Six Secrets for Savvy Courtroom Technology

Samuel A. Guiberson

Law Technology News
July 1999

Litigation support is like clothing:  no single design fits any two lawyers or any two law suits the same.

Team-build with technology. Most complex litigation involves several law firms—each with its own technology culture and each believing that computer litigation support must be done the way God personally explained it to them.

The usual mode of resolving technology conflicts among law firms resembles wailing chimpanzees battling to become alpha chimp.  The prevailing litigation support technology usually is that of the most prestigious firm involved in the case, or the firm whose corporate fingers are most tightly woven into the client's scalp.

Neither big firm status, nor having an “in” with the client is a reliable predictor of technical virtuosity.  The usual result is mediocre trial support, squashed creative process, and lukewarm support from the firms whose computer litigation support resources were spurned.  If the lead litigators in a large case can recognize that collaboration in technology decisions is a way to integrate different office cultures, then litigation computing becomes the first common vocabulary among the different firms.  Only when lawyers blend their collective experience with litigation computing to knit themselves into a trial team can they hope to effectively try a case together.

Let the case dictate the technology.  Technology is not boilerplate.  In litigation computing, there is no one way to do it right every time.  The less conventional we are in the way we use technology, the more advantage there is to gain competing against those lawyers who think they can buy their way, instead of think their way, into computing virtuosity.

No two cases and no two clients are ever alike—why should the litigation support be any different?  Once a case strategy is in place, the litigation support plan and the technology necessary to execute it will flow from the decisions made about how to try the case.  Litigation support is like clothing; no single design fits any two lawyers or any two lawsuits the same.  It has to be tailor-made to fit the occasion.

Information management is the DNA of trial advocacy. The larger the quantity of information we must absorb, the more critical our choices in managing that information become.  Out of a great gob of trial-related data, we can only exploit what we can imagine could be useful.

You can't find a trial strategy in computerized information if you don't organize it in a way that allows you to find what you didn't necessarily know would be there.

You have to know from experience what you are likely to reap before you sow it.  Once we can succeed in picturing what information would work to our client's benefit, we can use it effectively.  Without seeing the pattern of an advantage in the case data, it might as well not exist.  If the lawyer can't find it, the lawyer can't think it.  If the lawyer can't think it, the lawyer can't argue it.  What you can accomplish at trial is predetermined by how well you design your analysis of all the information you draw upon in court.

Let the technology you use be the technology you use before the jury.  There is the notion among lawyers who use computing in court that they must have one set of programs to use in everyday law practice and another to use in court.  They think that the technology a lawyer uses to understand the facts of a case is different than what a juror needs to understand the facts of a case.

This attitude hurts clients a great deal more than it hurts jurors.  There must be continuity between the litigation computing techniques we use to learn the evidence, and how we demonstrate what we have learned in the courtroom.  If we employ the same computer tools during trial that we work with on an everyday basis in our offices, we are much more relaxed and capable of making them work effectively.  Your own experience using your everyday software in court communicates a comfort level and a self-confidence to the jury in a way that a slicker, more packaged presentation never will.  If you stand back, flip a switch, and let some high gloss, canned and corporate 3-D animation take over, the jury will perceive your disengagement, and remain equally aloof.

When it comes to courtroom advocacy with technology, what you know best is what you can sell best.  If you show jurors you are working hard with the software by the sweat of your own browser, they will sense your command of the computer presentation and the authenticity of what you portray through it.

Use courtroom technology out in the open where the jury can see it.  In using technology in court, your first inclination may be to conceal the guts of it, so that you will look like a polished presenter with a tightly wound show.  Unfortunately, using computers in court isn't like a slide show. It is much more dynamic.

Today's juror is most likely a computer user too, using the same software in the home and office as the lawyers do.  Why not serve up some home cooking in the courtroom?  Why not work with the shrink-wrapped software we all know where the jury can see you, the trial lawyer, poking keys and clicking just like they do at home and in the office?

We don't need to have exhibit butlers presenting our computer graphics on crushed red velvet pillows; we do it ourselves because we want the jury to see us labor for our client.  Your courtroom digital exhibits, transcripts, images and videos are all courtroom aids you use to make your case.  Get them in front of the jury and keep them there.  Use your laptop at the podium to cross-examine witnesses and work your image presentations yourself.  Don't be inhibited about letting them see your windows desktop between exhibits.  Connect with your computer, so that they can connect with your case.

Trial advocacy is total communication.  We need to rethink what we think advocacy is.  Lawyers are trained to write words and speak them—to be literate men and women, more in the image of Sir Thomas More than Marshall McLuhan.  The problem with what is considered lawyerly advocacy in our profession is that it belongs to a different world than the one jurors live in. It's not good enough to come to court with only words; you have to be an imagesmith, a soundsmith, a videosmith.  You must communicate with your jury on all channels.  

Our culture is media-rich, multi-channel and sensorial.  People don't read dry legal briefs in book-lined rooms.  They get sounds, moving images, words and still pictures in a cyclorama of literal and subliminal persuasion, entertainment and information.  The viewing public has an accelerated learning tempo.  If your courtroom communication can't keep the beat, minds will wander before your eyes.  What clients need now are lawyers with media rhythm—the gift of using different communication media effectively.  Today's trial lawyer has to be an effective advocate with pictures, sound, video, and words while keeping media-balanced, so that the jury isn't overwhelmed by any one medium.

Total communication means you use all available media in the right proportions to focus jury attention and keep it while you work your usual lawyerly magic.  Without it, a good message is missed.

If that happens, you've wasted your time and your money learning how to use technology; because reaching jurors with a broad band of advocacy input is what today's converging multimedia and computer technologies are all about.