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March 30, 2016 Articles

Tips for Using Technology Inside and Outside the Courtroom

By Jonathan W. Lounsberry

My introduction to family court litigation occurred during my junior year in college. That fall, I took a job as a file clerk and runner with McLaren & Lee, a small firm in Columbia, South Carolina, specializing in family court litigation. On my first day at work, I noticed a certain gleam in the eyes of paralegals and attorneys when they realized I drove an SUV. Their delight over the size of my car left me at a loss. Without further thought on the subject, I spent the rest of my first week helping prepare for a weeklong trial. When I arrived at the office the following Monday morning, I understood why my car attracted such attention. Without it, I could not have taken the 20-plus bankers boxes to the courthouse in a single trip. Right then and there, I learned how document intensive the practice of family court litigation could be.

In 2011, I returned to work at McLaren & Lee. One year prior to my return, the release of the first-generation iPad caused a sea change in trial preparation and presentation. As a result, the firm endeavored to learn how to leverage this new technology in the litigation process. As a result, the more we integrated this new technology, the fewer bankers boxes we required for deposition or trial. Oral arguments and presentations of evidence became crisp and clear. The technology did not change the way the firm practiced—it changed the way information was digested, distributed, and presented.

The following is based on what I have learned from integrating technology into a family law practice and how it can streamline the litigation process and increase the impact of evidence. My insights are not platform specific. I have used PCs, Macs, and other Apple products during all phases of the litigation process. The technological platform you use is not important. Neither is the size of the firm nor the complexity of your case—technology is equally advantageous in complex matters, as it is in small, “routine” cases. The uses of technology in litigation are limited only by your imagination; and incorporating it during all stages of the process can allow for laser-focused preparation and presentation.

The “Why”
Technology continues to advance at an exponential rate and permeates our everyday lives. Today, people prefer to communicate by text message or e-mail. Friends and families keep in touch on social media. On the whole, the use of technology continues to increase, while attention spans slowly decrease, in turn affecting our job as litigators.

As litigators, we are storytellers. Our job is to communicate our client’s story to the fact-finder. Thus it is important to remember that people learn by hearing, seeing, doing (kinesthetic), or some combination of the three. Ensuring that the fact-finder retains most of the information presented—if not all of it—should be our paramount concern. The retention of the “story” will depend on the learning style employed. Studies show that a visual presentation has the highest rate of retention, followed by auditory, then kinesthetic. Using technology allows us to aid the fact-finder by leveraging different learning styles to increase the amount of information retained. Combining visual and auditory presentations creates strong memory anchors for fact- finders to rely on, making “show and tell” just as impressive in the courtroom as it was in primary school.

It is best to think of technological aids as today’s butcher-paper pads or foam board “blow ups,” and not as “digital evidence.” Modern technology is a visual aid employed to bring portions of exhibits to the fact-finder’s attention in an effective and efficient manner. Paper is not being replaced. Instead, using electronic versions of exhibits gives you greater control and flexibility over the presentation of paper exhibits. For example, what if only a certain part of an exhibit is admitted? No problem. Using technology allows you to create an adaptable, fluid examination: There is no waiting for everyone to get to the same section or page of an exhibit because you can direct everyone to it with ease.

Need to present social media evidence? No problem. With electronic versions of exhibits, social media or other Internet-derived evidence can be seen in “native” format, making the exhibit more accessible and memorable than it would be on paper. The size or format of an exhibit is no longer a barrier to an efficient, effective examination of a witness. Evidence can be delivered in clear, digestible bites—increasing the impact of witness testimony, saving time, and keeping the fact-finder focused.

