By Mark Tamminga
Gerald Bruce Lee
U.S. District Judge
U.S. District Court, Eastern District of Virginia
Unlike many members of the judiciary, Judge Gerald Bruce Lee doesn't balk at technology. On the contrary, as he told us, he “marvels at federal and state judge Luddites who do not use computers or receive e-mail.” He has heard a range of significant cases in his U.S. District courtroom since receiving his commission in 1998. He sat on the Fairfax Circuit Court bench in the preceding six years, after working in private practice from 1976 to 1992. As a lawyer, he spent many hours exploring ways to make opening statements come alive with demonstrative evidence such as photographs, charts, models and diagrams. As a judge, he witnesses how a new generation of technologies—from presentation tools to e-filing and electronic discovery—play out in court. He shares some of his experiences here.
GBL: Actually, I have had a computer on my desk since 1983, when I was in private practice and I had a young law clerk who told me, “You should use a computer.” I laughed at him and pointed to my secretary and said, “Michael, you see Anne over there, she types 80 words per minute. I am not a fast typist, so why should I have a computer when I have Anne?” However, I took the plunge and purchased a computer for Anne and one for me. Anne quit, so I hired Marianne Baltimore as my computer-literate secretary and the rest is history.
But here is my real war story. I was in a small firm and we were battling large law firms in commercial litigation. Invariably, the larger defense firms would try to overwhelm us with motions and discovery. As I was on my way out of town one day, I received a lengthy motion that was time-sensitive. Well, since I had taken Michael's advice, I had this big box that weighed 35 pounds and looked like a small television set—a luggable PC. So my co-counsel and I used a dial-up modem and sent draft copies of the brief back and forth. We filed our reply in time and we won! My PC was my club, and I swung it back at my opponent to prevail. At that moment, I became a true believer in the power of computers.
GBL: I do not think my experience is typical of the younger judges, many of whom grew up with personal computers and used them in law school and private practice. Many of the senior judges in the federal and state judiciary, on the other hand, just have not used computers and remain a bit intimidated by them. Some of my colleagues in Virginia trial courts still compose draft opinions and orders on yellow legal pads.
I must admit that our court is being dragged into the 21st century screaming and kicking. First, you have to understand that the Eastern District of Virginia is one of the fastest courts in America in its handling of civil cases—the average time from filing to trial is about seven months. Our court is affectionately known as “The Rocket Docket.” The court is concerned that any tinkering with the rules or the way we have operated will “slow down the docket.” In light of that, the EDVA was one of the last courts to set up a basic Web site. We had to set up a site once the media drowned the clerk's office with requests for orders and information in the United States v. Zacarias Moussaoui case. Our experience with the site was positive, so we have expanded the Web page a bit and file judicial opinions online as well.
We also have intentionally decided to be the last federal district court in America to go to electronic filing. Why? We say we wanted the rest of the world to figure it out before we jumped in. The second explanation is that our judges fear e-filing will make it too easy for lawyers to file motions, some of which will not have merit and take up scarce judicial resources. We fear that the 30-page limit we have on paper briefs will cross over into endless 100-page tomes because we may not be able to monitor it. It is not that we do not want to hear the motion. Our creed is that brevity is the hallmark of great advocacy. Will we be overwhelmed with midnight filings of 100-page briefs? We do not know.
I am, though, optimistic about e-filing. It remains to be seen, but I think one of the positive things about e-filing is that it streamlines the litigation process. E-filing also requires judges and clerks to learn to use the technology. We can save time. Everyone can share the document and work on it simultaneously without having to hunt for the file. Documents will be available to judges, clerks and the public from their desktops from anywhere in the world.
