By Andy Seldon
Law Technology News
July 6, 2006
Four years ago, our courtrooms in the U.S. District Court for the
District of Minnesota were equipped with new technology tools, including
digital document cameras, real-time feeds, video and audio conferencing, and
more.
Since then, I've witnessed effective and ineffective use of courtroom
technology by attorneys, support staff and trial consultants. Here are 10
common mistakes:
1. Failing to learn and exploit technology. When a courtroom is
equipped with technology, the judge and jury expect lawyers to use it
successfully. Simply knowing how to operate the technology is not enough;
you must be comfortable and facile. And it's not enough to delegate -- even
if you have experienced support staff or consultants handling the mechanics,
you must demonstrate a solid grasp of technology if you are going to hit the
mark.
Technology should feel effortless. Any interruptions, such as fumbling
with controls on the document camera, can have a negative impact on the
outcome of your case. If jurors perceive that you are a novice with
courtroom technology, they may question your legal expertise as well.
2. Incompatibility. With advancements in hardware and software,
it's now possible to use many different media formats from a single device,
such as a laptop. Before you load up your laptop or external storage device
with presentation tools, be sure that your equipment is compatible with the
courtroom's technology.
For example, some laptops generate audio interference over some sound
systems. Although most work fine, yours may require minor adjustments to
display resolution or video refresh rates. Test your laptop well before your
trial, so you can resolve any issues before they disrupt your case. As your
trial date gets closer, you will have plenty of other things to deal with.
3. Objectionable evidence. It's easy to get mesmerized by the
technological capabilities. But don't forget foundation requirements before
you use any kind of trial technology. Verify the admissibility of every
piece of evidence. If chain of custody is an issue, make sure you are able
to explain and prove it from start to finish.
4. Going solo. In a complicated case, attorneys need to focus on
their role, and leave management of litigation support technology to
consultants or support staff. The earlier you bring these team members into
the process, the better the production. Some may argue that handing this
part of the case over to someone else will steal your thunder or confuse the
jury, but a good courtroom technology consultant will be invisible.
And because they deal with problems on a regular basis, they can fix them
-- or quickly switch to plan B. If your case is very document intensive, a
bar code system established by the consultant will help you to control the
presentation with very little effort.
5. Unprepared witnesses. Your witnesses also must be comfortable
with your technology. Most will be nervous -- don't make it worse by failing
to prepare them for what tools you will use during trial. The jury's
impression of your witnesses (expert or lay) will be affected by how they
interact with your technology.
6. Muddy waters. Using the latest technology tools doesn't
guarantee that the information you present will be understood by the judge
and jury. Help your audience see and hear your arguments. Be sure your fonts
are big enough to be read from the jury box, and be careful of color choices
-- some jurors may be color blind. Successful presentations usually require
a combination of technology to generate the biggest impact.
For example, using audio recordings can be a powerful tool. But if you
don't provide synchronized written transcripts the jury may not understand
what was said.
7. Overusing technology. Just as clumsy use of equipment can hurt
your case, overuse of technology can desensitize the jury. It is easy to get
carried away, but just because you can present something electronically,
doesn't mean you always should.
Be careful about how much physical space your technology consumes. In a
recent patent infringement case, the parties used so many different types of
display technology that it disrupted the flow of the case. Everybody was
either tripping over it, or constantly moving equipment to keep the juror
sight lines open.
8. No backup plan. Courtroom technology is reliable, but accidents
and equipment malfunction can and will occur. If you have a long trial, you
may be allowed to fix the problem during a recess. But if you have a short
trial or a tight trial schedule, you may be required to immediately go to
plan B. If you are presenting evidence from a laptop, be sure you have a
backup laptop and backup external hard drive with the same files. If you are
providing a projector, make sure you have a spare bulb.
Explain to the jury during your opening statement that various forms of
technology will be used during the trial and that at some point equipment
may fail, or a mistake may be made requiring a recess to get things back in
order. Then if a mishap does happen in the middle of the trial, it isn't a
surprise to the jury and they will be more forgiving.
9. Failing to make the necessary arrangements with court staff and
checking the local rules. Judges dislike surprises, so be sure any
modifications or additions to the courtroom technology are approved prior to
use.
In one case, a party spent a lot of money on large posterboards, only to
find out that they aren't allowed. Save yourself the embarrassment of
explaining this mistake to your client by working closely with court staff.
Most courts have online user manuals, local rules and contact information on
their Web site, so check this valuable resource early.
10. Not matching the technology to the case. Juries like various
forms of evidence display, but be sure the use is appropriate. In a document
intensive patent infringement case, it makes sense to invest in a
sophisticated cataloguing system such as bar coding. But if your case is
simple, keep it simple. You don't want the technology to be the focal point
of your argument. The technology should enhance your argument without
getting in the way of your message. Studies consistently show that jurors
are responsive to electronically presented material, and retain more
information than in paper-based presentations. Create an advantage by
effectively using the available resources.
Reprinted with permission from the July 2006 edition of
Law.com, (c) 2007 ALM Properties, Inc. All rights reserved. Further
duplication without permission is prohibited.
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