Less Is More
Using technology during the litigation process does not require a full-on Hollywood production. Less is more. Best practice is always to follow the K.I.S.S. Principle: Single points or facts per exhibit. A simple demonstrative exhibit is easier to understand. Thus, your aim should be detailed brevity. This is not an exercise in showing how smart you are. Rather, it is an attempt to increase the fact-finder’s ability to retain your client’s story through effective, salient, and memorable testimony. Diagrams illustrate complex issues better than words. Charts or graphs summarize and quantify information easier than a complicated, hard-to-read table. The Federal Rules of Evidence allow for summaries and copies of exhibits to be used as long as the summaries are based on data contained in the documents and the copies are authentic. See Rule 901 (Authenticating or Identifying Evidence), FRE; Rule 1003 (Admissibility of Duplicates), FRE; Rule 1006 (Summaries to Prove Content), FRE; and Rule 1007 (Testimony or Statement of a Party to Prove Content), FRE. Remember, you are not creating new electronic exhibits; your goal is present your paper exhibits in an easy-to-understand manner. Your local rules of evidence likely allow for the use of such summaries, lessening foundational concerns; but, it is always best to check before attempting to use any sort of technology in the courtroom or at a deposition.

Be Prepared
As with most everything, teamwork and practice are the keys to success. Whether you are a solo practitioner or work in a firm, everyone must know how to use every piece of technology you plan to employ. The only way you or anyone else will acquire this knowledge is through practice. Practice. Practice. Practice. The more you practice, the more comfortable you will feel. You should be able to quickly set up and use your technology of choice without any “drama”—this means knowing how your software and devices work. When you bring technology to court, the fact-finder expects you to know how to use it. If you begin fumbling with cords, apps, and devices while setting up or presenting your case to the court, everyone will stop paying attention to what you are saying and start paying attention to what you are doing. Practice will help keep you relaxed and the fact-finder focused on the task at hand—understanding and retaining your client’s story.

Know the rules and the room. There are courtrooms that do not have Wi-Fi or reliable cell-phone service, and there are courtrooms with every possible technological bell and whistle. Do you need to bring a screen and projector? Is the court equipped with its own? What kind of plugs and connectors will you need? Do not guess; take a field trip and see what your courtroom has to offer. Talk with court personnel to see if it’s possible to get into the courtroom early to set up. The only way to be prepared is to know what you face.

Strive to be self-sufficient. Do not rely on anyone but yourself. Have a “go bag” that contains everything you need to be self-sufficient and independent of local amenities (e.g., extension cords, multi-plugs, chargers, thumb drives, gaffer’s tape, necessary adapters and cords, quick ties, batteries, cleaning wipes, Wi-Fi hotspots, VPN access to your office, printers, necessary tools, etc.). Regardless of the size of your setup, be sure to give yourself plenty of time to get everything set up and working. This gives you an opportunity to relax and focus. Once the deposition or trial starts, you should not be thinking about anything but the trial.

Self-sufficiency, however, will not keep things from occasionally going awry. Expect the unexpected. Even the most prepared lawyer will occasionally experience Murphy’s Law. Things fall apart and are forgotten. Despite your best efforts, one day you will experience a system failure. Do not panic. No matter what, keep moving. If you stop to fix the problem, everyone’s attention will shift from the examination or your argument to your dealing with the glitch. Instead, if you act like nothing is wrong, no one will be the wiser.

Following are some of the ways technology can help you inside and outside the courtroom. You could implement just one or all of these suggestions. Start with one you like and understand, and then move on from there.

Portable Legal Library
Having instant access to your legal library is invaluable. Computers and tablet devices can hold a plethora of legal resources, providing instant access to rules of procedure, rules of evidence, case law, and statutes. Imagine storing hundreds of books in a single, portable device. There are a number of programs that can be used to create a portable legal library, and depending on the program these resources can be accessed without Wi-Fi or cell-phone service. Thomson Reuter’s ProView (available for Android, iOS, PCs, and Macs) allows you to access, annotate, and search selected Thomson Reuters e-books and periodicals. Evernote (available for Android, iOS, PCs, and Macs) and Microsoft OneNote (available for Android, iOS, PCs, and Macs) allow you to store, tag, and organize various types of electronic media, along with notes. The Rulebook app (available for iOS) provides up-to-date copies of federal and state rules, as well as secondary sources (e.g., The Bluebook, ABA Model Rules of Professional Conduct). Bookends (available for iOS and Macs) and Papers 3 (available for iOS, PCs, and Macs) allow you to store, catalog, tag, and annotate PDF documents (e.g., CLE materials, case law, books, law review articles, etc.). Having instant access to your legal library is invaluable. These are only a few examples of programs that can be used to create a portable legal library.

