Show and Tell

Technology captures jurors but frustrates some judges and lawyers.

by / January 4, 2005 0
Judge Mary Lisi of the U.S. District Court in Rhode Island keeps her eyes glued to two flat-screen panels on the bench. One displays evidence. The other displays testimony translated from the court reporter's shorthand into English in real time. With an optical mouse, the judge flags key testimony and makes notes on the screen.

Both counsel tables are equipped with a flat-screen monitor, and the jury box is equipped -- one for every two jurors -- with monitors as well. The courtroom has at its disposal a digital camera that projects the image of documents or objects onto each monitor in the courtroom. Lisi affectionately refers to it as ELMO, the manufacturer's name.

A self-described technological dinosaur, Lisi presides in a fossil of a courthouse, built during the Theodore Roosevelt administration. The courthouse recently underwent rehabilitation and restoration that included state-of-the-art technology, which was carefully integrated to avoid sacrificing the courthouse's historic feel.

It's a nice blend of the old and the new, Lisi said. Gorgeous woodwork and hand-carved marble retrofitted with 21st-century court technology. "I'm thrilled about what we have in here," she said. When she gets home, she can log on to her computer, connect to the court's system and review cases in her pajamas.

It's one of about a thousand "smart" courtrooms around the country, counting federal, state and local jurisdictions. David Goldenberg, vice president of DOAR, a systems integration company specializing in designing and installing court technology, defines a smart courtroom as one with at least video presentation or video conferencing for remote testimony.

The disparity between smart courtrooms and those devoid of any such technology is vast, and the gap between tech-savvy judges and lawyers may be as wide. The discrepancy breeds frustration at times. There's plenty of growing to do.

If government is the tortoise in the technological race, then the judicial branch is a snail, save a few like Judge Lisi's courtroom, according to Paul Roybal, CIO of the Metropolitan Courthouse in New Mexico. "My favorite line is, 'There will be a paperless bathroom before there is a paperless court.'"

The technology is available for judges and lawyers who choose to use it. DOAR -- and four or five other U. S. companies -- farms out equipment to judges and lawyers on a per-trial basis, and trains judges and lawyers to use it. Most judges and lawyers who ask for the technology are younger and grew up playing with it.

Some sage veterans just wish it would go away, Goldenberg said. "The older attorneys who are used to working with long, yellow legal pads and big poster boards; they're the ones having a difficult time coming around.

"Some judges expect to have a laptop on the bench and the ability to mute the audio and video, and give jury instructions to the jurors -- watching flat-screen monitors, using their laptop," Goldenberg said. "And there are some older judges who just don't get it. Typically they won't even [purchase] the technology."

Judges who spend $150,000 or $200,000 on the technology do so because some lawyers want it, and because it speeds up trials, Goldenberg said. The government -- whether it's a local municipality or the federal level -- has made modest investments in court technology to ensure access to smart courts for both large firms and single practitioners. Lawyers add to what the smart courts offer by renting equipment for trials.

"We may have a $300,000 case, the World Trade Center case is one we happen to be working on," Goldenberg said. "We'll charge the attorney $300,000, and he'll charge the client $400,000. The attorneys, at least the smart ones and the ones at the larger firms with the bigger cases, spend a lot of money now to take advantage of this technology."

One of the most significant benefits of a smart courtroom is the time it can save. The Administrative Office of U.S. Courts published an anecdotal study concluding that technology in the courtroom could cut the length of a trial by almost half.

"Our system went down a couple of weeks ago," Lisi recalled. "I tried a relatively short case, but when the lawyer had a photograph to show to each individual juror, it felt like the world was standing still. It felt like an eternity as each one of them looked at it because you can't do anything while they're passing that photograph around."

With flat-panel monitors in the jury box, at the judge's bench and at the lawyers' tables, everyone can see the evidence at the same time, rather than having to pass around a piece of evidence, which could take 10 or 15 minutes. "With an evidence presentation system, especially in document intensive trials, you put it up and everybody is looking at the document at the same time while the attorney is speaking," Goldenberg said. "If you have 100 documents -- you do the math."

Presenting evidence electronically -- PowerPoint slides and scanned material -- and showing it to jurors on their monitors makes for a more powerful presentation, and jurors appreciate the efficiency, said Judge F. Dana Winslow of the New York State Supreme Court.

"If you have records of 1,000 pages or 2,000 pages and you want to get to page 134, electronically it will take you about three to five seconds," Winslow said. "If you try to do the same thing with the massive documents through the witness and through the attorneys, it will take you a substantial amount of time. I've seen it take 10 minutes."

