Without belaboring the point, everyone in the business of persuasion, which assuredly includes all lawyers, has heard the cliche “A picture is worth a thousand words” and knows that this really is true on a very deep level. As a result of recent research in neuropsychology and human cognition, we now know that the human brain is particularly adept at recognizing and processing visual images and patterns rather than words. Indeed, some of the best advice given to beginning litigators is to learn how to “paint a picture with words”. Even better than painting a picture with words alone is to show the picture while filling in the details verbally. .

Over the past two years or so, I have gradually come to the conclusion that a digital camera/video recorder has become an essential and easy to use tool for every lawyer and that regular use of digital photographic and video technology, even in the most routine matters, will become a pillar of legal practice over the next several years, especially for litigators. My consistent experience has been that using projected video clips and very large prints of accident or crime scenes, real property, etcetera, are highly useful and persuasive, whether used in briefs, in direct examination or in cross examination, even in bench trials.

In this third ab initio article, I will discuss recent digital imaging software and concepts that can enable you to fill the courtroom with amply sized easily authenticated photographic exhibits without breaking your bank account. In a companion article, I will discuss and recommend some recent digital cameras that are capable of the exceptionally good image quality and sharpness required to make high quality, large exhibits. All recommendations and discussions are based upon my own recent personal experience and testing.

Authenticating Photos:

There is one point that any photographically inclined litigator should bear in mind: the need to authenticate photographs in the courtroom. Being able to track how a photograph was changed between the time that it was taken on scene and the time that it is presented to the trier of fact can have some important litigation implications. Some years ago, I was trying a personal injury case to a jury and the other side presented some photographs taken at the time of the accident. Having personally examined the site myself on several occasions under similar conditions, I knew that the paving was light grey when dry and nearly black when wet. The other side’s photographs showed a pavement that was brownish, a definitely inaccurate color to anyone who had personally examined the accident scene and was apparently merely the result of inaccurate automated printing of their color negatives. The appearance of the exhibits initially caused a problem because, when depicted as brownish in color, the admittedly wet pavement looked dry in the photographs and there was no view of the accident scene by the jury. Moral: we’ll always really need to know and document everything that was done to a photograph before it’s shown to a trier of fact and that has become even more important now that its trivial to markedly alter a photograph digitally. Photographs shot in a RAW format are substantially easier to authenticate because, which the right software, you can typically document any corrections to a photograph’s initial state right out of the camera and back out any later changes so that later changes are easy to track and review. However, JPEG photographs can likewise be authenticated but with less certainty and precision about how they looked right out of the camera. I have now altered my own litigation to generally take all litigation-related still photographs in a camera’s RAW format and then provide a CD to the Court containing all of the original RAW image files for photographs that I intend to present as exhibits.

Which Photo Software?

I strongly prefer to use RAW photographic images for both legal and fine art purposes, although JPEG images from a good quality camera are usually more than adequate for family and casual use. However, effectively using a RAW photo file format requires more sophisticated photo software. I have found that, from both a legal authentication perspective and a fine arts perspective, Adobe’s Lightroom 1.2 is an ideal way to initially organize and correct photographic images. I have been working with Lightroom since its first public beta about a year ago and it is the first photo program that I turn to. I particularly like Lightroom from an evidentiary authentication perspective because it keeps an audit trail of all changes that you might make to a file and allows you to back them out to the original image as it came out of the camera.

Lightroom is something of a revolution in Windows photographic software and is unique among Windows photo software. It works with almost all JPEG, TIFF and RAW image formats, allowing a very wide level of fast, easy, sophisticated corrections of the sort that would have been done legitimately and routinely in film darkrooms years ago. All corrections made with Lightroom are reversible and made non-destructively. Lightroom’s database approach includes very good image organization, keyword labelling, and cataloging features that makes reviewing your photos and finding a particular image very quick and easy. Corrections are fast and easy with Lightroom, with the results immediately visible on your screen.

Lightroom is pretty easy to use so long as you have some grounding in photographic fundamentals. Indeed, my 13 year old has figured out the basics of Lightroom without resorting either to the printed manual or to her “mental manual: i.e., me. Adobe designed Lightroom’s interface and functionality through an unusual public beta testing program in which a usable and fairly stable beta version was made freely available to the public, which was invited to critique and suggest functional and interface changes to Lightroom’s initial version. The result is software that was essentially designed by photographers for photographers and replicating what you could do in a traditional darkroom. You can even lighten, darken, and intensify individual colors without affecting the overall photograph. Lightroom does not include the extensive image editing functions of Photoshop and other image editing programs. Lightroom is particularly useful to the litigator who needs to authenticate photographs precisely because it is not a photo editing program like PhotoShop. You can’t use it to paste a gun into someone’s hand nor can you erase significant details nor alter overall perspective. What you can do is make terrific looking digital photographs complete with an XMP file audit trail.

