TECHNOLOGY AND ADVOCACY
IN THE NEW TECHNOLOGY COURTROOM
Samuel A. Guiberson
Southwestern University Law Review
Volume 28 Number 2, 1999
Court technology is not about
installing technology in courts. It is about people using technology in courts.
As we make the transition to the Digital Courtroom, we need to be guided by the
right philosophy as to what technology we put in court and why we put it there.
The worst thing that can happen to
trial courts in the throes of the information revolution is for judges to
believe that they face only a problem of logistics - how to get computer
technology installed in their courtrooms. Technology is not a courtroom fixture.
We don't need to remodel courtrooms with the technology du jour in order
to make them relevant. We don't need to impose court-sanctioned standardized
sets of court technology components upon litigants, and then compel them to use
what they find at the courthouse. We need to avoid trapping our courts in the
trappings of perennially outdated technology.
Technology in court is a dimension of
trial advocacy, not a choice of interior decor. Instead of creating proprietary
technology installations in courtrooms which rely upon judges to determine
lawyers' technological needs, judges should commit themselves to acquiring
insight into which technologies truly work for lawyers. This approach mandates a
commitment to the slow and unglamorous process of observing and learning how
trial lawyers use technology most effectively, and most ineffectively, in court.
Lawyer-Centered Court Technology
The technology choices lawyers make in
presenting their cases are as much a part of their individual advocacy as the
words they use before the jury. Everything about the technology in place in a
courtroom should flow from the unique profile of the case before that court.
Technology is not boilerplate. Since no
two cases are ever alike, why should the computer litigation support technology
be any different? Every client in every case deserves a lawyer who will take a
fresh look at which computer support and presentation techniques are right for
his or her lawsuit. In litigation computing, there is no one way to do it right
every time. The case should dictate the technology.
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. Computer litigation support
is like clothing; no single design for litigation information management fits
any two lawyers or any two lawsuits the same. It has to be tailor-made to fit
the occasion.
Once there is a broader understanding
that courtroom technology should evolve from the way the lawyers want to try
their cases, an open system model for court technology will emerge in which any
attorney's technological advocacy can succeed. We have to create an open
architecture for court technology that allows for flexibility and case-specific
uses that encourage, rather than inhibit, creative advocacy within this new
medium.
Lawyer-centered court technology
doesn't mean that lawyers control the court. Many judges who have not
experienced the way digital presentation technology, communications, and
litigation support are woven into the fabric of a trial believe that the
technology dominates the proceedings. The reality of the computer-enabled
courtroom is quite different. It is a more dignified and less distracting
environment in which to try a case. The technology is not an independent force
with which the court must contest. Court technology doesn't require special
practical or procedural restraints. It simply requires a common understanding
between the court and the parties as to how it will be employed and how it will
be integrated into the standard rules for the admission and demonstration of
evidence. Obviously, courts need to protect the jury from distractions and from
the prejudice of exposure to un-admitted exhibits. In so doing, any court should
assume that the technology can be trusted, if the court trusts the counsel who
is responsible for it.
"State-of-the-art" in computer technology
is a consumer-driven moving target that neither judges, nor anyone else can hold
still. Judges can only allow each new wave of technology to enter court as an
innovation and exit in obsolescence, as does every computer product purchased
for use in any law office. Technology in the courtroom can stay open to the
process of technological change only by allowing litigators' cutting edge
technology to act as a compass for what the courts should embrace. By so doing,
the courtroom of the future will always stay in step with the law office of the
future. Courtroom technology is not a species apart. Employing common
technologies in law offices and in courts will ensure that litigators can
express themselves well with trial technology, wherever they find it.
