Why is it that some judges are more inclined to allow lawyers to use technology in the courtroom, and others aren’t?  When do you use technology during the Pretrial and trial process, and what kind of technology works best?  What impact does technology have on the judge and the jury?  This article hopefully will provide some insight into these burning questions.

Judge's Experience

Whether a judge will consider the use of technology in the courtroom during any portion of litigation depends greatly upon whether the judge has experience with the technology. Most, if not all judges are used to seeing overhead projections, video presentations and even PowerPoint presentations, but few of them understand how the materials are prepared, and even fewer understand how they work.  The more you know about a given judge’s previous experience with any technology, the more likely it will be that you can persuade that judge to allow extensions of that technology in your own presentations. For example, if you know that the judge has seen a PowerPoint presentation during a motions hearing in the past, you can assist the court in your presentation by providing your outline materials in advance.  That way, the judge is able to better follow the points and ask pointed questions that will help you understand what the core issues are. On the other hand, a judge who has never experienced such a presentation may be lost when reviewing just the “high points” you have chosen to include in your presentation.

While some judges may have a law clerk to assist them, more often judges are themselves doing their own research because of the lack of resources available to them.  This is especially true in the state court systems.  For those judges, a disc with links to case citations, exhibits, deposition transcripts and other materials is a Godsend.  However, many judges are unfamiliar with this technology, and may therefore reject it out of hand. For this situation, the answer is education.    

Pretrial Technology

Technology can streamline pretrial proceedings, or can bog them down.  Before you decide to make any pretrial presentation (either briefs, motions or arguments at hearing) through use of technology, make a considered decision as to whether the technology enhances your presentation, or simply mucks it up.  The real question is whether technology will make you better understood. Technology for technology’s sake is rarely the answer. Remember that your goal is always to be understood, not to try to impress with your skills. What types of technology work in a pretrial setting? PowerPoint presentations that integrate the law with the facts of your case; hyperlinked materials that give the judge easy and immediate access to the relevant portions of cases you cite, depositions, exhibits and other supplementary materials; summary exhibits, again hyperlinked for the court’s convenience to the actual exhibits you are summarizing (judges love to double-check such things); if you have a discovery issue involving a deposition and have video of the deposition, nothing can be more instructive than attaching the relevant video for the court’s review in the context of your motion; side-by­side comparisons of important documents; and sometimes of greatest importance, a proposed Order for the court on disc, so that the court is able to make any changes necessary to achieve a final product.

In short, you should consider what technology will make the court’s job easier.  In this context, if you are planning to use technology during your oral presentation, you should make certain that you are prepared for the courtroom.  Not all courtrooms have electrical plugs with easy access to where you may be setting up your projector, or computer.  Make certain you know exactly where to place screens so that the court is able to see, but opposing counsel is also able to see.  If at all possible, work with opposing counsel to agree on placement of technology – at times there is nothing more irritating that lawyers not only fighting over the merits of their case, but fighting as to who gets what electrical outlet in the courtroom.  The court should not have to umpire disputes such as this – it should be worked out well before the presentation occurs.  The more agreement you can achieve with opposing counsel about use of technology, the more likely it is the court will allow you to use technology in any way you see fit.  

So why are some courts so reluctant to allow technology in the pretrial process?  Sometimes it is because counsel has done nothing to advise their opponent of the technology being used. If you ambush opposing counsel with the use of technology (just as in the citation of authorities at the hearing) this adds another level of hostility and adversarial process to an already overburdened judge. Just because you provide information to the other side in advance of the hearing does not alter the soundness of your arguments – what this does is remove an obstacle for to you have free rein in the courtroom to best present your argument.

The pretrial process does not always lend itself to use of technology that allows you to highlight, emphasize or “pull out” certain information from your exhibits.  We are speaking here of technology such as Case Map, Sanction or other software.  However, if you have certain information in exhibits, transcripts or any other material that you believe should be highlighted for emphasis, then these types of programs can greatly enhance your ability to clarify your arguments.  They give the added punch of spontaneity when the court asks specific questions. If you have indexed your materials properly, when the court asks, “Is there any proof that the defendant knew of the expenses the plaintiff was incurring during the negotiations of this contract?” you will be able to pull this up with little difficulty, put it on the screen, and highlight whatever language you think proves that point. If you have properly loaded the information from your case into your computer, searching for the needed exhibit and highlighting it will be easy.  That makes it easy on the court as well.

Technology During Trial

After watching hundreds of jury trials, and watching thousands of lawyers present arguments during jury, and court, trials, the use of technology depends ultimately upon whether it helps the audience understand your point, or simply mucks things up.  During the trial process more than the pretrial process, sharing your technology (or at least outlines of your presentation) is an absolute necessity.  No judge wants to require a jury to wait for them to hear an argument from opposing counsel that you have not shared information with them.  As we all know, trials by ambush have gone the way of the passenger pigeon and the dodo – and good riddance.  Trials these days are highly scripted dances, with great pains taken to ensure that both sides know what the other side has in evidence, case theory and witnesses. Sharing what you will be using in technology with the other side helps grease the skids of a trial, making the trial judge very happy.  There is no downside to this simple requirement, and ultimately sharing this information will pay off in a very big way for you.

