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Best of ABA TECHSHOW – Preparing for Your First Use of Technology in the Courtroom  

By Nils Jensen

Even the most seasoned courtroom attorneys should allow for extra preparation for their first use of technology in a courtroom setting, because the outcome could make or break the case.

This "Best of ABA TECHSHOW^®" article was originally presented at ABA TECHSHOW 2010, the World's Premier Legal Technology Conference and Expo. It's just one example of the terrific content offered at ABA TECHSHOW by more than 50 legal technology experts. ABA TECHSHOW 2011 will be held April 11-13, 2011, at the Hilton Chicago. Get registration and other information at www.techshow.com.

INTRODUCTION

Trial lawyers are in the business of education and persuasion. The key to success? Simple and effective communication. Words are a good way to communicate, visuals are good too. The combination is unbeatable.

Lawyers who communicate with words alone are not always effective. Words are fleeting, easily forgotten, often misunderstood. On the other hand, communicating with words and visuals increases interest, understanding and creates powerful memories.

Traditionally trials ran on words alone – ‘talking head’ witnesses and opening and closing orations. Over time the lawyer as wordsmith gradually incorporated visuals such as photos, poster boards, easel charts. Courtroom technology is merely the next step in this evolution. It takes visuals to a new level.

Courtroom technology is a tool to enhance communication and persuasion. It allows words and images to be combined simply and seamlessly. A lawyer can create, display and persuade using photographs, diagrams, graphics and documents.

The components of courtroom technology are not new. It’s their application to a court setting that is relatively recent and for some rather novel.

The technology doesn’t change the role of the trial lawyer as educator and persuader rather it empowers the lawyer to achieve his/her goal more efficiently and more effectively.

Courtroom technology can bring a dull case to life by engaging the listener. It can reduce the length of a trial by many thousands of words. It can make the incomprehensible comprehensible.

Where in the past a lawyer handed around 5x7 inch photographs, courtroom technology allows the jury to see the same images on a 5x7 foot screen. Where presenting documents was often a tedious disengaging exercise, technology helps connect the listener to the witness. Where closings were once all words, technology can effortlessly weave words with images.

Technology can also combat a juror’s tendency to ‘zone out’. Psychologists suggest people lose attention if presented with single source information for longer than five to seven minutes. We each have our own personal screen saver that is set to come on whenever we lose interest or the scenery hasn’t changed in some time. We drift off to wonder if we left the tap on at home or when the next coffee break is. This occurs more often when we are listening to words only. On the other hand when we are directed to changing images and interesting visuals we can focus for longer periods of time. We re-awaken as the scenes change – much like moving a mouse to cancel the screen saver.

While words remain important in our busy lives, the trend using new electronic forms of communications is to use words in greatly compacted ways. Blackberry thumb-writers and Twitterers are a testament to a new reality. As words are being compacted visuals take on greater importance. Ad agencies know this all too well. They rely largely on images to sell their products. Words are used sparingly and strategically.

Arguably the goal of an ad agency and the goal of an advocate are not far apart. An ad agency wants to sell a product; the advocate wants to sell a fact or idea. Richard Waites puts it bluntly; advocacy he writes “is the highest form of selling in the sense that we are selling ideas that will affect people’s lives”.¹

Ad agencies sell with visuals. They accept the reality that we live in a world where the image is often the message.

For the courtroom advocate understanding this reality is important. Fashioning a case that doesn’t build on this reality is like washing your feet with your socks on – not terribly effective.

‘Talking head’ witnesses do not hold the attention of a jury like they used to. Long orations can fall on deaf ears or trigger personal screen savers. Using readily available computer hardware and software in the court opens the door to the creation and display images that have the potential to capture and hold the attention of the modern trier of fact.

Experience shows that modern juries expect fast paced multi-media computer assisted presentations much like they see on television. The ‘CSI effect’ has been identified by trial attorneys as a factor that must be accounted for when preparing for trial. Although the facts of a case have a definite affect on the outcome of the litigation, some court observers have been heard to say that the better technology often wins the case.

Courtroom technology can also improve information retention.

Information retention is an issue in long trials where the jury hears evidence for month after ponderous month. According to Confucius the use of visuals can increase information retention: I see and I remember. More recent studies have also shown that jurors retain significantly more evidence when presented with visuals.²

The math is simple: words + visuals > words alone.

But beware, courtroom technology is never a substitute for good facts and clear concepts, it only adds persuasiveness to what you have to say. Courtroom technology consultant Paul Unger sums it up in his three guiding principles for using courtroom technology:

• Have something meaningful to present
• Forget what you learned in law school and say it like a human being; and
• No technology in the world is going to help you with the Rules 1 and 2!³

THE TECHNOLOGY – DON’T PANIC

Courtroom technology does not require a mastery of rocket science. All you need is willingness to try and fail and to try again. This is not at all that different from the early experiences of any barrister.

The main components of courtroom technology are simple and have been around for some time:

• A laptop
• PowerPoint software
• A document camera
• A projector and screen or a set of monitors

When connected and used these components will quickly launch you into the latter part of the 20th century.

To read and download the rest of this article, visit the Best of ABA TECHSHOW Archives at www.techshow.com/bestofabatechshow.

¹ Courtroom Psychology and Trial Advocacy by Richard Waites

² Considerations When Looking at Courtroom Technology, Bell, Boyd & Lloyd LLC www.bellboyd.com

³ Showtime at the Courthouse; Paper presented at ABA TECHSHOW 2008.