Make no mistake: Technology is barging through courtroom doors. It has the power to do amazing things when dealing with large numbers of documents or explaining complex issues. In addition, widespread use of the Internet almost guarantees that electronically stored information (ESI) and e-discovery issues will arise in most litigation matters. Like it or not, judges and lawyers alike will have to get comfortable with it.
How can lawyers make the most of the brave new world of courtroom technology? Here are tips for making sure the technology you want to use works as it should—and that means ensuring it doesn’t annoy the judge or give the other side room to complain, for real or bogus reasons.
1. Be aware of possible objections, evidentiary standards and foundational requirements related to your use of technology in the courtroom.
2. Don’t count on surprise to overwhelm your opponent. Exchange information concerning the technology that may be used during trial (including in opening statements and closing arguments) to determine in advance if there will be any objection.
3. Check local rules and also inquire in the legal community and of the judge’s chambers about the particular judge’s acceptance of technology during trial.
4. Take the lead and make sure the judge will be comfortable with whatever is proposed. There’s no point setting up something that will not really be helpful to either judge or jury. We’ve seen a lot of equipment get set up for a PowerPoint presentation that wasn't effective and ultimately wasted rather than saved time.
5. Make contact with the court administration or, if known well in advance, the trial judge to determine what facilities are available in the courtroom. This should be sorted out long before the trial—not at trial (though that’s often not the case).
6. Remember that your judge might be willing to use technology but may not have access to the needed resources (hardware, software or IT people). This puts the onus on you and your client to make technology work for you.
7. Make commonsense investments. When a senior lawyer bills at $800 per hour, a junior at $300 per hour, a law clerk at $200 per hour, and a new DVD player costs only $50 … saving 10 to 15 minutes of court time can more than justify an investment in technology. Explain this to your client and the court. (And remember —the player can be reused.)
8. Call the judge’s chambers in advance of trial to request an opportunity to test your equipment in the courtroom to ensure compatibility.
9. Be ready to educate and innovate. From a cost and ease-of-use point of view, something as simple as a document CD and Adobe Acrobat might make greater sense than a more costly and harder-to-use tool like Summation.
10. Have a backup laptop running with your trial presentation in case your primary computer experiences problems. Also be sure you have a low-technology paper backup in case your technology fails.
11. Strongly consider using a technology-literate assistant or even a technology consultant to assist with the technology used during trial.
12. Keep a digital camera handy to copy a document when you don’t have a scanner or copier available, or if a document or object is too big, bulky or unwieldy to copy or scan.
13. Remember that, above all, you must be an effective lawyer. Most times, use of technology will not convert a loser case into a winner. We’ve actually seen a vigorous use of technology win the case for the other side because the presenter lost perspective on the credible facts in his case.
Special Tips for Dealing with ESI and E-Discovery
14. Be or get a geek. If you don’t understand what ESI is and where it might be hiding, get help from someone that does.
15. Start from day one. Think e-discovery from the first meeting with the client—including finding, preserving, reviewing and producing potentially relevant ESI.
16. Come to court having already discussed and agreed with your opponent on e-discovery disclosure and formats—including whether metadata is being requested.
17. Remember that metadata can bite you. Be aware of any applicable prohibitions against trying to obtain information from metadata in relation to communications between lawyers.
18. Make proportionality the rule. You shouldn’t have $50,000 in e-discovery costs on a $30,000 matter.