GBL: On one occasion, a lawyer had a slide presentation prepared for his opening statement and it did not work. He had no backup plan. Well, you know what happened, we all waited. After a while, it dawned on me that it is not easy for a lawyer to fix a computer with a judge and 12 jurors watching, so I called a recess to see if the problem could be fixed. We finally had to move on with the opening statement without the slide show. It made quite an impression on the jury. I tried to soften it by telling the jury that the attorney was trying to present the case to them in a way that they could see and hear, and they should not hold it against the lawyer or his client. They call the work that we lawyers do “practice” for a reason.
In another case, a lawyer was displaying something on the ELMO during a thunderstorm and as the lawyer asked a question, the courtroom suddenly went dark. The lawyer said, “Well, I was trying to make a point, and I guess I have.” In the darkness, the jurors, the court clerks and the judge cracked up with laughter. We took a recess—such as it had been ordered by the Almighty.
GBL: The best uses I have seen have been in opening statement, during certain witness testimony and in a demonstrative brief for summary judgment. When the jury and judge can see and hear your point of view, you gain greater comprehension.
One of the most powerful opening statements was in a trademark case. The lawyer presented the company logo and contrasted it with the accused counterfeit or copying trademark logo. The color contrast and the lines were unmistakably identical. The lawyer also used draw-outs of the key provisions of critical documents, showing a few critical lines highlighted and large enough for everyone to read. By the time he finished the 10-minute slide show, it was clear who had made a powerful statement to the jury. Opposing counsel tried to respond by saying his client did not have money for fancy slide shows and he was a plain-speaking lawyer and his case would become clear as you listened. Well, the judge and the jury were clear at the end of this one-sided presentation that the opposing lawyer and his witnesses would have to come back strong to win. The lawyer with no technology to respond lost.
However, if you decide to use technology in opening statement, it had better work. You only get one chance to make a first impression on the jury. Generally speaking, our experience has been that the lawyers with the best opening statements have won their cases.
In another trial, I saw a lawyer tear a key witness to shreds on cross-examination with technology. The lawyer sharply questioned the witness with an inconsistent set of statements that were critical to the case, using an on-screen blow-up of the witness's prior testimony. Each of the witness's inconsistent statements was rapidly presented on screen. The examining attorney then read each statement to the witness without a hint of sarcasm: “Did I read your statement correctly, Mr. Liar, I mean Mr. Lear?” After two or three of these, the jury had the drift that they should not rely on this witness. It was all down hill from there—Mr. Lear and his case were sent packing.
GBL: I would have to say that the litigants who have greater resources to use technology have a better chance of fully airing their positions. The more advanced technology litigants may not always win, but they sure seem to make a go of it in trial. The truth is, if you have more attractive ways to present information that will make it easier to understand, you will capture the jury and the judge's attention. Once you have it, we will weigh whether we can trust you and whether we should accept your point of view.
At the same time, technology today is readily available to lawyers in solo practice, government and small firms. Who does not have a laptop computer and access to the Internet? When I was a trial lawyer, the PC helped me seize the momentum from my opponents in preparing motions and information. So I think the PC and the Internet can especially help equalize the playing field in trials and litigation as it relates to finding critical information. Information really is power. The trial lawyer's art is to find creative ways to present information in a way that persuades the tribunal to your client's point of view.
GBL: I believe the next 10 years will be pivotal in how we present litigation and resolve disputes. Most cases settle and they settle because information obtained or uncovered creates the climate where the holder of adverse information may be able to negotiate a settlement. Technology may not always uncover the smoking gun, but we see smoking e-mails, reconstituted deleted electronic files and statistical data that may advance a settlement. The next decade is about information security, information management, and setting a norm for jurors' expectations for court.
We have all said that Generation X and Generation Y grew up with computers, the Internet and instant access to information. So far we have not figured out how to corral information and to ensure that information is protected from theft, inadvertent disclosure and abuse. We need to think more about how much information is enough to make our point. Do we have to present every single e-mail and draft document to make our point? What is the attention span of this younger generation? Will jurors be willing to spend weeks and months trying to sort through mountains of documents looking for the key to this case? We will have to keep an open mind and be willing to try new things in the courtroom.