GPSolo Technology & Practice Guide - June 2006

Evolving Courtroom Technology

Advances in technology continue to creep into the courtroom with greater and greater frequency. Although many judges and practitioners initially resisted the evolution of technology in the courtroom, technological advances—primarily driven by the ease of display through laptop computers—have become standard, and many judges now insist that lawyers rely on electronic exhibits and abandon their tried-and-true paper exhibits. The paperless courtroom has not yet arrived across the country, but more and more judges are embracing technology that makes a case easier to understand and speeds up the trial through the efficient display and handling of evidence. Every trial lawyer should understand the current trends and best practices as well as the risks and pitfalls that await the unwary trial attorney.

Know the Courtroom and the Judge

The first step in deciding whether and how to use technology in the courtroom is to understand what is available in the courtroom and what the judge will allow. A critical step—if you have not already set foot in the courtroom for a motion or other pre-trial proceeding—is to visit the courtroom and look around at what is available in terms of technology, space, and overall setup. You should understand whether the courtroom is “wired” (i.e., whether it already contains an audiovisual system that includes displays for the judge, the witness, and the jury). Many courts now have systems in place that make it easy to use technology—so easy that it may only be a matter of plugging your laptop directly into the court system. Many of these systems also include a “visual presenter” (also known as a “visualizer” or “document camera”). Visual presenters are like electronic versions of those old-fashioned overhead projectors; rather than projecting transparencies, however, they project images of the actual documents or physical exhibits themselves.

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Not all courtrooms are wired, however. For these courtrooms, you will need to bring all of the equipment, including monitors, projectors, and wiring. If your budget permits, it’s usually best in these cases to contact a local trial support vendor that has experience with the courtroom and the judge. The vendor will be able to set up an entire system for you, adjustable to your needs for how you plan to use the technology during the trial. It is also a good idea to contact the other side and discuss logistics. There is no need for two separate systems—and judges will not allow it, anyway—so this is an opportunity to share some of the cost for the equipment.

A second important step is to understand the preferences of the judge assigned to the case. Will the judge require the display of exhibits electronically, or will the court insist that witnesses physically handle the actual exhibits? If the judge allows electronic exhibits but the courtroom has no system already in place, what type of electronic setup will the court permit? The court clerk is an invaluable source of information. Gather as much information as early as possible about the judge’s preferences.

If you are planning on bringing equipment into the courtroom, make sure that you get permission from the judge. Again, the court clerk is usually the best source of information on these issues. You will want to talk to the court clerk well in advance so that there are no problems with the equipment or with the setup. In certain situations, the judge may request to be told where the equipment will be set up and may even request to see how the evidence looks when it is displayed. Always remember that it is the judge’s courtroom and you’ll need permission for anything you want to put into it.

Displaying Exhibits Electronically

There are many different items that can be displayed during a trial using technology, from exhibits to PowerPoint slides to animations to video deposition clips. The most important thing to keep in mind with any of these items is to make sure that the judge, the witness, and, most importantly, the jury can see what is displayed. Many courts have (or will permit) individual monitors for the judge, the witness, and counsel. The courts may also have plasma monitors for the jury. Unfortunately, it is not uncommon for these monitors to display blurry images that appear washed out and, in some situations, unreadable.

Again, the key here is to make sure you have looked at the displays before trial starts and personally viewed each monitor to see how the documents appear. If the built-in court systems do not display the exhibits with enough clarity, a relatively inexpensive approach is to use a projector with a large screen. Because the documents appear much larger on these screens, they are frequently much easier for everyone to see. If you do opt for a single, large screen, always make sure that the jurors have a clear view; remember that the judge, counsel, and witness all have a paper copy of the exhibit, but the jury does not. In addition to a single projector, there are many other cost-effective alternatives that most courtroom technology companies can put into place for a reasonable price.

It is also important to decide what mechanism you will use to display exhibits, graphics, and videotaped deposition testimony. The two main electronic choices for display are a laptop computer and a visual presenter (the latter for physical exhibits only). I recommend having both available. The laptop is a mainstay for quickly and efficiently displaying exhibits; the presenter can serve as a backup for any problems that arise, as well as for any exhibits that are not preloaded on the laptop before trial.

