A Courtroom Tech Tale: Advantages of Shooting for the Middle

Posted on January 5, 2010 | by Eric

This is a little story written as the printed material accompanying a presentation on effective use of technology at trial for the DRI Annual Conference in October, 2009.  It is obviously tongue-in-cheek, and written primarily with entertainment value in mind, but hopefully you find that it articulates some solid points.  Thanks for reading.

Smell that?

I love the scent of legal pads and dry-cleaned suits in the morning.  Smells like … favorable verdict. (Or, at a minimum, an agreed-upon resolution satisfying both parties and disposing of the matter).

It’s a lovely autumn morning and nothing symbolizes the start of litigation season more than teams of not-so-bitter rivals reviewing docs, prepping witnesses, and attending final pretrial conferences.  It’s like a “Rocky” training montage for the legal set.

There’s an element to the trial that each team will deal with in its own way:  The act of putting simple visuals on-screen so the jury, judge, and witnesses can see them.  This is otherwise known as “Trial Presentation Technology” or, in the shorthand of the courthouse, simply “Technology.”  (Yes, this is an intensely general word used to describe a very specific use of technical equipment and software systems, in a way that’s more or less guaranteed to confuse everyone unfamiliar with the systems and support available.  But we’ll go with it.)

Meet the Players

Dang Elmo made my document be upside down...

In today’s scenario, our defense attorney is your traditional type of fella.  He shuns technology in the courtroom altogether, opting instead for the old-fashioned approach.  (”Atticus Finch didn’t need any dang ol’ computers and what-not.  And by golly, neither do I!”)  He is The Technophobe.

Like it or not, sooner or later it happens: The Technophobe finds himself in a position where he has no choice.  It’s electronic presentation or public humiliation (a distinction without a difference, as far as he’s concerned).  In this case, a terrible misalignment of the stars has backed him into the metaphorical corner: The document and deposition populations are too large to handle manually; the other side is planning a fireworks show; and the judge has asked counsel what tools they’ll be using to move things along.

Across the aisle, at the other counsel table, we have The Gadgethead.  The Gadgethead is a little too excited about the possibility of getting that smoking-gun evidence – as well as every one of her Great New Ideas – up onto the silver screen at the courthouse.

When planning for trial, The Gadgethead says:  “I need 15 monitors, 2 extra plasma displays for the gallery, and one GIANT screen … sixteen, eighteen feet … whatever it takes.”

This is neat...more is better.

“I want to be able to draw squiggles on all the screens, like John Madden.  The laser pointer must be Jedi quality, and I’m considering calling the company witnesses via hologram.  Everything on the screen will support the 27 case themes I’ll cover in detail during opening statement.  Each sentence shall be bullet pointed; each sidebar needs a sub-bullet.  Each time I use the word ‘Idea,’ I want a clip-art figure (with a clip-art light bulb over its head) to appear on the screen. Make it so.”

While we can’t necessarily predict the outcome of this trial, we can at least be fairly sure that The Gadgethead’s technical presentation will be more interesting than The Technophobe’s.  (Heck, even if there’s a power surge and all that gear goes up in a shower of sparks, it’s bound to be spectacular.)

Places, Please

OK, we’re in the courtroom.  Over in this corner (the one with all the extension cords … where all the associates and paralegals sit, heads bowed, clicking away furiously on Blackberry keyboards), we have The Gadgethead.  She is completely fired up about today’s cross exam.  She stayed up with the team all night long, making sure every split-screen comparison was just perfect and every single word on every document is highlighted because, you know, “they’re all important.”

The Gadgethead has 1,500 video clips online and available in an instant, just in case she has the opportunity to impeach the witness for changing an answer to a Key Question such as, “What is your current state of residence?” or “On what day did you first join the company?”

In the blue corner, The Technophobe is also ready to come out swinging.  He’s prepared fourteen tabbed binders (six copies of each).  The binders, and a complete set of hardcopy files, are in document boxes stacked five-high across the wall behind counsel’s table (These are loaded into the courtroom each morning – and back out again each evening – by three people from Office Services. They have to be in line at the courthouse security checkpoint at 6:00am in order to be set up before court.  Every day. No, seriously … EVERY day).  In his shirt pocket are two pens (one blue, one black).  In front of him is his witness outline (a legal pad with eighty-four Post-It notes sticking out from various pages).

