A thin bead of sweat is forming on the witness’s brow. Everyone in the courtroom can tell by the continuous string of grimaces on his face that he is counting the seconds until this cross-examination is over. The attorney walks over to his co-counsel, who pulls a set of documents from a binder and hands it to him. Certainly, this will be the linchpin.
One copy is handed to opposing counsel, one to the witness, and another to the judge. At the far end of the counsel table, a well-dressed young man behind a pair of laptops is trying to get the attention of the trial team. “Have you see this document before, Mr. Johnson?” says the attorney. “Uh, yes, yes I have,” replied the witness. “May we publish this to the jury, Your Honor?” asks the attorney, and the judge indicates his agreement. The young man is now desperately trying to get the trial team to look his way, without drawing attention to himself. The attorney turns to him, and with dramatic pause asks, “Could we publish to the jury, please?” The young man finally has the attorney’s attention, “Uh, what document do you need?” The momentum of the examination has ground to a halt and while the document eventually gets displayed, its power has been diminished. This doesn’t need to happen.
As with all things in a trial, preparation is key. There’s a reason we refer to this young man’s job description as “Hotseater.” As the courtroom evidence technician, he is often put on the spot, asked to read the minds of the attorneys, and as the trigger-man for all the evidence displayed to the jury, he’s the easy fall guy if things don’t go just right. But it doesn’t have to be that way. There are some very simple things that attorneys can do to make their work with a hotseater smoother, and therefore make their presentation in court more polished.
- Use your outlines. Even if you don’t have a finished witness outline, or tend to go off menu, even a rough outline or a list of documents you might need can be very helpful.
- Ask for evidence by name. “Defense Exhibit 50” is very easy to call up. “That contract that the Plaintiffs showed” might take a moment longer.
- Page numbers aren’t always page numbers. The page number of your paper printout, might not be the same as the digital doc (e.g. preamble pages, combined docs, etc.).
- Be descriptive when asking for callouts/highlights.“If we take a look at the second paragraph from the bottom that begins with “the contract shows…” gives the hotseater great direction, much better than “Near the bottom of the page…”
- There are only a few document identifiers that a hotseater can call a document up by. Be sure to coordinate those with the hotseater who can then enter those shortcuts in the database.
- Be aware of confusing terminology. You may have a “Tab number” from your binder for a document that itself has “tab numbers” that do not match.
- Video can be a fickle beast. Give your hotseater the final changes to depo videos with enough lead time so that they can preview it with the computer on which it will be played.
- Depending on how the court is wired, the hotseater may not have control over the feed going to the screens, it may be controlled by the court or even the opposing hotseater.
- And, as in the example we looked at in the beginning, don’t wait until the last second to ask for the exhibit. If you are handing up a hard copy of a document to the witness to authenticate, let the hotseater know what you are doing, that way the document can be cued up so when the judge says that it can be displayed to the jury, it’s only a click way.
Trials are always going to be intense and unpredictable. But, teams that are prepared and have an experienced hotseater will be able to count on a polished, effective presentation of their materials.
David Schaaf is a Senior Project Manager at Nextpoint, with over 7 years of in-court hotseating experience. He also leads Nextpoint’s training efforts and can be heard on the weekly Discovery Cloud and Trial Cloud webinars.