I believe that Lightroom is the perfect complement to any higher end digital camera that’s capable of using both JPEG and RAW image formats, I use it as my primary photographic software, and I highly recommend it. Adobe is very good about frequently updating Lightroom and Photoshop to work with new RAW formats.

Lightroom’s sole major flaw, in my opinion, is its imperfect printing module. In the end, you’ll need to print your exhibits and Lightroom still has problems matching what you see on the screen to what comes out of your printer, which brings us to Adobe’s Photoshop CS3.

Adobe Photoshop CS3 and Lightroom are complementary. I believe that you would do well to acquire and use both programs even though the initial purchase of each is expensive. However, Adobe regularly provides free intermediate upgrades and automatically installs them to your software. The cost of a major upgrade every few years to a wholly new version is pretty reasonable.

Lightroom is basically a “developing” program that’s intended to mimic the traditional corrections that a good color printing lab used to perform routinely when making custom photo prints. In turn, a photograph whose initial corrections were made with Lighroom can be automatically transferred to Photoshop CS3 for further, more specialized work and ultimate printing. CS3 is the gold standard for professional grade imaging software and it has numerous capabilities that you did not even know that you needed, such as the ability to stitch a series of photos together into a single panoramic image, which can be very useful in personal injury and real property litigation. CS3 also has several modes that can automatically correct multiple image problems with one or two mouse clicks. Photoshop ships in several versions, with more expensive versions such as CS3 “Extended” including more features. However, the basic functionality is the same. I always resize and print my photographic exhibits using Photoshop, regardless of how I initially processed and corrected them. Photoshop can provide extremely consistent printed results once you’ve calibrated your monitor and printer so that whatever you see on your screen is the same as your final printed exhibit or photograph, which saves a lot of time and wasted materials. In a sidebar to this article, I’ll describe how I combine the different strengths of Lightroom and Photoshop to produce very large high quality prints using an HP DesignJet 130 printer, which I consider to be the most economical high quality wide format printer on the market today when used with the optional HP roll paper feed.

Noise reduction and sharpening are critical photo processing functions that greatly affect the quality of your final output. Although Lightroom, Photoshop and other general purpose photo programs typically include noise reduction and sharpening functions, my experience is that specialized third party programs seem to do the best job. After much experimentation with various third party noise reduction programs, I found that Noiseware Professional from Imagenomic ( www.imagenomic.com ) seems to do the best job. In fact, I felt that Noiseware’s gain in sharpness and noise reduction was sometimes so dramatic for photos taken with several 6 MP to 9 MP cameras that the resultant improvements were equivalent to buying next generation cameras. Noiseware is available as a purchased Internet download. The standalone program is $44.95 while the version that “plugs in” to Photoshop CS3 and Photoshop Elements and works within those programs costs $69.95. I prefer the plug-in version for Photoshop. It allows a finer level of control.

Exhibit Printers, Media, and Mounting: Because some of my prior articles discussed large format photo printers suitable for making big exhibits for use in court and because printer models do not change very quickly, there’s no need to again review various large format photo grade printers. However, as a bonus, if you are so inclined, you can do some serious, high quality personal and fine art photo printing with the same exhibit printers that I recommended in my last article, the 13"x19" Canon Pixma 9000 ($400 average Internet price) and the $1,800 HP DesignJet 130 with 24" roll feed. If you choose to buy a wide-format DesignJet 130, which makes sense because it is ultimately the most economical approach to making 13x19 and larrger exhibits and photographs, then I strongly recommend that you purchase the printer, roll feeder and network connection at a competent local HP professional dealer and have the dealer’s personnel set up and calibrate the printer and teach you how to use it.