Batter Up

Our Technophobe is up first today.  He’s presenting his expert witness.  Having just finished walking the witness through the preliminaries, he’s now ready to call the first document.

With practiced confidence, he says to the witness, “Let’s take a look at exhibit 103.”  He glances quickly at his Technology consultant (who has snapped to attention, because “Let’s take a look at …” are Magic Wake-Up Words for anyone in that role).  The consultant has already typed “1-0-3” on his laptop keyboard, and his index finger hovers over the “Enter” key, awaiting only the “Go” command from Mission Control.

But the command does not come.  Instead, The Technophobe points to the Elmo and asks, “Is this thing on?”  The guy behind the laptop sighs, pushes a button, and visibly deflates.

What just happened?  Our Technophobe hesitated, and ultimately backed out on the simple, yet effective, presentation assembled by his team because he wasn’t exactly sure how it worked and couldn’t find the time to practice.  Sure, he heard the verbal explanation multiple times, but that takes a little too much trust … and the courtroom is no place for trust, for Heaven’s sake.  (“This is a trial, for cryin’ out loud … not a dadgum videogame.”)

The Technophobe slides the page onto the Elmo and – great – it’s upside-down.  His instincts were right, these high-tech gewgaws can’t be trusted to work right.  But he has to keep moving, so he tells the jury, “there seems to be a technical glitch here, if you can just turn your heads, you can sort of read what we’re looking at.”

In the meantime, his paralegal creeps slowly toward the Elmo.  Crouching like Marlin Perkins (Ask your parents, whippersnapper) stalking a rare snow leopard, she extends a tentative hand toward the paper.  Quick as a limpet, she strikes … spinning the paper 180 degrees.  Then, just like that  – poof – she’s gone.

“Oh … I guess that’s fixed now.  Y’all can sit up straight again.”  The Technophobe continues to walk the witness through the document, never again touching the Elmo or even glancing up at the screen.  He thus fails to notice that – since he never zoomed in on the page – you can see the document on the screen, but you can’t really read it.

After a few minutes of Q&A, The Technophobe removes the page from the Elmo and returns to the podium.  The Technology consultant – coming to terms with the reality that he’s the Maytag Repairman of this trial team – punches a button to blank the screen.  Whew.

Well that was embarrassing.  But it’s nothing a little self-effacing humor can’t fix, right?  After all, The Technophobe has always known full well who and what he is, and never expected this tech stuff to work in the first place.  But it’s fine … it doesn’t really matter, right?

Not exactly.  There’s a problem, and it’s one that can’t be fixed:  The Technophobe missed his chance to make a good first impression.  The jury’s first exposure to a key document – and the impact of that document upon them – were diluted by a mistake.  The document was also hard to read, and although it provided a basic visual image, it didn’t visually emphasize the important parts that support his story.  Sure, the document is in evidence, and his expert talked about it on the stand. But it will not, in all likelihood, stick with the jury, which is really the goal.

And then there’s the frustration. The Technophobe is frustrated by (and now has even less trust in) all this stuff.  The guy behind the computers is frustrated because his client took the presentation out of his hands, and screwed it up.  True, it was out of his control, but it’s still a screw-up (At this point, it’s worth mentioning that the vast majority of folks whose careers are based on putting what you’re talking about on the screen quickly and clearly, without muss or fuss, care about small mistakes much more than you think they do).

Next!

Content aside, Counselor Gadgethead is going to put on a much better show, right?  Huh?  Right?  Maybe. Let’s go back into the courtroom and watch her cross-exam.

Right off the bat, The Gadgethead calls for four documents to be onscreen at once (because she once saw a software demo that said it was possible) so she can compare the language on each document.  It’s a pretty cool technical stunt, but now the text is tiny and – you guessed it – unreadable.  The “emphasized” language adds up to around 400 words.  Per page.

The Gadgethead is running through video clips left and right; yet most of them are far too long for a normal human attention span (let alone a dazed jury).  As this “whole-hog, everything-on-screen” approach goes on, it gets worse.  The witness isn’t pushing back nearly as much as hoped, and a lot of the fireworks are duds.