Having monitors at the counsel tables also saves time by cutting down on objections because lawyers have the precise language in front of them, Winslow said.


A Clear Picture
The evidence can also be presented with increased clarity, and jurors are engaged in a way that doesn't always occur during a traditional trial. "From my perspective, the jury is better able to understand the evidence," Winslow said. He said in traditional trials involving records, the jury never actually sees the record. It is merely explained by a lawyer. Instead of explaining, counsel can now show records with the monitors.

Take the case of a person who suffered a herniated disc and tried to prove it was the result of another party's negligence. What is a herniated disc? "It means the nucleus propulsis came through the [annulus fibrosus] and there was a touching of one of the nerves. So what?" Winslow said. "Does that really mean a whole lot to a jury?"

It does when you show it to the jury with computer animation, he said. "You see electronically how it works. All of a sudden, something that would be ignored as a serious case becomes one in which the jury says, 'This person is going to have problems for the rest of his life.' They can see it."

Technology enhances understanding and retention, and establishes a greater degree of credibility, Winslow said. "There is always some reticence on the part of jurors to accept everything the attorneys or witnesses are saying. If they don't have to be concerned that something they are hearing is something other than what is [real], it reduces the skepticism in the courtroom."

Evidence presented on the monitors can be circled, enhanced or highlighted by the attorney or the judge, showing jurors exactly what to focus on. "Say you're showing a bullet," said Lisi, "and you want the witness to point out the striations on the bullet. I used that in a trial several years ago where they actually did use bullets removed from people who had been shot to prove those bullets had been shot out of a [specific] gun."

The witness pointed out the striations of the bullet on one side of a split screen monitor. The other side of the screen showed the gun and the patterns it made on bullets. "It's very powerful when the jury can see that instead of having to rely on the witness just jabbering on about it and having this tiny projectile in his hand that they are going to have to wait and see afterwards."

Winslow has been a proponent of technology in the courtroom since his days as a trial lawyer, when he used it to turn an ordinary civil case into a million-dollar verdict for his client, who was strangled and almost killed in a mall parking lot that she claimed was not well lit and dangerous. The defendants said they did everything they could to make the mall parking lot reasonably safe.

Winslow took a photo of the mall and the lot, however, and had it electronically enhanced. He identified each light, travel lane and trees, and numbered the parking spaces. He calculated the number of acres in the parking area. "I had the ability, electronically, to show what the mall owners had ignored and discounted, and that was the number of parking spaces," he said. "There were 6,200-odd parking spaces. When you see that in relation to the lights, it's overwhelming."

To save time and provide an efficient case during trial takes enormous pretrial preparation, for which there is usually ample time because of trial backlog. All evidence that might be presented during the trial must be scanned and coded beforehand so attorneys can call it up promptly during trial.

"Generally what [lawyers] will do," Lisi said, "is bring in a technician who will work with them so when they're ready to show something, they will call it up on the screen." Lisi's court clerk helps the lawyers with the scanning and coding.

Having all that evidence available electronically produces an unrecognized benefit in that it enhances the readability of even poorly copied documents, Winslow said. "The reproduction is better than the original in many instances. It happens because the jury is seeing something that has been magnified many times and becomes clearer as a part of that process, and also because it's focused."


Growing Pains
A jury also can be misled by magnifications, however, and lawyers on both sides must be careful. An attorney can use a split screen to show both the magnification and the document as is, Winslow said. "They know what they're now seeing in magnified portion is not a distortion; it's not something that's being created by one side or the other to fool them."

Lawyers do get carried away with technology, making it incumbent on the judge and adverse counsel to call them on it. "The lawyers overuse it," Lisi said.

Fred Galves, law professor at the University of the Pacific's McGeorge School of Law in Sacramento, Calif., teaches his students to use technology "strategically and effectively" and not to overuse it. He said some lawyers get excited about using a "new toy" and "sometimes the medium becomes the message." One theme in his computer-assisted litigation course is that good facts and the correct law still win cases, not technology.

Lisi recalled a recent trial where lawyers provided a list of more than 800 exhibits. The day before the trial, they tried to add 100 more. "I said, 'Wait a minute. It's not that big a case.' They scanned anything that had anyone's name on it who had anything even remotely to do with the case because it's so easy to do."

Lisi also had a case where, during an attorney's opening, he began showing a PowerPoint presentation with evidence that hadn't been admitted. "Now what I've done is require the lawyers to agree on exhibits that are going to be admitted as full exhibits in advance of the trial. Those are fair game, but if you're going to show anything in a PowerPoint, you've got to present it to the other side in that form before you show it."

