Podcast - Using Technology in the Courtroom
In this episode of his "The Trial Lawyer's Handbook" podcast series, litigation attorney Dan Small discusses the pros and cons of using technology in the courtroom. Mr. Small provides six helpful tips on how to put the electronic tools at your disposal to proper use as well as the importance of always having a backup plan.
Mr. Small is also the author of the new American Bar Association (ABA) book Lessons Learned from a Life on Trial: Landmark Cases from a Veteran Litigator and what They Can Teach Trial Lawyers.
Whatever may divide us as a society, we all seem to have one thing in common: spending hours every day staring at screens. Pretty much everyone now has become accustomed to the electronic display of information, with multitudes of photos and other graphics accompanying the (increasingly brief) text. That phenomenon has clear implications for the courtroom, beginning with the way evidence and demonstrative exhibits are displayed to the jury.
Technology has provided courtroom tools that have wonderful capabilities. And jurors like and they expect visual displays. But the ability to display documents and other items in court electronically has both advantages and disadvantages. The advantages are obvious: the ease of display, the ability to highlight and call out portions of a document, to juxtapose documents side by side or otherwise. The problems are less obvious and need to be considered. There are a number of them, but let's just talk about a couple.
1. Resist the temptation to flash documents quickly on and off the screen.
Jurors routinely complain about this. Slow down. Use fewer exhibits and leave them up longer. Take time to focus on them. To call out and highlight what's important. To let the exhibits sink in. To compare it with other documents right there, right then.
2. Resist the temptation to use more documents than you would otherwise.
Because computers permit us to organize and access more documents and other materials (and create more of them in the first place), there is a natural tendency to use more. Don't do it. Computers have evolved rapidly, but the human mind has not. People still can only process so much information. Plus, your marginal exhibits will tend to drown out your important ones.
3. Avoid trying to operate a computer and ask questions at the same time.
It's a classic "Don't walk and chew gum at the same time." Keep your focus on the witness and the jury. Unless you like awkward pauses, don't ask questions at the same time that you're trying to locate files on a computer. If at all possible, get someone else to operate the computer.
4. Don't give your files difficult or exotic names.
Consider labeling Exhibit 17 "Exhibit 17," rather than giving it a Bates number as "AXQ000739258BZ," — I feel like saying "hike" at the end of that. If you decide to describe it by its content, remember that you may be trying to locate it quickly, weeks or months or even more later, with the eyes of an impatient judge and jury on you.
5. Practice, practice, practice.
Practice your use of electronics as much as possible in advance, and try to coordinate with your questions and the witness outline. The more you practice, the more synced your outline is with the documents and the electronics, the fewer things will go wrong, and the better able you will be to react to those that inevitably do.
6. Have a backup plan.
Murphy's Law applies in courtrooms generally and specifically applies to technology in court. Computers have a tendency to crash or freeze. Whatever can go wrong, will go wrong. Have a paper copy of everything as a backup, so you can show it on a document camera or circulate it to the jury.
I had a high-profile case years ago in which the judge brought all the lawyers in before trial to have the clerk demonstrate the courtroom's new and very expensive electronic display system. Two days into a three-month trial, none of it was working, and the jurors' individual high-tech TV screens right in front of them became resting places for the paper copies of documents handed out by the lawyers.
In short, don't be afraid to use the electronic tools available to you. On the whole, they're great. But they have their limitations like everything else, and they create new types of problems that have to be taken into account. Above all, don't assume that the fancy gizmos are actually going to work, or that they are going to try the case for you. No matter how nicely you ask them, they won't do it. You are the captain of this ship, you need to try the case.