The jury instinctively senses the effort to put on a good show (as would anyone watching).  They may not realize it, but the jurors crave something within the fireworks that they can latch onto – something from which to hang the rest of this information so they can sort it all out – because that’s how the human brain works.

The rest of the exam just ratchets up the sensory overload.  Telling someone a hundred things is exactly like telling them nothing …  except it takes longer.

Color Commentary

As different as these adversaries are, they have a great deal in common (beyond the bar exam).  They both misunderstand the potential of technology – if used efficiently – to influence not only the jury, but the entire trial.

The Technophobe is a very smart lawyer; he scrutinizes every detail of the case and understands the importance of details in forming the big picture.  (One cannot, after all, have a forest without trees … and he makes it his job to know every tree in the woods.)  But when he scrutinizes the use of technology in court, he perceives only the complexity of the devices and the systems: he sees too many strange/different trees, so he turns away and follows a different path.

The Technophobe’s judgment is clouded by his mistaken belief that he must personally master technology to benefit from it.  This masks the true simplicity of (what should be) his goal:  show selections of evidence emphasized on screen.  He forgets that there are, walking among us in the world today, others who understand and have mastered technology, and upon whose expertise he can rely just as he does with expert witnesses.  With an expert on his team, he can benefit from technology without becoming a devotee.

The Gadgethead, on the other hand, has clearly erred in the opposite direction.  Embracing technology, she turns to it simply “because it’s available,” without thought to whether its use at the moment is appropriate. Sacrificing brevity for the sake of bling, she loses the clarity the jury needs to understand her case..   She prioritizes style over substance, and in so doing is no better than Michael Bay or McG (respectively, the directors of “Transformers 2” and that awful new Terminator movie.  Ask your kids, you old fogey).

So, Now What?

Thankfully, this story has a savior who reveals himself near the end of Act II.  “The Winner.”

The Winner realizes something that The Gadgethead and Technophobe know deep down, but lost sight of behind an unnecessary concern for the projector/screen combination. The Cardinal Rule for any successful presentation:  STORY FIRST.

In Hollywood, special effects exist to help the director tell the story (in theory, anyway … when done well and used efficiently) … not to tell the story for the director.  Legal technology, likewise, is there to help the attorneys tell a story.  Like a good special effect, technology should help you enhance the point, but never draw attention to itself.  And the storyteller (in our case the trial lawyer) need not waste time obsessing about technology details.  A solid team will take care of that.

The Winner stays focused by setting priorities that don’t let unnecessary details derail him or her from telling his story.  Priority number one is story. After that come communication and trust with the team, which will free up more time for the lawyer to focus on telling the story.  Attorneys who interact successfully with technology in court likely don’t even understand how most of it works, nor should they. They trust the teams they build to back them up.

The Winner also does something else the others neglected:  Wrestles priorities out of the complexity, using technology to emphasize the important parts.  Certainly not everything; but not nothing either.

The Winner knows how to make simple use of a projector and screen so even as the jury sees many things, they clearly understand, “This is the important part.”

The Winner understands that courtroom technology is nothing more than a simple and fast way of getting his story in front of the court.  “Simple” on the surface, anyhow … which is as deep as The Winner needs to look to know how to work with it.

The Winner understands the power of highlighting only the highlights, those sections that the jurors should remember during deliberations; and then summarizing those sections later in concise demonstratives.

The Technophobe looks at an Elmo and asks, “Why do I have to deal with this thing?”  The Gadgethead wonders “What fancy tricks does this thing do that I can use it for?”  But The Winner says, “Which bits of evidence (my story) would work best with this tool?”

Yo Your Honor...I did it!

Ultimately, there are at least two things consistent in every Winner’s approach to technology in the courtroom:  (a) Understanding that simplicity and concreteness are a powerful combination; and (b) trust in the team that makes it all happen for them.

So now you know.  The secret’s out.  Shoot for the middle ground when it comes to technology.  Bells and whistles can distract, but it doesn’t pay to be gun-shy, either. Take a critical look at your goals and priorities, and strip away the barriers between you and the jury. Whether it’s with trust, communication, laser focus on your story, or an awareness of the power of simplicity, the middle ground is where you win with courtroom technology.


 
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