Winslow presided over a product (an automobile) liability case where there was an attempt to show, through animation, a crash and its cause, but opposing counsel successfully argued that the animation was flawed because the dimensions and weight of the car used in the animation were different from the car that crashed. The lawyers, with the help of MIT, corrected the animation, and it was then deemed reliable.

Galves said juries typically have difficulty understanding science of any kind, including computer science. Using technology to demonstrate what an eyewitness saw is one thing, he said. But trying to re-create a scene with animation, such as the accident in the liability case, where there are no witnesses, can be troublesome.

"Now you have huge problems because you don't have the reliability of being able to cross-examine a witness, so you have to rely on the underlying science," Galves said. "To say, 'This is what it must have looked like' is unfair." He said oftentimes, computer animation should be kept out of the trial because it is so speculative.

Galves said jury manipulation has been a "huge problem" for years, and lawyers can and will do it with and without technology. He said the technology helps lawyers pull one over on the jury if that's the intent. "By the same token, if the lawyers are trying to explain a legitimate type of science, the technology will do what it's designed to do, and that's explain it and help [jurors] understand it."

Winslow said there are problems with computer animation in terms of accuracy, but that's nothing a good lawyer can't overcome.

"If you have somebody in there who knows what they're doing, knows how to present it and presents the other side in a very effective way, yes it can be overcome. The technology may fall by the wayside, just as it should, because we're really looking at the increased ability to communicate with that jury. If everybody has that opportunity, the very best are still going to prevail."

Not only have young lawyers grown up with the technology, many have been trained to use it in law school. Goldenberg said his firm has installed 20 to 30 high-tech courtrooms in law schools around the country.

Still, lawyers sometimes step on themselves by offering too much to the jury. They know the power of the technology and how juries get engrossed in it. But lawyers also get nervous when jurors' eyes are glued to a monitor as if they are watching television.

Goldenberg said lawyers don't like the monitors in the jury box because they want the jury's attention focused on them and the witness stand. "If an attorney was going to design a courtroom, they would like to see a large monitor, preferably behind the witness. What happens in these high-tech courtrooms is the lawyers overindulge in what evidence they are going to present, and what tends to happen is they lose the jurors."

Goldenberg and his staff help train judges and lawyers to use the technology and offer sound advice: Sometimes less is better.

In his computer-assisted litigation course at McGeorge School of Law, Galves preaches moderation as well. He uses PowerPoint to display how technology can lose a jury. One of his assignments is for his students to take a historic speech and display it via PowerPoint. "What's interesting about this is these great, powerful, passionate speeches can be trivialized and look almost ridiculous." The point is to use the technology only when necessary and when it will make an argument more effective.

In courtrooms with monitors, judges can rein in a lawyer who is overusing technology by shutting down, via an easy-to-use override button on the bench, what is shown to the jury via technology. In some cases, DOAR has installed a more physical judge override switch, like a light switch, for some judges who aren't tech savvy.

Too many judges and lawyers continue to struggle with the technology or refuse to use it, Winslow said. "Because it's new and in large part, nothing more than that. It's the same with the bar. If we have done it and done it successfully for 25 years, why make a change now?

"The answer is so obvious it's barely worth talking about: because you're a lot more effective and you're going to be able to do two cases in the time it took you to try one in the past," he said.

In New Mexico, Roybal and his staff coach users on the technology. "One of the biggest problems we've run into is that that's a lot of technology for new judges to learn," Roybal said. He said judges can get "tripped up" easily. "They'll click the wrong part of the screen. They think the PC is locked up, and they'll reboot it, and it will take them five minutes to get it back up."

DOAR's Goldenberg said there are very few problems with the technology itself, which is mostly commercial-grade equipment that rarely fails. "A plasma screen will burn out after so many years; if a monitor goes down, we'll replace it within 24 hours. Someone will knock a desktop monitor off the counsel table, or an unruly defendant will just chuck it at the judge. It happens more often than you would think."

DOAR tries to make the transition as easy as possible for judges, though less tech-savvy judges needn't worry. They have some time before the smart courtroom becomes the law of the land. There isn't a lot of money for it right now, according to Goldenberg, because the focus is on homeland security.

"That runs in cycles. What will happen is we'll catch more of these terrorists, and the government will take more hits because we can't bring them to trial for five years," he said. "Then there will be a shift sending money to the courts to catch up on the backlog."
Jim McKay, Justice and Public Safety Editor Justice and Public Safety Editor