Ten Commandments for Using Technology in the Courtroom
In January 2017, the marriage between an iPod, a digital camera, a cell phone, and a PDA reached what family law junkies refer to as a long-term marriage.2 Ten years prior, in January 2007, Steve Jobs announced the Apple iPhone—a device that brought about robust changes by unifying four separate devices used by consumers at that time.3 A decade later the iPhone is now decidedly ubiquitous for lawyers. Virtually all lawyers now access work email, perform legal research, or talk to clients or colleagues away from their offices using smartphones, laptops, or tablets.4 The intuitive interface and convenience of smartphones is such that 70% of lawyers use their smartphones to do legal work while they are still at the office.5
Family law practitioners and judicial officers especially work tirelessly for the betterment of families. Continuing legal education courses are often taught by webinar and attended after a full workday or on weekends. Smartphones ring, text, alert, and retrieve data day and night. Emails are read and responded to during pre-dawn hours.
Although most family law attorneys use smartphones, tablets, and/or laptops outside of the courtroom, they often return to that pre-iPhone era when they step into a courtroom. Traditional paper files and three-ring binders are used for trial exhibits. Paper pleadings are regularly filed by a member of an attorney service or messenger service, which involves physically appearing at the courthouse, waiting in line, and handing paper copies to a court clerk for filing. During hearings and trials, witnesses are instructed to retrieve physical binders and directed to pre-tabbed exhibits while the balance of those in the courtroom patiently wait for the witnesses to (hopefully) find the correct binder in a sea of binders, locate the correct exhibit, and turn to the intended page.
The percentage of attorneys who report using a laptop in the courtroom for various purposes increased from 49% in 2015 to 55% in 2016 across the board for firms of all sizes except firms in the two-to-nine attorney range.6
In an effort to improve upon the overall courtroom experience, the Technology Planning Task Force of the California Judicial Branch issued its strategic plan for technology on October 2, 2014. Therein the task force identified potential areas of focus for new or updated legislation, including courtroom technology, finding that “Technology has the opportunity to improve the overall courtroom experience, optimize the utilization of scarce resources, and increase access to justice.”7
While the use of technology has not yet penetrated the practice of family law to any marked degree, it’s time to promote a change. “We have not quite reached the level of ‘if you can Google it, you must’ but we are fast approaching it.”8
In making the courageous decision to deliberately implement change and improve courtroom effectiveness, here are a few tips and guidelines to help transport you out of the pre-iPhone era.
1. Be Prepared
An essential component of being prepared is first obtaining permission. Be sure to ascertain whether the court is amenable to the use of technology. This term is referred to as Always Obtain Permission (AOP). If the court has its own Digital Evidence Presentation System (DEPS) or WolfVision™, after you have obtained permission for its use, inquire about attending an orientation where you can conduct a rehearsal with the system to resolve any connectivity problems and display problems typically caused by formatting issues, ensure you have the appropriate type and number of necessary adapters, and identify any potential audio issues. If you are utilizing the court’s system, be sure you have the requisite knowledge how to switch between video sources such as from your laptop or iPad to the document camera. If you are utilizing the court’s system, do not request or attempt to change or reconfigure the system. If you will be displaying video, ensure both the video and any accompanying audio are viewable and audible. Any video you intend to display should be cued to start where you would like it to start. Be mindful of the requirements set forth in California Rules of Court, rule 2.1040 et seq.
If you are Bringing Your Own Devices (BYOD) and will be Doing It Yourself (DIY), be sure your devices work and that you know how to operate them. Be mindful of the physical layout of the courtroom. When BYOD, be prepared by, at a minimum, knowing how to operate those devices, how to connect the computer, iPad, and/or projector screen to external displays, and what adapters you need to display from your laptop or iPad. Have a backup in the event your device(s) fail(s). Prepare for the unexpected.
Be prepared that there may be insufficient space in the courtroom to accommodate the use of technology. Within the confines of a specific courtroom, you may need an alternative, simpler plan to use technology. Using technology in the courtroom is a privilege—not a right. It is important to consider whether a family law department with a robust calendar can tolerate or accommodate your equipment in the courtroom. Many family law departments are busy and unable to allow the time you might need to set up more complicated technology. The takeaway—when BYOD for a DIY, don’t forget to AOP!
