Tuesday, July 9, 2013

LegalTech – Technology Lessons From Federal Court

As much as most plaintiffs’ lawyers shun federal court, it has its perks.  The first is e-filing: PACER and CM/ECF are among the most efficient and user-friendly systems in use by any court.

For those lawyers who find themselves at hearings or trial in the Baltimore or Greenbelt courthouses, the second perk is immediately apparent upon entering any courtroom. These buildings are well equipped with some of the best technology.  At a recent pre-trial conference in Magistrate Judge Charles Day’s courtroom (Greenbelt courthouse), he asked the parties to schedule a technology tour with the courthouse staff so that we would be familiar with the equipment before our trial.  He also asked us to take advantage of the technology.

The advice was sound, but like most lawyers I hit a time crunch in the weeks before trial, so I never managed to get formal training on the equipment.  I would highly recommend that any lawyer filing a lawsuit in federal court make plans to visit the courthouse soon after filing, when schedules are not so tight.  Take good notes, and figure out what your options are well before you plan for trial.  What you see could impact your collection of evidence (you may opt for video depositions of fact witnesses, for example), because of your options for presentation of that evidence.  Additionally, because there are so many different types of technology, the software interface can be a little confusing.  Formal training will help you to develop a comfort with the technology that can impress the jury.

Federal Court Options
Of course, technology changes, and not each courtroom has the same equipment.  Here is what was available in Judge Day’s courtroom.
  • Video Monitors:  There are personal monitors at each counsel table, on the judge’s bench, at the clerk’s desk, on the witness stand and about eight in the jury box.  There are two large video monitors mounted on the ceiling between the gallery and the counsel tables.  The jury’s monitors are located low—they have to look down slightly to see the screens, meaning that they may not be focused on what the lawyer wants them to focus on at any given point.  In default mode, these monitors can be used to live-stream important proceedings in the courtroom.  For example, when a witness is on the stand, the screens can show that testimony.  This is beneficial, particularly because the witness stand is at the furthest end of the room from the jury box.  
  • Technology Podium: Located smack dab between the counsel tables, the technology podium is simultaneously a convenient place from where counsel can speak to witnesses and the court with a little room for notes, and it is also the hub for managing the court’s technology.  
  • Document Camera: Hidden inside the technology podium and able to be pulled out when needed is a document camera, often called a digital presenter or an ELMO.   The document camera is connected to the video system, and allows the lawyers to instantly display documents to the judge and jury.  It is extremely efficient—the document camera has an auto focus, and a simple scroll wheel for zooming.  This is the easiest piece of technology to use, and allows effective presentation of documents.  
  • VHS/DVD:  Underneath the podium is a VHS/DVD player.  
  • Laptop Hookups:  The technology podium has multiple options for laptop hookups, including an HDMI cable and an RGB cable.  This will allow you to project whatever you have on your laptop directly onto the court’s video monitors.  Remember to test this before you try it—you may need to switch screens on your computer after you plug in (on some computers, this is accomplished by simultaneously pressing the Fn and the F5 keys).
  • Annotations:  When something is on the video monitors, the witness will have the ability to annotate the screen (for example, by making circles or placing arrows) for everyone to see.  This can be useful if the witness needs to identify a particular section of a document placed on the document camera, for example.  At request of counsel, the court’s clerk can save the document with the annotations as a separate exhibit.  
  • Counsel Tables:  Each counsel table also has hookups for a lawyer’s laptop computer.  This prevents the need for fumbling when opposing counsel finishes their presentation, and allows you to jump right into your presentation.  

I Love It When A Plan Comes Together, And I’m Prepared When It Doesn't
The cardinal rule of technology is that you should be prepared in case it goes wrong. Your backup plan might include foam core boards of key documents or pictures, multiple copies of documents to pass out to the jury, or an extra laptop.  I had an audio recording I wanted to play, so I made sure to bring external speakers to plug directly into my laptop.  I also used a PowerPoint presentation, which I printed out so that I could present it to the jury through the document camera in case my laptop or the link to the court’s monitors failed.

In fact, defense counsel almost learned this lesson the hard way.  During direct examination of one of his experts, he wanted the expert to narrate a short video for the jury.  The video was saved onto a CD.  Defense counsel thought that it was a DVD, but it was not formatted to be played on a DVD player—it turns out that the file was simply a standard AVI file.  That means he needed a computer to present it to the jury.  After a bit of unsuccessful trial and error, and after the judge briefly dismissed the jury, I volunteered my services, plugged my laptop in, and was able to play the video.  Defense counsel should have checked the CD beforehand to make sure it worked, and he should have had a laptop to play the video just in case.
Technology woes almost befell me, as well.  That expert went before the jury about two hours before closing arguments.  I knew that I needed my laptop for closing, so I simply left it plugged into the court’s system.  About 5 minutes into closing, however, my computer flashed to the courtroom a warning:  11% battery power remaining.  Of course, I left my computer’s power cable at home that morning.

I had my slides printed out, which I could have used if necessary.  Fortunately, I finished my last slide about 2 minutes before my computer shut down.  One juror told me afterwards that he was relieved I was able to make it in time.  Some of these technology problems can endear you to the jury.

So how else can you be prepared for the unthinkable?  Here are some tools you should consider bringing to trial:
  • Extra laptop, with all case documents pre-loaded
  • External hard drive or flash drive with all case documents pre-loaded
  • Extension cord and power strip
  • Duct tape to prevent trips over extension cords
  • Projector and projector screen (alternatively, a HD-TV)
  • Copies of any important exhibits that can be handed out to the jury
  • An extra power cord for the laptop computer
  • External speakers
  • A small table in case there isn't room for your computer or a projector

Juror Interviews: Thoughts on Courtroom Technology
Throughout the case, we used the document camera, laptop hook-ups, and DVD player to present information to the jury.  I also used a PowerPoint to help illustrate my points to the jury.  Opposing counsel didn't use technology during opening argument or closing statement.  During conversations with the jurors afterward, they informed us that the visual PowerPoint was extremely helpful to their understanding of my case.  They felt that it helped to guide them about my major points and defenses, and made those points easier to remember.  Their recommendation to the defense lawyer:  use PowerPoint in the future. The take-home message is that the jurors appreciated the use of technology, and in fact they preferred it.

Something that I did not do this trial that the jury recommended was a comprehensive timeline of the case.  Something to detail the timing of plaintiff’s medical appointments in particular would have helped them to understand the facts.   This would have helped to give them an overview during opening arguments, and more item-specific timelines (for instance, detailing unrelated medical appointments) could have been used in closing.  Because the jury’s understanding of the facts is crucial for the party with the burden of proof, I’ll be using a timeline in every future trial.

Whether in state or federal court, lawyers have choices on how they present evidence.  Some evidence is best presented the old-fashioned way, with hard copies and enlarged posters.  Other evidence, like de bene esse depositions and other types of video, require some level of technology.  For everything else, lawyers must evaluate their options, examine their resources, and determine how the case is best prepared.  No matter what option you choose, make sure you have a backup plan.

About the Author
John J. Cord (John Cord Law, LLC) graduated from the University of Colorado School of Law. He concentrates his practice on automobile negligence, medical malpractice and workers' compensation.  He provides a wide range of technological services to law firms, including blogging and trial presentation.  Find his firm on Facebook and Twitter.

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