Trial Tactics are Now Information Tactics
In any case, large or small, how well
attorneys visualize the facts they have to work with sets the limits for what
can be done to win at trial. What we see in information and what is there to see
is not necessarily the same. The larger the universe of facts that we must draw
into our minds and hold there, the more our advocacy limits are set by how we
choose to organize those facts. The limits of our methods of analysis have
become the limits of our advocacy. In cases with a large array of discovery
data, what can be achieved in trial is predetermined by the design quality of
the technological means available to counsel to prepare for trial. Information
management is now the DNA of modern trial advocacy.
If trial tactics flow from information
tactics, then broad and timely access to information in the digital form in
which it can be most effectively managed exercises great influence over the
course and outcome of complex litigation. The digital discovery process needs to
be brought to the forefront of the courts' management of pretrial discovery.
More trial courts need to take the initiative in scheduling the exchange of
documents in digital form, and encourage the digital production of documents,
pleadings, and reciprocal discovery. Pre-trial conferences should include plans
for the use of digitized exhibits, computer-generated exhibits, and in-court
litigation support and computer-based evidence presentation logistics. A trial
court's mismanagement or passivity in setting the agenda for the digital aspects
of discovery and the use of court technology during trial can greatly diminish
the potential benefits of computer litigation support and trial technology.
Litigation is Local - Preparation is
Global
Lawsuits may be tried in one place, but
the information needed to win them is now global. The New Courtroom has to be
wired within and wired without. It must enable lawyers to employ, exchange and
present in court all of the digital trial information they have assembled to try
the case, and it must also allow counsel to reach outside of court to resources
that have heretofore had no part in the routine conduct of trial.
For generations, lawyers have been
trained to expect to find all the information they need within the boundaries of
legal precedent, statutes, legal publications and periodicals. While every trial
is still rooted in the particulars of the litigants, even the most routine case
can benefit from a lawyer's recognition that conventional sources of legal
research pale in comparison to the bounty of useful information to be culled
from the universe of info-bytes now online. In this information-nouveau riche
world, there is no limit to what resourceful research and creative thinking can
bring within the advocate's reach.
Trial practitioners must break down the
barriers of conventional thinking and recognize the professional validity of
utilizing every sort of electronic information source. Access to people,
information, expertise and ideas have unlimited jurisdiction. If trial lawyers
can become versatile and ingenious in locating and exploiting what is at their
beck and call online, it is possible for any lawyer to bring an info-cornucopia
to the courthouse through the eye of a laptop needle.
The New Courtroom must give litigants
open access to the full range of communication technologies they are afforded
outside of court. High speed digital lines, in-court networking, and Internet
access are all essential tools for the trial lawyer, not only when she is outside
of court, but when she is in court as well. This will enable complex, ongoing
litigation to be managed effectively from the courtroom by the trial counsel.
Technology is Advocacy
To fully realize the potential of the
New Technology Courtroom, we need to rethink what trial 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 McCluhan. 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 now for
lawyers to be wordsmiths - they must also be imagesmiths, soundsmiths, and
videosmiths. Lawyers have to communicate with juries on every open channel.
Our culture is media-rich,
multi-channel, and sensorial. People who serve on juries don't read dry legal
briefs in book-lined rooms. They take in 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 a lawyer
can't keep a multimedia beat, jurors' minds will wander. What clients require
now are lawyers with media rhythm - the gift of using many communication media
effectively. Today's trial lawyer has to be an effective advocate with
pictures, sound, video, and language while keeping each medium in balance so
that the jury isn't
overwhelmed by the overuse of any one. The modern trial lawyer has to learn how
to use all trial media in the right proportions in order to focus and extend the
jury's comprehension of the message.
If trial lawyers limit the scope of
their advocacy to what is traditionally recognized as "lawyerly," they
have wasted the new technology. Because enabling lawyers to reach jurors with a
broad bandwidth of advocacy input is what today's converging multimedia and
computer technologies do best. If trial courts limit the scope of what trial
lawyers may do to the traditional forms advocacy has taken in the past, they
will waste the talents of a new generation of technologically-capable lawyers
who see a tapestry of expression in trial advocacy, where before there was but a
single thread.
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