Be prepared that the court may not be technologically minded. Over the years, traditional litigators and judges whose skills were honed without the newfangled gadgets were not readily willing to embrace new technology.9 As time passed, however, the interest in litigating in high-technology courtrooms increased and the population of old-school litigators dwindled.10
Once you have addressed these concerns and obtained permission to use presentation equipment, make sure you have the requisite knowledge about how to operate the equipment. In other words, practice, practice, and practice again.
While equipment is generally reliable, malfunctions can occur. Be prepared to implement a Plan B and a Plan C. If you are relying on your laptop or iPad to display your opening statement, display exhibits, and deliver your closing argument, Plan B should consist of having a second laptop or iPad that is an exact duplicate of your primary device, ready to go in the event your device fails. Plan C consists of bringing hard copies of that which you intended to electronically present.
A solid technologically assisted courtroom presentation looks simple and seamless. It is storytelling at its heart. It has a theme. It is simple. Believable. And while it may appear to be effortless, in the background it takes permission, preparation, and patience.
Being completely familiar with the facts, competent with knowledge of the law, and convincingly arguing one’s theory have always been key ingredients in the recipe of a great trial lawyer. Technology changes none of that. With increasing reliance on visual communication, marrying a trial lawyer’s audio toolbox with visual presentations is becoming ever more essential to trial lawyers’ courtroom success.
Smooth, confident presentation of evidence conveys legitimacy, but takes time and repetition to master. Without the use of technology, attorneys are accustomed to their audience focusing on them. That focus shifts away from the attorney and onto the screen when technology is used as a visual mode of communication. Knowing how and when to use a visual display to augment or highlight an oral presentation takes both practice and patience. One of the most powerful moments in a courtroom is when a trial attorney is delivering a closing argument, and a few moments before concluding, the attorney lowers his or her voice, the screen goes blank, and the courtroom goes quiet. What counsel states in the few seconds that follow is powerful and often unforgettable.
2. Be Patient—Start Slowly
Like a novice with a gun, an unskilled user of technology in the courtroom is more likely to shoot himself/herself in the foot than to score a bull’s eye.11To avoid this, start slowly. Effective use of technology in the courtroom is a skill that takes time, patience, and practice to master. Perhaps your first use occurs at a mediation, a study group, or a brown bag lunch meeting. Using a less formal environment will provide you with the opportunity to develop the skill and confidence to enable you to succeed in the courtroom.
The District of Columbia Courts constructed a high-tech courtroom and evaluated the effective use of technology in the courtroom. Honorable Herbert B. Dixon, Jr. was assigned the courtroom and encouraged the use of the courtroom’s new technology. Judge Dixon observed that some attorneys are naturally drawn to the use of technology in trials and gravitate to the use of the courtroom’s technology at a faster rate than he had previously experienced. In his article, “The Evolution of a High Technology Courtroom,” 12 he shares one such example:
During one of my first trials during the survey interval, one defense attorney described himself several times by the redundant term “technology-challenged technophobe” to explain why he was making such limited use of the courtroom’s technology. The attorney probably thought this comment was necessary in his own defense. It was obvious during the trial that the prosecutor was making extensive use of the courtroom’s technology to project, for the benefit of the jury, enlarged images of videos, documents, and other evidence. In some of those instances, the prosecutor directed the witness to mark the image where necessary to emphasize certain aspects of the testimony. However, something happened to the defense attorney’s way of thinking over the course of the trial. During a several-day recess before closing arguments, defense counsel prepared an outline of his closing argument using PowerPoint and projected a summary of the argument as he was making it. The PowerPoint summary projected at each stage of the argument was normally one sentence or less, including in some instances a topic heading or just a single word. It was obvious to me, and I am sure everyone else in the courtroom, that this was a well-prepared closing argument that touched all the important points. The attorney had obviously put significant thought into the order of his comments and the major points that he wanted to make. This self-proclaimed “technology-challenged” attorney gave the smoothest and most compelling closing argument that I had ever seen him make. This experiment became a transformational event. Since that time, PowerPoint-aided opening statements and closing arguments have become a staple for him, as has an increasing use of technology during trials. With this experience, my objective now is to increase the use of technology in trials, one lawyer at a time.
If you elect to advance down a DIY path, start with mainstream software such as PowerPoint and watch a webinar and/or a YouTube video. If the adage is that a picture is worth a thousand words, how many volumes do today’s courtroom graphics speak?
