For this issue, we thought you’d appreciate hearing the opinions of real-life judges about the use of technology in their courtrooms. So here we go. Our thanks to Judge Gerald Bruce Lee (Eastern District of Virginia), Judge Dennis Smith (Circuit Court, Fairfax, Virginia) and Judge Christina M. Habas (District Court, City and County of Denver) for their invaluable insights.
When Technology Blows Up
We all know that technology is great when it works. But sometimes it does not. Judge Lee’s approach: “The first time you have trouble with your technology, I will amiably grant you a short recess. The second time, I will warn you sternly that it better be fixed, but I’ll still grant you a short recess. The third time it fails, I am going to advise you that we are done with technology for the day and it’s time to move on.”
All the judges offer the same advice on this point. Be prepared to proceed without technology and don’t let a jury see the extent of your discomfort. No one will draw any good conclusions from your technical failures, but at least they can be impressed by how prepared you are to move forward. This means making sure you have paper handouts in case your carefully prepared technology goes up in flames.
What Do You Mean There’s No Outlet?
The judges say it happens all the time. In walk the lawyers with their fancy equipment and they have no place to plug it in. Moreover, the fact that an outlet exists doesn’t mean it has juice—you have to test it. In other words, you need to get the lay of the land before the day of trial.
Where do you have working outlets? How many extension cords do you need, and how long should they be? Consider projector and screen placement. Test microphone and audio connections. Don’t forget your adapter cord so your battery doesn’t run down. Also, carry surge protectors and a bootable operating system disk. Look for phone and Ethernet jacks if needed. Use wireless lavaliere mikes so you can walk around easily. And make sure you have everything you need on your laptop—case files, reference materials and any software you may want in court.
Most well-prepared lawyers sketch out any courtroom with which they are unfamiliar. Remember, too, that you’ll need setup time, so you may have to get into the courtroom early. Smaller courthouses can be interesting. In one case, a friend of ours was simply given the key to the courthouse so he could set up his equipment the night before. But don’t count on that happening in a metropolitan area!
Did You Remember to Say, “May I?”
Not all judges are enamored of technology in the courtroom. Some are downright technophobic. We once lectured to a group of circuit court judges about the use of computer reconstructions in court. Their collective response? “Not in our courtrooms!” The times, they are a’ changing, but not as fast or as far as legal tech warriors would like.
Judges should be receptive to technology, since most find that trial time is shaved by one-quarter to one-third. But in case your judge isn’t, make sure you get permission for the technology you intend to bring, and that opposing counsel is informed in writing of your specific technology plans. Have the judge sign off on those plans. File a Motion in Limine if needed to iron things out. If the plans change, advise the judge. Judge Habas notes, “You don’t become a trial judge because you’re not a control freak.”
Judge Lee customarily sends counsel for both sides a letter asking them to come in for training on the court’s technology. Remember, in some courts you can bring in your own technology, but in others you have to work with what the court provides. Judge Lee notes wryly that he is the chair of the Technology Committee for EDVA and doesn’t even have a computer on his desk. He cautions that most judges, seeing technology in their courtroom, think, “I never did this as a trial lawyer. I didn’t need it.” He further acknowledges good-naturedly that, “If they give me a disk and give me a flip chart telling me that’s what is on the disk, I’m going to look at the flip chart and I’m never going to look at the disk.”
The Power of Those in Uniform
You also need to make sure you deal with any courthouse security issues. Sometimes you have to obtain a court order to bring in equipment or, at least, to notify security in advance so they can check with chambers. Given the current world climate, security officers are (understandably) rather humorless and tend to see technology as potentially threatening.
In the Eastern District of Virginia, your cell phones and Palm Pilots won’t get past security, so you can imagine the difficulty of bringing in full-scale presentation equipment. This is not something you want to deal with on the morning of trial.
Practice, Practice, Practice!
There is nothing that looks worse to a judge or jury than a lawyer fumbling around with technology. As Judge Habas notes, the “Columbo routine” plays great on TV but it doesn’t play well in court. If you can’t manage it yourself—and the judges seem to agree that most lawyers can’t—bring an IT person with you. This will also keep you from being distracted by the very technology that is supposed to be helping you.
Make sure your images are clear and sharp and your text is large enough to be seen, even by those with poor eyesight. In addition, if you’re going to use part of a video, make sure you can bring it up quickly without searching through it for the section you want.
Objections to Courtroom Technology
When a judge doesn’t like something you’re doing with technology, the all-purpose foundation objection works well. As Judge Habas says, it is the catch-all objection and sustaining it is often the judge’s way of saying, “I don’t know what’s wrong with it, but I don’t like it.”
If you’re using computer simulations, make sure there’s a clear disclaimer explaining that each is a simulation. In Virginia, Judge Smith notes that there are very strict rules about reconstructions: “You’ve got to account for all variables—and that’s very hard. In a judge trial, the judge will usually view the evidence, but a judge will also be a strict gatekeeper in determining whether such evidence will go to a jury—know your Daubert!” Judges also worry about parties with significant resources having access to compelling technology when the other side may not. Sometimes, the court can offer its own technology to the other side, and this may ameliorate the problem. But the lawyer on the other side may still lack sufficient expertise to use the technology effectively.We’ve gathered a wealth of other information on technology in the courtroom, including what not to do with PowerPoint, which we’ll share in a future column. Until then, the watchwords are: Be prepared, check, and then double-check before you walk through the courthouse doors.
Sharon D. Nelson ( firstname.lastname@example.org) and John W. Simek ( email@example.com) are President and Vice President, respectively, of Sensei Enterprises, Inc., a computer forensics and legal technology firm based in Fairfax, VA.