As to print media, Canon’s Photo Paper Professional (high gloss finish) is wonderful but I have also found that Ilford’s Galerie and Printasia glossy finish papers work very well with the Canon dye printers at about half the price. I have not been comparably satisfied when using non-HP photographic paper with the HP DesignJet 130. However, HP has a wide range of excellent roll papers intended for the DesignJet series. I prefer HP’s Premium Plus Photo Satin paper, HP product number Q5491A, which has a tough semi-gloss finish that’s both very resilient and capable of quite beautiful prints when used with HP’s maximum detail print driver. I prefer HP Photo Satin for both legal and fine art photographic projects when I need to make big prints. In 24"x50' rolls, HP’s Photo Satin Plus costs about $1.60 per lineal foot of 24" wide roll paper, and my best estimate of the corresponding ink cost is about a dollar per lineal foot. Hence, a high quality, full color 24" x 36" photographic exhibit would cost about ten dollars, excluding staff and equipment purchase expenditures. In times past, when silver-based photography was still king, I expected to spend ten times that amount for a commercial lab to make a comparably big exhibit. HP also makes some very nice heavyweight coated papers that are quite adequate for exhibits consisting mostly of text or other monochrome images. These are less expensive, costing about $.90 per lineal foot in 24" rolls, but are quite adequate for exhibits that do not require the highest level of photographic quality, such as blow-ups of contract language, letters, plats, etc. Your cost to print a 24"x36" text exhibit would likely be under five dollars each. With the advent of digital photography, you can easily afford to use large, high quality photographic exhibits in any case, even a small claims action.

Remember to mount your large exhibits so that they will be easy to handle at trial. Fumbling with a large exhibit that’s trying to curl is probably one of the most effective ways of losing both your own train of thought and the attention of your audience. I suggest buying a large box of 32"x40" artist’s foam backing board with a self-adhesive face. 1/8" thickness is probably adequate but 3/16" is stronger and stiffer, an advantage with very large prints. This method is the fastest and most effective way to prepare your big exhibits for trial. Ideally, you would use a framer’s mat board cutter (a good one such as the Logan 750 Simplex costs about $250) to ensure a neat, professional-looking cut. When bought in case quantities, self-adhesive foam core mounting board costs about twelve to fifteen dollars per 32"x40" full sheet. If you make smaller 20"x24" exhibits, which are fine for bench trials but probably too small for presentation to a jury, then you can cut a full sheet in half and mount two smaller 20"x24" exhibits.

Digital Presentation in the Courtroom:

I believe that it’s most effective and facile to combine printed exhibits with digital projection. Properly mounted large still photographs may be easier to handle, especially during presentation of evidence, and may be generally preferred by some judges and jurors. In any event, judges and jurors will need a marked and admitted exhibit during deliberations or in chambers and you will need to ensure that the record is complete in the event of appellate review. However, simultaneously digitally projecting a very large, highly detailed still photographic image often has more impact when viewed at a distance by the trier of fact, also allows you to zoom in and enlarge critical points such as construction details, and is particularly suited to fast-paced trial aspects such as opening statements, cross-examination and closing arguments.

Digital projection is unavoidable when you’re using video, such as clips from a video deposition or from an inherently moving subject such as driving through an accident scene and digital video can be readily embedded in Acrobat format pleadings using Adobe’s Acrobat Professional 8. I have found video clips embedded in Acrobat pleadings to be a surprisingly powerful means of illustrating important points in a case.

When using video, you will likely need to make it part of the record. I usually provide a CD or DVD containing the video clips or the Acrobat file that includes embedded video clips. Be sure that any CD or DVD that you make uses a standard video format that’s compatible with Acrobat and with the Court’s own computer equipment. After some trial and error, I have settled upon the Windows Media video and audio file formats. Using them may require conversion from whatever format is used by the digital camera or video recorder with which the image or video was taken. It’s likely that you’ll need to process and/or convert your video in order to make clips to embed in an Acrobat-based pleading or to project in court. I have found that Pinnacle Studio Plus works well, although learning how to use it correctly requires some time and effort.

Most consumer digital cameras include some form of video clip format but the file format, video image quality and allowable video clip length vary greatly from model to model. Digital SLR cameras are inherently incapable of making video clips, which is a strong argument for choosing a semi-pro grade compact camera over a digital SLR for daily legal use. Although some camera manufacturers like Kodak use Apple’s flexible, compact QuickTime video format (which I prefer), others use the old AVI, which I find much too bulky and unreliable.

Because of recent electronic advances by Texas Instruments, high quality digital projectors are now quite inexpensive and available from a variety of vendors for about $800. Choose a top tier brand such as ViewSonic or Epson and be sure that the digital projector has a light output of at least 2000 lumens, that it has at least 1024x768 XGA resolution, and that it synchs with your notebook computer.

Because digital projectors are so versatile and inexpensive, I no longer bother with the extra clutter and hassle of a document camera in court except for highly specific real-time needs such as magnifying a physical object. It’s usually easier, more efficient, and more versatile to just directly project a PDF image of a document rather than putting a piece of paper under a document camera.