3. Be Competent
It is your duty. Without exception. A lawyer “shall not intentionally, recklessly, or repeatedly fail to perform legal services with competence.” See Cal. Rule Prof’l Conduct (RPC) r. 3-110. The term competence applies to the diligence, learning, and skill reasonably necessary to perform legal services, as well as the mental, emotional, and physical ability needed to do that work. See RPC 3-110(B). To be sure, we are not suggesting that a lawyer who fails to use technology is not competent. However, a lawyer who attempts to use technology without the requisite skills risks at least looking foolish, if not incompetent.
Formal Opinion No. 2015-193 from the State Bar of California requires attorneys who represent clients in litigation either to be competent in e-discovery or associate with others who are competent. The opinion expressly cites the ABA’s Comment 8 and states: “Maintaining learning and skill consistent with an attorney’s duty of competence includes ‘keeping abreast of changes in the law and its practice, including the benefits and risks associated with technology.’”
The general view is that the duty of competence has included technology since technology became part of practicing law, but the ABA’s tech-specific language served as a wake-up call to the Luddites of the legal world: If you are a litigator who does not care to learn about e-discovery, or a law firm that is not focused on cybersecurity, you are in violation of your professional responsibilities—and doing a disservice to your clients—just as you would be if you represented a client in litigation without learning the facts of the case or the underlying law.13
Ethical obligations to assess the benefits and risks associated with various kinds of technology cannot be discharged without a working knowledge of technology. Make an effort to understand the basics of the technology you use, what technology is available, and the risks and benefits associated with its use.
While there is no expectation that courtroom presentations will rise to the level of a Scorsese v. Spielberg showdown, using technology in the courtroom is not and cannot be an afterthought. It requires a diligent weighing of the requisite benefits and risks. It, like many other decisions, is a strategic one deserving and calling for thoughtful diligence and consideration.
4. Be a Teacher
Visual storytelling of one kind or another has been around since the painted rocks of the Chauvet caves in France, approximately 26,000 BP. This is, in large part, because people think in stories. People learn from storytelling. Case themes help organize information and will help the fact finder learn and, more importantly, remember your client’s story.
Themes form an outline of your case and will help you teach your case. Technology is one mode by which you can reinforce your themes and provide a visual but powerful way to teach your client’s story. By using technology you can teach simple, direct, and strategic lessons. Here is one simple example:
In a spousal support case, rather than telling the court that the parties enjoyed a certain marital standard of living, show the court the parties’ marital standard of living. Consider showing a picture of the former family residence extracted from an appraisal or a picture authenticated by your client to help demonstrate the marital standard of living. Next, show a picture of your client’s current residence to highlight any difference in your client’s current standard of living. Providing a picture to give the fact finder context is, as they say, worth a thousand words. It is a valuable lesson you can easily teach with documents you may already have.
While high end use of technology has not penetrated the practice of family law to any appreciable extent, it is becoming routine in cases involving tracing of assets and reimbursement claims.14 The iPad has reduced the technological gap such that any attorney with a modicum of desire to use and understand technology can master the technical aspects and electronically present evidence in the courtroom.15 It merely takes a willingness to learn and an iPad. There are many apps available from the Apple store that are specific to litigation and which assist in the effectiveness of courtroom presentations. For example, in a contested child support case, as the court makes various findings as to each party’s income, parenting timeshare, deductible interest expense, and the like, rather than requiring a recess to travel to the attorney conference room to run a DissoMaster™, consider having the DissoMaster™ app open on your iPad or on your laptop and entering those figures as the court makes its findings. With a small, mobile air printer (typically under five pounds and at a cost of a couple hundred dollars), you can print the DissoMaster™ report instantaneously and wirelessly. Just don’t forget to bring paper.
A good teacher never stops being a good student. Continue to grow, learn, and apply what you have learned. Be innovative, stay educated, and collaborate with your colleagues.
5. Be Innovative
Becoming a leader in the area of technology in the law means learning innovative ways of presenting evidence and persuading the trier of fact. For instance, if you are going to use PowerPoint (or an equivalent tool) in the courtroom, learn how to present something beyond just typical bullet points. You might find it helpful to consult some of the publications on how to maximize the use of PowerPoint. Apply techniques from other areas. Think sports and weather broadcasts, where a device is used that allows a freehand sketch to be drawn over moving or still video images (Telestrator). This is now available as an app from the Apple store and has been integrated into some trial presentation software such as TrialPad™.
