Perry Mason never used a laser pointer, litigation database, video animation or a PowerPoint presentation. All Perry needed were the facts, and the notable efforts of Paul Drake, his personal investigator, and Della Street, his legal secretary.
While times have changed-particularly in the courtroom-Perry's approach is still the one preferred by a majority of litigators. They stand up in a courtroom and present the facts, largely using oral arguments and paper. But for a growing number of clients, judges and jurors courtroom technology expectations are on the rise. The public is beginning to expect a better, more sophisticated and modern courtroom presentation experience. And in response plenty of attorneys are going back to school to learn about some of the new technologies of trial.
Technologically Enhanced Courtrooms Are Still the Exception
While trends favor the use of more technology in the courtroom, the truth is the vast majority of courtrooms are not setup to support the full spectrum of technology tools. In June 2004, the American Bar Association's (ABA) Legal Technology Resource Center (LTRC) published the result of its Litigation and Courtroom Technology survey. Of the attorneys surveyed, only 3 percent mentioned the courtroom availability of plasma monitors, while only 9 percent had access to electronic white boards. Other technology tools were more readily available, but the only ones currently in a majority of courts were televisions (59 percent), and VCRs (59 percent).
In fairness, a full 40 percent of the attorneys surveyed admitted they didn't know if their courtrooms were automated. Their ignorance probably says as much about the state of most attorneys' inexperience with technology tools as it does about courtroom infrastructure. With that caveat in mind, the survey also found that:
Less than 10 percent sited the availability of color video printers, light pens, telestrators, and touch screens.
In terms of evidence presentation, the largest number of attorneys (22 percent) used a laptop with some form of presentation software (e.g., Microsoft's PowerPoint). That same percentage also noted the availability of "real-time reporting equipment capable of delivering a transcript to their" PCs or laptops. And 19 percent indicated they could project transcripts to some kind of monitor.
In her overview of the Survey, Catherine Sanders Reach, MLIS, concluded that "Courtrooms have yet to provide much technology in the way of hardware or software, citing expenses and implementation as key barriers."
Some courts, however, are taking a decidedly more aggressive stand, at least with regard to making available technology tools in their courtrooms. In the Winter, 2001 issue of Litigation Magazine Judge Kathleen McDonald O'Malley, U.S. Northern District of Ohio, was quoted as saying "In five years every federal district court in the country is going to have [at least one courtroom outfitted with] electronic presentation equipment." When we caught up with her to see if her prediction is close to being realized, she was unequivocal.
"Clearly we've reached that goal, and moved well beyond it," concluded Ms. O'Malley. The Northern District of Ohio, for example, has 12 judges, with seven courtrooms currently outfitted for technology. Additionally, they have funding to bring another three courtrooms online, which will shortly bring their total to ten. Other federal courthouses may not have as many courtrooms setup to use technology, but they all have at least one, and the trend is toward increased technology infrastructure. Why?
From Judge O'Malley's perspective, trials that make use of technology are simply better. "They're far easier and much more efficient," she explains. "The level of juror understanding is much higher. And the jurors love it. It keeps things more interesting."
Technology Training and Vendors Are On the Rise
For a variety of reasons Judge O'Malley's perspective is still in a decided minority. Most lawyers don't seem to be running headlong toward the use of technology in the courtroom. Reasons for their reluctance often involve training and cost. For example, the LTRC survey found that only 24.9 percent of their respondents received some kind of technology training. Some of that training was available via in-house training materials. For the larger firms in-house staff provided training. And of course trial technology vendors also provided training-at least for their products or services.
The preceding illustrates one of the problems with attorneys' use of these new trial tools: where do they turn for objective, complete and thorough education? Some law schools and other organizations are beginning to offer training in the use of legal technology tools during, and in preparation for trial. For example, the Courtroom 21 project has recently announced a courtroom audio/video training and certification program.
Courtroom 21 is located at the College of William and Mary and is a joint project of the National Center for State Courts and William & Mary Law School. Its purpose is to be "the world leader in court technology demonstration, experimentation, training and education." Some of its 2005 training offerings include: Courtroom Technology: A Survey Course for Litigators, and Persuasive Courtroom Presentation Technology. Some of the topics to be covered in the Survey course include:
Trial and Pre-Trial Issues
Technology Essentials for Litigators
Manage Your Case Using Litigation Support Software
Using Presentation Software to Persuade
Using Effective Courtroom Equipment: A High Tech Alternative to blackboards and Flip-Charts
Real-Time Court Reporting
Video-Conferencing at Depositions and Hearings: A High Tech Travel Alternative
Future Courtroom Technology: Is it a Virtual Reality?
Genuine Impediments to Technology Use
While cost, courtroom infrastructure, and training have already been sited as some of the reasons most attorneys aren't making use of technology in the courtroom, others identify good, plausible reasons for leaving the electronics at the office. In his web site article "Using Technology in the Courtroom — 10 Questions to Ask Before You Pull Out the Laser Pointer" Jeffrey R. Harris, an attorney with the Savannah-based law firm of Scherffius, Ballard, Still & Ayres, suggests several important reasons. Apart from making sure the attorney is familiar and learned in the ways of using the technology, he also notes that some technologies are simply too complex for jurors to understand. In these instances the technology can actually impede juror understanding of the facts and legal issues. Other potential issues include making sure to have a backup plan if the technology fails to operate, and making certain the technology display, animation, or other evidence can be admitted. In the first instance attorneys should always remember hard disks crash and motherboards fail. With regard to admitting evidence, Harris reminds technology users to not "get burned by failing to have a plan of admissibility for each and every item of evidence."
In her conclusion to the LTRC Survey overview Ms. Reach noted that the Survey served "as a sobering background for those who crave a total technology trial. Firms are slowly embracing litigation technology, but there is still a long road to follow before the technology is ubiquitous..... Many lawyers are hesitant to spend thousands, much less hundreds of thousands, of dollars on sophisticated hardware and software."
While the state of trial technology is still unfolding, one thing remains true: some of the successes already tallied by its early adopters is only likely to increase the velocity of change.
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