Some lawyers ask whether jurors believe they are “too slick” if they use technology in the courtroom.  In our experience, this is an excuse used by many lawyers who are either completely unfamiliar with technology themselves, afraid of it, or some combination of the two.  In our experience, jurors appreciate an efficient presentation, whether it be by use of projectors (with enough screens so that everyone can see), the use of highlighted or summary exhibits, video presentations or even PowerPoint arguments.  The sole exception to this rule in our experience is the use of PowerPoint with a witness, especially an expert witness. Jurors on the whole believe that these presentations mean that the witness have been given a “script” – they do not understand the immense preparation that goes into presentation of an expert witness – and they therefore have a tendency to disbelieve the expert for this reason.  Your arguments, and even your Opening Statement, is a different matter.  Jurors generally respond favorably to these presentations, because they are easy to follow, they given them visual cues to what the lawyer is saying, and they help the jury remember the important points.  They also can provide the jury with information that they may decide to write down in their own notes, thus giving them a true “roadmap” of your case.  What could be clearer than that?

Some of the same considerations apply to the trial process as that in the pretrial process. If you do not test-drive your technology before you present it to the jury, you will likely have a breakdown.  This has two results: first, the jurors believe you are inept, and therefore they are less likely to believe your case; second, it wastes their time.  Many jurors are not present willingly – they believe they are doing an important civic duty.  However, if their time is wasted, you will pay the ultimate price.  Make sure the jurors can see, can hear and can understand what you are presenting. Sit in the jury box (no judge would reject a reasonable request for you to come into the courtroom when it is empty (an evening, early morning or weekend) so that you can do a test drive) and make certain that you can see, hear and understand what is being presented.  If you can’t (remember, you have the luxury of already knowing your case) how do you expect the jury to do so?  Make certain that you include the judge as an audience, even during a jury trial. If the court has to stand up and move, or must strain to hear what you are presenting, it may likely result in an interruption in your presentation.  You need to control the timing of your case – any outside interruptions will cause a problem in the flow of your case, and will result in making it less persuasive.

Some jurors learn by listening; some by watching; some by feeling (holding a document and reading it, for example); and still others by combinations of all of these senses. Use of technology is your best bet to include all types of learners in your presentation. To do this, you might consider putting up many exhibits on a projection screen, but providing the jury with a hard copy of a summary exhibit – allowing them to take their own notes about the exhibits that make up the summary.  You might also consider giving the jurors several copies of a diagram that you use with various witnesses, allowing the jurors themselves to draw their own markings on their blanks diagrams while the witnesses are doing so from the witness stand.  These are just a couple examples of how you can use the fact that jurors take notes during a trial to direct them to what you believe is important in your case.  If you make it easy for them, they will understand more readily.  Don’t hesitate to suggest to the jury (perhaps through the court) that they have many copies of diagrams for their own use, and suggest that they may want to turn to the blank diagrams for each witness.  Directing what jurors write down in their notes gives you an edge. Use it.

One of the most effective uses of technology during a trial is impeachment.  If you have taken the time and expense to video depositions, spend a little bit more to track the video to the transcript, using a light pen.  Many jurors shrug off the usual impeachment – they rarely see the impeachment as important.  However, when a juror actually sees the witness make a statement during their deposition, and are able to directly contrast this with what they have just heard from the witness stand, this provides them with a direct understanding of how important the testimonial inconsistency can be.  This is especially true if you have a witness during deposition who is evasive or difficult, but who makes a perfect impression during trial – generally because they have been thoroughly schooled. Use this difference in personalities to your direct advantage (but don’t over-use it).

If you are playing an audio- or video-taped statement or deposition, you might consider using a formal transcript to enhance the ability to understand the testimony.  This can backfire, for example, during a particularly dry expert witness testimony.  Jurors may have a tendency to read ahead, or to “lose themselves” in the transcript.  However, if you have a taped presentation that is difficult to understand, but you still want the jury to see the speaker’s demeanor, a transcript can be of great help.  Don’t forget to suggest through the court that the jury may mark up their copy of the transcript (if they are going to be able to keep the transcript for their own use).  Make certain that you ask well ahead of time to use transcripts, and give the judge a good reason why you need both the tape and the transcript. Do not leave this to the last minute.

One of the final technology considerations is the use of Jury Instructions in your presentation. You must, obviously, determine whether instructions will be read before your Closing Argument or after – this will make a huge difference in your ability to actually quote instructions, or simply to paraphrase them.  Elemental instructions are particularly effective in these types of presentations – remember, it is the jury’s job to follow that “checklist” and determine whether the party with the burden of proof has met that burden. Showing them how the evidence hangs on the skeleton of the elemental instruction makes their job easier.  Do not underestimate the power of persuasion that this type of use of technology can do for you.

Conclusion

Many judges are fearful of the use of technology because they are unfamiliar with it. The more you can assist the court by advising ahead of time how you intend to use technology, and more importantly how it can make the court’s job easier, the more likely it will be that the court will allow its use during all phases of litigation.  Think in advance before you use technology, and this will make it more likely that you are able to use it, and more likely that the judge will benefit from it.