Seventy-two percent of lawyers report having had no training in courtroom technology.16 Why no training? The top reason given is that training is not available.17 Be willing to look for knowledge in unorthodox places. Ask questions. Be willing to learn. Join the technology section of the Bar. Take a webinar. Don’t be afraid to use Google or view YouTube videos. Engage in a mentorship with a mentor (or a mentee) that can share his or her technological knowledge. When it comes to technology, there is no more burying your head in the sand.18
Because trials can be unpredictable, being able to adapt on the fly to unpredicted challenges is a skill critical to the survival of trial attorneys. Being innovative by having the vision to apply concepts not typically considered during courtroom presentations can elevate a good presentation to greatness.
6. Be Helpful
Just as you would not swat a fly with a hammer, you would not use technology in the courtroom during every proceeding. Use technology when doing so has a purpose and will be helpful to the court.
The use of courtroom technology allows the judiciary to handle a continuously growing caseload while minimizing spending and maintaining services to the public.19 For example, Orange County Superior Court has established guidelines for all complex civil departments. Those guidelines are required to be served concurrently with the Summons and Complaint and provide, inter alia, that the court has the discretion to require the presentation of evidence electronically.20 Moreover, the guidelines strongly encourage counsel to take advantage of the benefits of courtrooms that have been equipped with Evidence Presentation Systems to enhance the orderly and effective presentation of evidence, reduce concerns about the custody and security of exhibits, and reduce the work and expense associated with the tagging, storing, and transporting of exhibits.21
7. Be Cooperative, Courteous, and Collaborative
The court’s goal of fair, timely, and efficient resolution of cases can only be achieved with the assistance and cooperation of counsel and self-represented parties. Knowledgeable, well-prepared lawyers who cooperate with each other and the court can streamline the litigation process, thereby conserving client and judicial resources.
Discuss using technology with the court and opposing counsel and offer to share in the cost of any rented equipment. If you are DIY and using your own equipment, use a switch and make a port available to the other side to avoid overwhelming the courtroom with not one but two sets of equipment.
Coordinate exhibits to avoid, where possible, incurring the costs of printed exhibits. Share electronic exhibits on a secure fileshare to avoid duplicate scanning.
8. Be a Lawyer
Ten years ago when the iPhone was introduced, court proceedings were about the interplay between human beings. In another decade, court proceedings will still focus on the interplay between human beings. While videos and special effects are fun to watch, you still have to prove your cases.
Ultimately, the trial lawyer’s job is to persuade. Technology can help, but it can never replace the critical process of uncovering the key points of a case and then carefully structuring—and communicating—those points in a way that convinces your trier of fact. Human beings are analog. They see and they hear. The emphasis during a court proceeding must be on what they see and what they hear. Technology is a great way to enhance what they see and what they hear, but it is not, and cannot act as, a replacement for evidence.
Technology has its place in the courtroom. It should never take precedence over the merits of the case. It should never determine whether you win or lose a case. It is a tool to enhance, highlight, and support your argument. When used efficiently and smartly, it is very effective. But it requires advance preparation including contingency planning.
Expensive technology cannot cover a lack of preparation by counsel. To the contrary, it tends to highlight the lack of preparation. Likewise, avoiding trial graphics and demonstratives altogether (because you think you cannot afford the necessary technology) ignores the fact that some of the most effective trial techniques require nothing more than an old-fashioned blackboard.22
Visual presentations are becoming ever more essential to trial lawyers’ persuasive strategies. The use of visual communication for strategic advantage at trial will increase in frequency and quality, allowing trial advocates to do even better at what they already do well.23
9. Be Cost Effective
The myth is that technology is too expensive. Actually, the budget for your case in making physical copies of numerous paper exhibits and notebooks with the staff and professional time involved could easily finance your first step into technology. Consider the following:
In an evidentiary hearing or a trial where each party submits two (2) binders, with each binder containing 250 pages, the cost to produce the required five (5) sets assuming the cost for copying of $0.12 a page, three-hole punching and tabbing of $0.05 a page, and $17 for the cost of each three (3) ring binder. The total cost for producing physical copies of trial binders would be $1,190.
Providing those same exhibits electronically, utilizing a $0.10 per page scanning cost would amount to $100 or approximately 0.08% the cost of producing paper copies. Using electronic exhibits would obviate the need to produce paper sets, save maintaining the original set from which the documents were scanned for the record in the event of an appeal. There would be no duplicate sets to copy and exhibits could be exchanged electronically without additional expense (save the expense of having access to a secure fileshare). Even without an agreement to accept electronic service, electronic copies can be transferred onto a flashdrive at a modest cost of $12-$15 for a medium capacity flashdrive.