Technology is a wonderful aid to courtroom presentation, being faster, more efficient, and more effective. However, there will be times when your in-court technology may fail or simply be cumbersome under the circumstances. As a fail-safe backup, I still take a trial notebook and complete sets of printed exhibits with me to Court, just in case. And, I’ve needed them on occasion.

+++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Sidebar 1

Which Photo File Format: RAW or JPEG?

For many years, the standard digital still photographic format has been the highly processed and compressed “JPEG” photo file format. Almost all casual cameras are limited to taking photographs only in JPEG format. JPEG’s great advantages are that it is a universal ISO standard format usable by almost all photo and word processing software and that its compressed nature allows more images to be stored on a memory card.

JPEG’s great advantage, file compression, is also its greatest disadvantage. That same compression usually degrades sharpness, image quality and the ability to later correct an image, at least to some extent. Every time that you work with a photo file and save it in JPEG format, you continue to again compress it and permanently lose more overall image quality and also any information about earlier changes to the photo file. This can affect your ability to authenticate a photo during later phases of litigation and, if you are also interested in fine art photography, using JPEG really undercuts your ability to correct and enhance your photographs. Because each JPEG image file is smaller than images taken in a RAW format, JPEG images are saved more quickly. JPEG is accordingly better suited for taking casual pictures of general non-evidentiary subjects and of quick action such as sports.

The advanced but less common alternative to JPEG is a “RAW” photo file format, which directly saves the raw data from the image sensor without any alteration by your camera. Photos taken in a RAW format are usually later processed by specific software on a personal computer. Most RAW formats are proprietary to a particular manufacturer and a specific product line although Adobe has published a public universal “DNG” RAW format whose availability and intent is similar to Adobe’s universal PDF document format. A few top manufacturers, such as Leica and Pentax, now use Adobe’s DNG photo file format in their higher end products. Adobe also publishes a free DNG conversion program that will translate and save all supported proprietary RAW format files into separate universal format DNG files for archival preservation. Here is a link to an interesting video demonstration showing why shooting in RAW format can improve your quality. This article focuses mostly upon color correction but shooting RAW format usually results in higher resolution and lower noise in the final print as well.

http://www.popphoto.com/popularphotographyfeatures/4681/digital-toolbox-why-raw-works.html

There is one other ISO-standard uncompressed file format, TIFF, which is now used mostly as a high quality ultimate output for JPEG and RAW photo files after they have been processed and converted on your computer. Earlier versions of TIFF formerly were used to store imaged document files, a role now largely subsumed by the much more versatile and efficient PDF format. TIFF images are very large, in fact about three times larger than the corresponding RAW file. Although TIFF is much too slow to use when taking pictures and too large for direct use when preparing insertions into the body of a pleading or other written document, TIFF is ideal for standardized high-quality storage of images already processed on your computer, is a usable format for most photo processing programs, and is even readable by the fax viewer built into Windows XP. For best quality, always save any processed RAW images in 16-bit TIFF format. If you intend to insert any photographic images into your pleadings, then you’ll need to convert TIFF or RAW files to a compact JPEG format, something that’s easily done with better photographic software such as Adobe’s Photoshop CS3, Photoshop Elements or Lightroom. I save both JPEG and RAW images as 16 bit color TIFF after I have made any corrections to a copy of the original photo file. As with RAW files, corrections later made to TIFF files by Lightroom can usually be documented, reviewed, and if necessary backed out.

Most consumer-oriented cameras are limited solely to JPEG format. However, all modern interchangible lens digital SLR cameras such as those made by Pentax, Nikon and Canon, and a few advanced compact and super-zoom cameras such as the Canon G9, the Panasonic LX2, FZ8 and FZ50, and the Fujifilm S6500, S9100, and E900, allow you to choose between RAW and JPEG formats. The semi-pro Pentax K10D digital SLR goes further, also allowing you to choose between Pentax’s normal proprietary RAW photo format and Adobe’s DNG RAW format. I personally use the DNG format with a Pentax K10D dSLR.

I recommend using an uncompressed RAW photo file format wherever possible both because of its potentially higher quality and because it is easier to authenticate the final exhibit for litigation purposes. However, in order to use RAW file formats properly, you’ll need some more specialized software, for which I recommend Adobe Lightroom, although Photoshop CS3 and Photoshop Elements 6 allow the same degree of ultimate control over a RAW file although not quite as facilely as Lightroom.

++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++++

Sidebar 2: A Quick How-To Approach to Exceptional Photo Exhibits

Although this procedure may sound somewhat complex, it’s actually faster to do it than to read about it once you’ve done it a few times and have calibrated your monitor and printer.

