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Samuel A. Guiberson
Law
Technology News
August 1999
Trial lawyers must use good judgment in finding a natural equilibrium between words, sounds and pictures.
TECHNOLOGY has become so integrated into the way we express ourselves in court, not because we want to use it for its own sake, but because we need it for our client's sake. It's not about special effects. It's about being especially effective.
What's changed in recent years is that advanced capabilities to present digital audio, video, graphical presentations and animation that were once the exclusive preserve of big law firms and million-dollar cases, have now trickled down in price and complexity to be within reach of every trial lawyer. Where once counsel had to hire a team of expensive specialists with a string of advanced degrees to employ these technologies in court, any one of us can do it today—if we obtain the necessary bandwidth.
Having multimedia bandwidth in court means being able to communicate with a jury in audio, video, images, and animation in a fluid blending of all the modern media from which we customarily receive communications in everyday life.
Using many media in the courtroom isn't adding something new to the way we ordinarily take in information; we're only applying the media-rich vocabulary we've grown accustomed to in American culture to a new setting.
Today's digital technology has so simplified the use of digital media in courtrooms that the limitations we've known in the past no longer exist. Lawyers' language-dominant culture and the limits of the technology, not judges and rules, have restricted our tools of advocacy to the powers of words.
Using digital media to express your case is not like rearranging the furniture in the courtroom, where counsel merely drops a laptop or a projector on counsel table and goes about the usual business. It's not a matter of choosing a fresh technology décor, it's something living, something vital, something that requires trial lawyers to change what talents and skills they use to persuade.
Today, making an argument is much more than phrasing words. It requires phrasing sounds and images to focus the attentions and evoke the imaginations of the jurors.
Every part of the multimedia advocacy is now in the control of the trial lawyer. That brings litigators some opportunities and it also brings us risks. Lawyers misunderstand digital media when they assume that its success is derived just from being digital. In fact, the art of making an argument with a digital vocabulary requires trial lawyers to learn a new language, one with its own rules and artistry.
The best example comes in the use of presentation programs. The presence of a colorful background and some words on a monitor or a large screen do not persuade nearly as much as they distract a jury, unless the screen art resonates with the verbal message you are sending.
Just as there are orators like Winston Churchill, there are also orators who sound like Daffy Duck. Just because we use graphics in conjunction with words to express ourselves won't make Winstons out of Daffys. As it has always been with oral advocacy, there are aesthetics to graphical expression that lawyers have to acquire either as a natural gift or by laborious practice.
The key to using many media in trial is balance. Never use audio, video, or a screen presentation like a tuba with one note. Find complementary notes in other media. No matter how novel using computer exhibits or presentations may be, the juror will tire of too much of any media.
Remember, it’s many media, not any media. The trial lawyer has to use good judgment in finding a natural equilibrium between words, sounds and pictures.
Sometimes it is restraint in the use of technology that provides the most impact. In one trial, we were very aggressive in using digital display of the document exhibits, transcripts of digital audio, and PowerPoint presentations on a twelve-foot screen.
It was an "all digital" trial. When we reached one particular exhibit of very great importance, instead of projecting it, we passed it to the jury. They looked at it, touched it and passed it on. In a case where everything else had been digitized, we relied upon the sensation of touch between the digits of the human hand to create a special emphasis and significance for that single exhibit.
Along with knowing when not to use a digital media comes knowing when not to use two or more media together. Sometimes, using two media together neutralizes the impact of both. For example, it was a much more powerful and emotional experience to hear the tape recording of the explosion at the Murrah Building in Oklahoma City without seeing any photograph of the devastated building, or of the building nearby in which the recording was made.
This was true because the presence of a photograph attaches an image to the sounds instead of allowing the listener's imagination to "see" what she hears. Hearing without seeing evokes the imagination to visualize what is being heard and, in this instance, allowed the listener to experience the fear, the shock and the chaos of that horrific moment much more deeply than would be possible when the sounds heard are framed in a photograph.
The human imagination is the greatest resource for communicating ideas into the mind. It takes the imagination of the advocate to find the words, pictures and sound that the jurors' imaginations can seize upon to form their own inner view of the events they are asked to decide upon.
Replacing the imaginations of the advocates and the jury with computer stimuli is never the point. What technology is here to do is to allow people to put themselves inside what they see and hear in a way that brings to our courtrooms the full range and dimension of the human mind and senses.
The new media-rich advocacy model brings to court what all of us already know from our everyday experience—that we learn from what we see and what we hear more than from what is spoken. The media itself, whether digital or otherwise, is not the message, but the message's messenger.
Sam Guiberson is a litigator
and consulting attorney in cases involving the use of technology in complex
litigation, technology crimes and law enforcement technology. He is based in
Houston.