In sum, the technology will have a startup cost, but once well managed, it will actually save clients’ money, and your staff time. This is particularly true with the use of tablet devices for presentation of exhibits.
10. Be an Advocate for Technology
You have to be good at it, take the time, and be motivated. Once you show the court your technological skills and the efficiency it brings to the process, you strengthen your presence in the court and advance the advocacy of your client’s cause. If you are impressive, people will be impressed!
1 The comments presented here are suggestions for the use of technology and not a forecast for whether or how any bench officer should permit the implementation of technology.
2 Family Code section 4336(b) provides, relative to spousal support, that a marriage of ten years or more is a marriage of long duration.
3 Joshua Poje, Practice Management, ABA Techreport (2016), http://www.americanbar.org/publications/techreport/2016/practice_management.html (Dec. 16, 2016).
4 Aaron Street, Practice Mobile Technology, ABA Techreport (2016), http://www.americanbar.org/publications/techreport/2016/mobile.html (Dec. 16, 2016).
6 Stephen Embry, Litigation and T.A.R., ABA Techreport (2016), http://www.americanbar.org/publications/techreport/2016/litigation_tar.html (Dec. 16, 2016).
7 The Technology Planning Taskforce, Strategic Plan for Technology 2014-2018, Cal. Jud. Branch 23 (2014), http://www.courts.ca.gov/documents/jctc-Court-Technology-Strategic-Plan.pdf (Dec. 16, 2016).
8 Megan Zavieh, Luddite Lawyers Are Ethical Violations Waiting to Happen, Lawyerist.com (2015), https://lawyerist.com/71071/luddite-lawyers-ethical-violations-waiting-happen/ (Dec. 16, 2016).
9 Hon. Herbert B. Dixon, Jr., Future Trends in State Courts, The Evolution of a High Technology Courtroom 28 (2011), http://www.ncsc.org/~/media/Microsites/Files/Future%20Trends/Author%20PDFs/Dixon.ashx (Dec. 16, 2016).
11 Derek Miller, Best Practice Tips for Electronic Trial Presentation, http://www2.law.columbia.edu/johnson/syllabus/TrialPresentationTips.pdf (Dec. 16, 2016).
12 Hon. Herbert B. Dixon, Jr., supra note 9.
13 Melissa Maleske, Why Tech Skills Are Your Ethical Duty, Law360 (2014), http://www.law360.com/articles/848822/why-tech-skills-are-your-ethical-duty (Dec. 16, 2016).
14 Kenneth G. Ragio, Effective Use of Technology in Mediation and in the Courtroom, St. B. of Tex., San Antonio, ch. 66 (Aug. 2011), http://www.raggiolaw.com/documents/Ipad.pdf (Dec. 16, 2016).
15 Kelly Andersen, Effective Use of iPads, http://live.mbabar.org/assets/chats/relatedfiles/14/2656/Using%20the%20iPad%20MBA%20Sept%202013.pdf (Dec. 16, 2016).
16 Embry, supra note 6.
18 Robert Ambrogi, 25 States Have Adopted Ethical Duty of Technology Competence, LawSites (2015), http://www.lawsitesblog.com/2015/03/11-states-have-adopted-ethical-duty-of-technology-competence.html (Dec. 16, 2016).
19 Jessica Moyeda, Courtroom Technology, Cornell L. Sch. Graduate Student Papers, paper 30, http://scholarship.law.cornell.edu/lps_papers/30 (citing Long Range Plan for Information Technology in the Federal Judiciary, Jud. Conf. of the United States, Admin. Off. for U.S. Cts. (2013) (explaining that the Administrative Office of the United States Courts is responsible for preparing and annually revising the Long Range Plan for Information Technology in the Federal Judiciary; the Judicial Conference Committee on Information Technology provides guidance in the development of annual updates and recommends the plan for approval by the Judicial Conference).
20 Superior Court of California, County of Orange, Guidelines–All Complex Civil Departments, http://www.occourts.org/directory/civil/complex-civil/department-guidelines.pdf (Dec. 16, 2016).
21 Id. at 5.
22 Chris Ritter, The Perfect Fit: Tailoring Courtroom Technology to Win Cases (2009), http://www.thefocalpoint.com/insights/articles/8/106 (Dec. 16, 2016).
23 Brian Carney & Neal Feigenson, Visual Persuasion in the Michael Skakel Trial: Enhancing Advocacy through Interactive Media Presentations, Crim. Just. Mag., vol. 19, no. 1 (Spring 2004).