Shoot photo exhibits in high resolution RAW format wherever possible. Always work with a copy of the original file.

Periodically calibrate your monitor’s display to ensure correct color and other display parameters. I have found that the inexpensive Pantone Color Plus hardware/software combination works well. Although initial calibration may take some time to figure out, it quickly repays your effort and cost because your large prints will be correct the first time rather than making more and more aimless “corrections” that result in wasted time and materials.

Calibrate your printer by using the specific paper and ink combinations recommended by the manufacturer and for which the manufacturer supplies calibrated profiles. When you print from Adobe Photoshop, choose the vendor-supplied profile for that specific printer and paper combination. Surprisingly, different papers and inks may produce prints that differ radically from what you saw on your computer screen. I prefer using HP’s Premium Plus Photo Satin (Q5491A) in 24" rolls with HP’s maximum detail driver for that paper and printer.

Set Adobe Lightroom to track any changes that are made to a RAW photo file with an XMP sidecar file. The XMP sidecar file is your audit trail.

Set both your camera’s and Lightroom’s noise reduction, contrast and sharpening defaults to a low setting. Although the photos won’t look as sharp or snappy if printed right out of the camera, you can make these corrections much more effectively with post-processing just before you make your full-size final print.

• Import and open new photos in Adobe Lightroom, make any corrections using the right side panel’s slider bars, and export the corrected file as a 16-bit TIFF format file to an appropriate case subdirectory. Set the Lightroom export function to automatically open the exported TIFF file in Adobe Photoshop CS3.

In Photoshop CS3, run the third party Noiseware Photoshop plug-in using the “Filter”, “Imagenomic”, “Noiseware Professional” menu items. Defaults usually work fine but be careful not to over-sharpen by running a sharpening function too many times. You’ll know that you’ve oversharpened if you start losing detail after sharpening and instead end up with a lot of hard edges and blank surfaces. If this happens, then just undo the sharpening by selecting the “edit” “Undo” menu item immediately and do not save the “corrected” file. If you do so by mistake, just go back to Lightroom and re-export the TIFF file again. Here’s how the Noiseware dialog box mightlook if you using the Photoshop CS3 plug-in version. These are only suggested starting settings. Change them as needed for best results.

In Photoshop CS3, first use the “Image”, “Image Size” menu item to resize your photo exhibit to the desired width and height dimensions while retaining a 300 dpi or higher resolution. Although this does not actually add additional data or details that were not previously present, the resultant image looks a lot better when made into a really big print. Here’s how the CS3 image resizing box would look when printing a nominally 18"x24" print to best quality on 24" wide rolls of photo paper. Image size on the short dimension depends upon how you crop the picture. I try to use the full width of the 24" roll while leaving a reasonable amount of border, hence 22.6" on my long dimension.

Upon resizing, you can run the Noiseware filter one more time in Photoshop CS3 but check immediately afterwards to ensure that you did not over-sharpen.

Now, proceed to setting up the printed page. In Photoshop CS3, choose “File” “Page Setup”, and then choose the printer, paper size and output quality. For my DesignJet 130, I use the following functions for large 18"x24" or “24"x36" output on to roll paper. Here are the dialog boxes and the settings that I have found to work best with the HP DesignJet 130. Super C /A2 is used for 18”x24" prints while Super D/A1 is used for 24"x36" prints. These settings provide the best possible print but printing at best quality and maximum detail is definitely slower than printing to a normal level of quality.

• After you’ve set up the page, go to Photoshop’s print function. Check use the following general settings.

Print the exhibit or photo, allow to dry thoroughly without touching the surface, and then decide whether to accept this print or try again with other corrections.

Close the file without saving the larger re-sized file. The re-sized file does not contain any more information than the original TIFF file exported from Lightroom.

Many of the same Photoshop CS3 functions described here can also be accomplished with the less expensive “lite” version of Photoshop, Photoshop Elements 6, which also works with the Noiseware Professional plug-in that I like so much.

This article updates my earlier discussion, Digital Cameras for the Office ( http://www.abanet.org/lpm/ltt/articles/vol1/is1/an4.shtml), Law Technology Today, March 2007 and my extensive how-to article Making Big Exhibits on a Small Budget, also in the March 2007 issue of Law Technology Today, ( http://www.abanet.org/lpm/ltt/articles/vol1/is1/an9.shtml)

A detailed presentation about authenticating digital photographs in the courtroom is beyond the scope of this article but see my article on Authenticating Digital Photographs in the June 2006 issue of Law Practice Today. The URL is http://www.abanet.org/lpm/lpt/articles/tch06061.shtml