For you to display them through a laptop, the exhibits must exist as computer images. Some exhibits will already exist as electronic images in your files; others will need to be scanned. You then load the exhibit images into a database that you can easily access during trial. The two primary software programs for displaying exhibits and other information at trial are Sanction ( www.verdictsystems.com) and Trial Director ( www.indatacorp.com). Both work fine, but they have different features and advantages and disadvantages. Both programs allow a user to pull up an exhibit, highlight key statements, select key statements to expand into bigger text, and display two exhibits side-by-side. Overall, I recommend Sanction for its ease of use and ability to display exhibits quickly and efficiently.

You also must decide how to select and pull up the exhibits you want to display. If you are using a visual presenter, it is relatively straightforward to pull the exhibit out of the exhibit binder and lay the document on the screen. If you are using a laptop, the two primary ways to pull up a document are by typing the exhibit identification number into the laptop or by using a special scanner with pre-determined bar codes (just like the bar code scanners at the grocery store). Typing the exhibit identification numbers generally requires a second person, so bar codes may be a good option when it is cost prohibitive to have a para-legal or technician at trial. Nonetheless, bar code scanners do not always work as advertised—they often lead to more problems than simply retrieving the exhibits with typed numbers.

What Happens When It Doesn’t Work?

Technology will fail. No matter how much you test, back up, and prepare, a glitch will occur at some point during your trial. You need to be prepared.

First and most importantly, do not panic. There are many ways to move smoothly beyond the technological glitch if you are prepared to do so. One option is to have a backup laptop running with the identical data already loaded. This laptop can be ready to go with the simple use of a toggle switch.

Second, be flexible. Although you are in trial and under a lot of pressure, keep in mind that if the laptop does not work, you can always use the visual presenter. The presenter works well with paper exhibits and also displays color exhibits quite well.

Finally, you can always return to the paper exhibit and work out the technology glitch later; just remember that the jury will not be able to see the document if you can’t display it electronically.

Advanced Strategies

The electronic display of evidence allows a trial lawyer to bring the trier of fact into the story in a way that is not possible with ordinary trial boards and the like (although there is still good reason to use large boards for two or three important exhibits or graphics, such as timelines that you want displayed for a long period of time). Electronic displays allow the trial lawyer to actually show exhibits to the jury, rather than merely having a witness describe them.

There are many items that can be displayed using technology at trial. For example, PowerPoint slides make effective argument charts that provide a road map for the jury during opening, and they also can be used in closing argument to show key pieces of testimony, exhibits, and other evidence. Critical graphics and animations (particularly useful in patent and technology cases) also can be shown directly from a laptop computer. Of course, animations could also be put on a videotape and shown through a VCR, but this usually slows down the presentation.

Videos of depositions can prove extremely effective for the impeachment of witnesses. Be prepared, however, to spend a substantial amount of time well in advance of trial to prepare the deposition clips that you believe you may need for impeachment. The videotape and deposition transcript will need to be synchronized and put into a format that can be used in the trial software that you have selected. And once you have these clips loaded onto the computer, make sure there are speakers available in the courtroom to play them; as with all the other hardware, remember to test the speakers ahead of time for clarity.

Recently, courts have begun permitting the examination of trial witnesses by videoconference during the trial itself. Many vendors, including court reporters, have the capacity to set up these systems. Video-conferencing comes in particularly handy for third-party witnesses who are out of the jurisdiction and who are unwilling to attend the trial in person. You can send exhibits to the videoconference site ahead of time for use during the examination by the witness. Although live testimony is always preferable, videoconferencing is likely to become more and more common during trial, and the presentation of the witnesses is still quite effective. Once again, make sure the court will permit this approach ahead of time and go through a dry run to make sure it works.

Conclusion

Technology in the courtroom should be another element of effective presentation for every trial lawyer. Nonetheless, do not let the technology control you. Use it wisely and it can make presenting the evidence smooth and effortless. Let the technology take control and it can slow you down, make you look unprepared, and clutter your presentation so that a jury misses the critical facts. Also do not forget that some old strategies—such as blow-ups of critical exhibits and timelines—remain very effective and still should be used.

Be prepared, be flexible, and keep your focus on the content that you are presenting.

 

Stan Gibson is a trial attorney with Jeffer, Mangels, Butler & Marmaro and is also a founding member of the Discovery Technology Group. He recently received the Law Technology News Award for innovative use of technology at trial. He can be reached at sgibson@jmbm.com.

 

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