. With the slides we will include a list of helpful sources dealing with suggestions for how best to design and use PowerPoint. Those topics, which are the subject of entire books and long presentations, are outside the scope of this short talk, but here are the key concepts that I’ve picked up; 1. Avoid, or at least limit the use of bullet points. 2. Use images rather than words. 3. Avoid reading from the slides; the slides should supplement what you are saying, not duplicate what you are saying. 4. Each slide should have a single point. 5. Use very large font size; many authors recommend size 40 for headings and size 36 for any text. PowerPoint can be very effective for presenting photographs, timelines, charts and any type of demonstrative exhibit. Expert witnesses should be encouraged to prepare a PowerPoint presentation, though you will probably have to edit the slides to avoid some of the recognized “Death-by-PowerPoint” traps. PowerPoint can be effectively used in closing argument. You can list the key issues in the case, show photos of the key witnesses and what they had to say, project key documents and testimony from depositions or daily transcripts, show key sections of jury instructions and how the verdict questions should be answered. Articles have been written about how to use the “layering” feature in Adobe Acrobat to create a very effective verdict presentation, where the slides show the questions and then quickly transition to your suggested answers. We have not done that, but it seems like a good technique. CONCLUSION I believe that the use of these programs, or others that have similar features, can make you a more successful lawyer, give you more confidence about having control over the key facts of your case and reduce some of the stress of being a trial lawyer. In the presentation we will try to give specific examples about how we use these programs and will provide examples of templates we’ve developed. We will also try to answer questions, either at the program or by email afterwards.

Bell, Moore & Richter, S.C. 44 E. Mifflin St. Madison,WI 53703 608-257-3764

David McFarlane [email protected] 608-259-2321

Beth Heiting [email protected] 608-259-2304

Appendix 1: Computer Programs and Website Addresses Adobe Acrobat: http://www.adobe.com/products/acrobat.html?promoid=KAUCY CaseMap: http://www.lexisnexis.com/casemap/casemap.aspx Case Notebook: http://legalsolutions.thomsonreuters.com/law-products/solutions/case- notebook Case Timeline: http://legalsolutions.thomsonreuters.com/law-products/solutions/case-timeline ExhibitView: http://www.exhibitview.net/ iMindMap: http://thinkbuzan.com/products/imindmap/ MasterFile: http://www.masterfile.biz/products/mf_inhouse.html MindGenius:http://www.mindgenius.com/Download/MindGenius/Business.aspx?_kk=mind%20 mapping%20program&_kt=b709245e-32b3-42ae-83f1-400058a5f24c&gclid=CPiX- d6Pqb0CFSho7AodFXoArw MindManager: http://www.mindjet.com/mindmanager/ MindMeister: http://www.mindmeister.com/ MindView: http://www.matchware.com/en/products/mindview/default.htm?gclid=CMP- prSPqb0CFWZo7AodDxoA9A NoteMap: http://www.lexisnexis.com/casemap/casemap.aspx PhotoShop: http://www.adobe.com/products/photoshop.html?promoid=JOLIW PowerPoint: http://office.microsoft.com/en-us/powerpoint/ Prezi: https://prezi.com/ Sanction: http://www.lexisnexis.com/en- us/litigation/products/sanction.page?category=CaseAnalysis-TrialPresentationProducts4 SmartDraw: http://www.smartdraw.com/ Summation: http://www.accessdata.com/products/ediscovery-litigation-support/summation TextMap (LexisNexis)(ASCII .txt files): http://www.lexisnexis.com/casemap/casemap.aspx TimeMap: http://www.lexisnexis.com/casemap/casemap.aspx TrialDirector: http://www.indatacorp.com/TrialDirector.html Visionary: http://www.visionarylegal.com/products/product.aspx?ProductsID=3 xMind: http://www.xmind.net/

Appendix 2: iPad Applications ExhibitView for iPad: http://www.exhibitview.net/ipad/ TranscriptPad: http://www.litsoftware.com/products/transcriptpad/ TrialPad: http://www.litsoftware.com/products/trialpad/ Trial Touch: https://portal.dkglobal.net/main/?