The best trial attorneys quote liberally from the trial transcript in closing argument. Particularly in a long trial, you need to remind jurors of the key evidence they heard and how it leads to the verdict you want. For example, in a recent asbestos wrongful death trial in Alameda County Superior Court in Oakland, Jeff Kaiser of Kaiser Gornick LLP used the slide below to remind jurors of how a supervisor testified about pulling asbestos insulation off of pipes with a claw hammer.
As a trial tech and former litigator, I often help trial teams mine their transcript for nuggets of closing gold. Here are a few lessons that I’ve learned working with trial transcripts:
Review Your Transcripts Right Away
In a busy trial, it is hard to find the time to review the transcripts, but it should be a high priority. When I worked with her on a class action trial, Daralyn Durie of Durie Tangri LLP would read printed transcripts daily, marking key sections of testimony. She handed those markups to me, and we made potential closing slides with the marked testimony and a picture of the witness. Weeks later, when Daralyn was preparing her closing, she went through a stack of these potential closing slides, selecting and arranging the best quotes for her closing.
Reviewing transcript testimony regularly throughout the case will prepare you well for closing argument, which often comes sooner than the parties expect.
Annotate Key Testimony in a Consolidated Transcript
Consolidated and bookmarked transcript from an asbestos trial - the transcript was an Adobe Acrobat PDF with 1,526 pages from ten trial days
A longer trial often calls for a consolidated transcript combining the PDF files from each trial day. A consolidated transcript allows quick phrase searching through the entire transcript. The transcript becomes even more valuable if it is bookmarked and annotated with key events and testimony from the case. For example, the transcript above shows a bookmark from the Kaiser Gornick asbestos trial discussed above - the bookmark points to the testimony about using a claw hammer to remove the asbestos insulation. The consolidated transcript had 1,526 pages, so bookmarks for trial days, witnesses and key testimony allowed rapid finding and use of testimony.
Use Photographs of Your Witnesses With Their Testimony in Closing Slides
When you show trial testimony on a closing slide, using a photograph of the witness will help remind the jury of the witness and the testimony. When you have deposition video of the witness, you can often take the photograph from the video (particularly when you don’t care if the photograph is flattering). When you don’t have deposition video, ask for pictures of the witnesses or look for pictures on LinkedIn or other internet sources.
Include Deposition Clip Reports in Your Transcript
When you have shown deposition video clips (or just read a section of deposition into the record), don’t forget to include those clip reports in the transcript because court reporters often do not transcribe video playbacks. If you want to find the testimony later with a word search, you’ll need to include a copy of the clip report in your consolidated transcript.
Edit Your Transcript Slides for Maximum Impact
Once you have your draft slides with transcript testimony, you should nevertheless edit to keep the presentation moving. Long quotes will distract the jury and cause them to read ahead while they tune you out. To avoid that, edit the testimony down so it supports rather than detracts from your oral presentation. As one example, the slide above combined three longer quotes into a short summary of the witness’s testimony on asbestos dust.
Use a Consolidated Transcript in Post-Trial or Post-Arbitration E-Briefs
For a bench trial or an arbitration, an electronic brief (e-brief or ebrief) is a great way to put the evidence and authority at the fingertips of your decision-maker. A consolidated PDF trial transcript is a great resource for that e-brief, putting the key testimony just a hyperlink away.
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