Portable Case File
While having a portable legal library is indispensable, so is being able to take your entire case file (minus the bankers boxes) with you to court. If you are scanning your case documents and storing them in PDF format as part of a paperless practice, you are well on your way to accessing your case files on a tablet device. All that is left is a way to access your documents remotely. If you are using a cloud-based storage system like Dropbox or Box, you have the capability of carrying all your case files with you on your iPad, tablet, or computer. Further, some case- and document-management systems have app extensions for Android and iOS. (If you use a cloud-based case- or document-management system, make sure to review your jurisdiction’s ethics rules on storing confidential client information in the cloud.) Other apps and programs, like GoodReader (available for iOS) or PDF Expert (available for Mac and iOS), allow you to manage, annotate, and search within the body of PDF files. Using a GoodReader-type app allows for a little more control and manipulation or annotation of your documents than app extensions. The freedom that comes with carrying an entire case file in a tablet measuring less than half-an-inch thick is priceless; so is the look on the fact-finder’s face when you are able to access case documents and case law without having to search through a collection of bankers boxes.

Technology and Depositions
Having access to information is good, but being able to use it is better. Learning how to use technology in depositions is a game changer. It allows for greater organization of questions and exhibits, and a faster method for creating transcript summaries. So how should you use technology in a deposition? I would suggest any way you can, but the easiest way to start is in presenting exhibits, as technology can bring focus and control to your examination of the deponent. A great app for presenting exhibits is TrialPad (available for iPad), which allows you to present multiple types of exhibits (e.g., PDF, video, and audio files) and annotate those exhibits on the fly. Another great way to incorporate technology into a deposition is staying organized: Both Evernote and OneNote can help you organize both your exhibits and examination outlines.

After the deposition concludes, technology remains important. I have always been told that in preparing for trial, nothing is more important than deposition summaries. If you request transcripts in .txt format, you can use Transcript Pad (available for iPad) to summarize transcripts. This app allows you to review deposition transcripts on your iPad and enables you to designate pertinent portions of the transcript with highlights, flags, or case-specific issue codes. Transcript Pad also allows you to generate reports based on your summary, which is particularly helpful for creating trial designations of the deposition transcript by issue.

Technology at Trial
Each step of integrating technology in a trial builds to form a clear, detailed-oriented presentation. At trial, the goal is the same—to keep the fact-finder focused so they retain a larger percentage of witness testimony. If you have implemented all the prior concepts and suggestions, you now have a sizeable amount of information only a keystroke or gesture away, giving you the ability to handle any issue that may arise. You have a portable legal library and case file. Depositions are summarized, and trial designations created. Exhibits are ready for presentation with TrialPad, PowerPoint, or Keynote, in clear, digestible bites, increasing the impact of witness testimony, saving time, and keeping the fact-finder focused.

Your one remaining task is to incorporate all of this information into an outline examination for each witness. TabLit’s Trial Notebook (available for iOS and on the cloud) helps you craft examination outlines that incorporate evidentiary checklists and cross-references for exhibits. It also helps you keep track of which exhibits are admitted.   

Technology can have a positive impact on your practice. Simply bringing an iPad to court will not benefit your case, but a polished effort to integrate technology throughout the life of the litigation will. Incorporating all or some of these methods will take time, but once done you will notice the effects. Data will be marshaled and leveraged to an extent not previously experienced. The way you practice will not change, but the way you digest, distribute, and present information will. Share your success stories with other lawyers and ask what works best for them. Then refine and practice.

Keywords: family law, litigation, legal technology, technology courtroom tips, trial practice, courtroom tips

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