Certification of Trial Consultants

by Michael Boucher

There have been many discussions over the last several years about certifying litigation and trial consultants.  I do personally support a certification program primarily because the skills vary from company to company as well as individual to individual.  The various skill levels and knowledge provide an inconsistent service to the market place.  In our company the in court person who runs the presentation is known as a Trial Presentation Consultant.  We use consultant in the title because our people do provide consultative advice and solutions throughout trial.  I firmly believe that when a firm or attorney hires a consultant to be in trial they  should be able to do it all and not just bring up a document.

I have heard many titles for this position such as Trial Technology Consultant, Trial Technician, Trial Operator, Presentation Paralegal and many others.  The titles vary as much as the skills and knowledge.  As previously stated I do support certification but what are the criteria for it?

I would propose that a Trial Presentation Consultant be well versed in all aspects, applications and systems used for litigation support.  The ability to migrate information from the discovery systems into the courtroom can save thousands of dollars.  Moreover, the certification should require a good knowledge of law and in particular the rules of procedure.  A true consultant should also possess skills to work with various graphics programs such as Photoshop and Illustrator.  The trial presentation software should be a given as well as command of video and audio systems and software.  Audiovisual equipment and setup is a must.  If a consultant can’t setup the AV, how will they troubleshoot problems when they occur?  Any experienced consultant will tell you, problems will occur.

What I see far too often are individuals in the courtroom that really don’t belong.  Many have little or no understanding of law and rules of procedure.  I would venture a guess that over seventy percent of individuals in trial managing the presentation do not understand what a motion in limine is.  Moreover, they don’t understand the underlying argument and the legal issue of prejudicial versus probabitive.  If an individual is responsible for the management and presentation of evidence at trial I think these are fundamental areas of law that they should know.

Courtroom setup and trouble shooting is an area that I see time and time again a huge variation in skills.  I see some companies have a particular division setup the courtroom and the consultant has no idea on the configuration or technical aspects.  I and my colleagues are often asked by the opposing party’s consultant to aid in setup or the conduct problem resolution.  One of the reoccurring issues we see is in audio.  Too often we see that there will be a hum or buzz in audio.  The primary cause is power running to close or on top of audio cables.  Many times it is exacerbated by poor quality and thinly insulated cables.

Trial is dynamic and a consultant must be as well.  The ability to react to the day’s proceedings and make changes as needed is another essential criteria.  A consultant should be able to edit demonstrative graphics, create new graphics and do it timely.  The certification process should take a prospective consultant through a variety of situations with the real world pressure of limited time.  This would not only pertain to graphics but also video and audio edits, document pretreatment and the introduction of new evidence into the system.

The real question that has yet to be answered is who should govern and administer the certification.  The NCRA has been suggested and I would strongly disagree with this.  The certification processes should be aligned with an appropriate association and should allow for easy access to the program.  Prospective consultants shouldn’t have to travel cross country and pay large amounts of money.  The certification process shouldn’t take more than a day.  The focus is to certify the skills and not teach them.  From experience I will say that on any given day of trial a consultant will need to use all of their skills and expertise.