It was one of the highest-stakes commercial trials in New York City's history.
Earlier this month, a Manhattan jury ruled that the Sept. 11, 2001, terrorist attacks on the World Trade Center constituted two occurrences, placing nine insurance companies on the hook for up to $2.2-billion (U.S.) in claims. That was significant, for had the tragedy been deemed a single event, total liability would have been capped at $1.1-billion.
For Silverstein Properties, the site's leaseholder, and its prominent U.S. law firm, Wachtell Lipton Rosen & Katz, it was a sweet victory indeed.
But it was also a grand slam for another important player in the courtroom: technology.
Throughout the three-week trial, Wachtell Lipton relied heavily on blowup images of witness transcripts and photos as well as computer-generated animations recreating the World Trade Center tragedy. All were projected for the judge and jury's eyes on screens around the room.
The key exhibit: a two-dimensional animation, created with Microsoft PowerPoint, the popular graphics presentation program, that depicted how a pair of airplanes striking from two directions cause two paths of destruction, as distinct from a hurricane, which causes a single path.
Such visuals turned the lawyers' arguments into clear, captivating and memorable images that were more likely than oral arguments to stick in jurors' minds as they deliberated for two weeks.
"We showed that [the airplane attacks]would be the equivalent of two hurricanes hitting Florida, not one hurricane with multiple debris," explains Samuel Solomon, chairman and chief executive officer of DOAR Litigation Consulting, a Lynbrook, N.Y.-based company that provided the technological support to Wachtell Lipton, and the author of the bestselling book PowerPoint for Litigators.
The case is just the latest and perhaps most dramatic example of a trend revolutionizing the field of trial law across North America, as more and more lawyers embrace so-called "e-litigation" tools to fight cases more efficiently and effectively.
In one of the most significant recent examples in Canada, Toronto lawyer Glenn Smith two years ago used a well-known document translation program called Adobe Acrobat to scan and digitally index 40,000 pages of trial evidence for an appeal court case involving another insurance dispute. The three-judge panel and literally dozens of lawyers representing several insurance companies followed each other's arguments by simultaneously pointing and clicking their way through electronic evidence that had been loaded into their laptops on CD-ROM disks.
"Most lawyers on the other side were technophobes," says Mr. Smith, a partner at Toronto law firm Lenczner Slaght, who ultimately prevailed in the case. "My greatest fear was they would refuse to use this, not because of any obstinacy on their part, just because they are unable to use a computer to argue their case."
After he offered to perform all the necessary technical work, the parties agreed. Mr. Smith was able to whittle down 30 bankers' boxes worth of paper to two containing mostly the data disks. And the case, which had been expected to last two weeks, wrapped up in all of four days. "I'm a proponent of technology," Mr. Smith says. "I think technology is so underused."
Another proponent of courtroom technology, Alan Butcher of Gowling Lafleur Henderson LLP, says electronic scanning and optical character recognition (OCR) software -- which translates scanned text into code that can be searched electronically -- can also be a boon to the research phase of a case, long before trial.
Instead of poring through thousands of documents and manually book-marking paragraphs with Post-It notes, text can be instantly sifted by keywords the same way that Internet users perform Google searches.
"Once you've got OCR, then you've got something that you never had with paper and could never have, which is the ability to search keywords within the text of every document," he says.
Mr. Butcher, a commercial litigator, has assembled a suite of electronic litigation services for clients across the country -- which the firm has dubbed eLS -- that includes presentation software, electronic case management programs, and document imaging and OCR technology tools that can do away with paper altogether. And all the information pertaining to a case can now be published on a secure website that can be viewed from anywhere by Gowlings' corporate clients to keep abreast of the case.
While computer literacy among lawyers and judges is evolving rapidly, litigators say they still face technical hurdles because courtroom facilities -- with the exception of a handful of "e-courts" in Toronto, Edmonton, Vancouver and elsewhere equipped with screens for judges, counsel and juries -- are woefully behind the times.
Deborah Glendinning, co-chair of the class-action specialty group at Osler Hoskin & Harcourt LLP in Toronto, recalls a landmark technology case five years ago in which the proceedings had to be moved for an afternoon to her office. The case involved a dispute over the legality of Microsoft Corp.'s signup agreement for its MSN on-line network, and the courthouse lacked an Internet connection.
"I had our IT people actually go up to the courthouse to try and hook it all up, because you actually had to be able to connect to the Internet to see how it functioned, and we couldn't do it there," recalls Ms. Glendinning, who prevailed for Microsoft in having the class action dismissed.
Judges haven't always been so accommodating. Earl Cherniak, the famed litigator at Lerners LLP in Toronto, faced resistance 30 years ago when he sought to admit into evidence a piece of technology that was seen as avant-garde at the time -- videotape. The footage depicted a day in the life of Mr. Cherniak's client, a four-year-old brain injury victim, whose case eventually went all the way to the Supreme Court.
Such videos were "unheard of" in 1974, Mr. Cherniak says. "We had a major fight. The defendants objected, and the judge very reluctantly let it in . . . And ultimately when the judge wrote the judgment, he referred to how helpful the videotapes were. So he came around right in that case."
More than any other lawyers, personal injury practitioners have been at the vanguard of trial presentation technology.
London, Ont.-based trial lawyer Rodney Dale, a colleague of Mr. Cherniak's at Lerners, pioneered the use of computerized simulations in the mid-1990s, along with Barrie, Ont.-based lawyer Roger Oatley and Thunder Bay litigator David Eryou. All three introduced car accident recreations independently around the same time.
"When I'm giving speeches on this stuff, I say juries aren't from Mississauga. They're not from North York. Juries are from Missouri, the show-me state. And seeing is believing," Mr. Dale says.
He adds that jury research in the United States has established that, after 72 hours, people retain 10 per cent of what they hear and 20 per cent of what they see. If they can both see and hear the evidence, the retention rate soars to 65 per cent.
"Because we're the television-set generation, we pay a lot more attention to what we see than what we hear, and it has a lot more credibility, things that we can actually see."
Mr. Oatley, of the firm Oatley Vigmond LLP, concurs. He says that, in this visual age, "the courtroom is a pretty boring place most of the time . . . Animations are very memorable because they're so interesting, they're so absorbing."
There's even now a popular software system used by trial lawyers to recreate car accidents called, appropriately enough, PC-Crash, from Macinnes Engineering Associates of Richmond, B.C.
Digitized files can not only speed up a case, saving a client money, but also help a lawyer fight a case more effectively in a courtroom by enabling him or her to perform keyword searches in seconds, says Dan Pinnington, director of PracticePRO, the risk management and claims prevention division of LawPRO, the malpractice insurance company for Ontario lawyers.
"You can use them both in examination and particularly in cross-examination, where the witness makes an unexpected statement and you want to find instances where they're contradicting themselves."
Other compelling uses of technology include flow chart depictions that show relationships between companies or people, as well as graphical timelines that show a sequence of events. Mr. Oatley also uses simulations to demonstrate medical injuries. "A judge or a jury can literally watch a conceptualization of the joint moving and deteriorating literally before their eyes. "It's extremely powerful."