The following article was published in Law Week ColoradoOriginal PDF

High Technology In The Courtroom

by Brett Godfrey

Today’s trial practitioner is inundated with literature and advertisements touting the benefits of using technology in law. The subject is as hot as it sounds—the speed at which new technologies emerge is increasing exponentially, and lawyers with a mastery of technology are at a definite advantage. Technology in litigation is divisible into four broad categories: (1) the sometimes complex technology that lies at the core of a dispute, as in licensing disputes, product liability, medical cases and IP infringement claims; (2) the technology employed by experts, such as forensic specialists, reconstructionists, engineers, doctors and other scientists; (3) presentation technology, such as computerized animations and demonstrative, testing or experiment-based evidence; and (4) litigation support software, such as case management suites, paperless office and document repositories, databases, video deposition/conference software, research and imaging software. While all lawyers have computers and most know how to use PowerPoint, few attorneys comfortably and routinely use more advanced technology.

This brief discussion provides a few key tips in connection with bringing advanced technology into the courtroom, items (2) and (3) above.

Scientific Evidence and the Core Requirement of Foundation

The key to using advanced technology in the case itself (rather than the presentation) is to get it into evidence, which requires the attorney to establish proper foundation. Technologies for accident reconstruction, chemical and materials analysis, statistical analysis, diagnostic medicine and other forensic sciences are examples of areas in which expert opinion testimony is the sponsoring vehicle for the admission of scientific evidence. In a federal jury trial last year, we introduced into evidence a computerized animation of a snowboard accident that was received by the court as an accident reconstruction, rather than merely as a demonstrative aid. The jury saw the video and formed an indelible mental image of how the accident happened. The jury was also shown a video depicting the results of a finite element analysis of the rotational forces in the brain of the injured snowboarder to establish the exact mechanism of injury, accompanied by an exact model of the skull and brain of the injured person. These were powerful tools, but the key to their use was the establishment of proper legal foundation.

Statistical summaries, compilations, lab tests and other evidence is carefully filtered by the trial court in its “gatekeeping” role to ensure that it meets the requirements of Rule 702[2] and is reliable in its scientific underpinnings and application to the case. It is essential that an attorney understand the exact use of Rule 702 and Daubert[3]as guiding tools in the development of a proper foundation for scientific evidence. One of the most important recent cases regarding expert testimony is Hoffman v. Ford Motor Co.,[4]a case in which expert testimony regarding a seatbelt failure was rejected by the Tenth Circuit Court of Appeals, and a $4.5 million judgment was reversed with instructions to dismiss the case. Another useful tool is the Reference Manual on Scientific Evidence, which can be downloaded free of charge.[5]

If a computer animation is not admissible as a reconstruction, it may be offered as a demonstrative exhibit, to show the jury in an educational way how a principal applies or to demonstrate the nature of a lay witness account. In the sound discretion of the court, the testimony of a percipient witness may be buttressed by photos, diagrams or videos if the witness testifies that they reasonably and accurately depict what he or she observed.

The attorney wishing to introduce the results of laboratory experiments, reconstructive or statistical analysis or forensic studies must do two things in preparation for trial: (1) develop a full conceptual understanding of the technology, and (2)

Research and data access in court. There is nothing like having immediate access to all court filings, exhibits, case law and other data that might suddenly become important during a trial or hearing. My iPhone and iPad are both on data plans that allow for mobile wireless data access—sometimes called personal or mobile “hot spot.” This gives me and my entire team the ability to use Westlaw (which has a great app for mobile devices), Google, and other on-line research tools in court, and to access our firm’s servers directly so that we can pull up whatever we need, whenever we need it, from our wireless office infrastructure no matter where we are. All of this is made possible by the internet access my team gains from our portable devices, as most courts do not yet have wireless internet (Wi-Fi). We also upload entire case files into a secure private cloud and onto our laptops and iPads before trial in case our in-house FTP or VPN networks go offline during trial.

Learning New Science

Your goal is to get a jury to understand, for jurors never believe what they do not understand. If your own understanding of relevant information is limited, so is your ability as an advocate. How can you teach what you do not know? Research, study and consult extensively with your experts to become thoroughly knowledgeable on all science related to your case, including the testing methods used by your experts. Do this early in the case. Define all new terms before you use them or study material containing them. There is nothing that will shut down your mind or the mind of your jurors faster than a misunderstood word or term. The hours spent in this learning process will empower you beyond your expectations.

Presentation Tools

Most lawyers know how to connect their PowerPoint presentations (bullet-point outlines and slides) to the court’s built in displays in federal court, or to a projector in state court. What many lawyers don’t know, however, is how to make the very most of those tools during a live examination, opening statement or closing argument. Lawyers often become preoccupied with their computers, breaking their connection with the jurors. Nothing your computer can do is worth that, so the four key rules are: (1) practice with your equipment until you can set it up and operate it effortlessly without focusing on it, the way a trained soldier can field-strip and reassemble a rifle in the dark; (2) test everything several times at the office the day before you go to court to make sure everything is working; (3) set up your gear in the courtroom well in advance of your presentation and test it again there at the beginning of each day; and (4) have backups, meaning extra pre-loaded computers, USB flash drives, remotes, projector bulbs, cords and connectors, and be ready to proceed with nothing but your voice and a magic marker on the easel if all else fails.

How to use PowerPoint or Keynote. Endless bullet points are annoying and boring. They distract more than they help. Photos that take up the entire screen are better, provided they contain information or have emotional impact. Animations are even better, provided the attorney has learned how to use his remote with skill and can move away from the keyboard if necessary, to slow, stop, reverse and rewind the animation by touch alone with his hand in his pocket if need be, while talking and operating a laser pointer. We have found that PowerPoint and Keynote (Apple’s version of PowerPoint, which I prefer) is great for opening and closing statements, but not during the examination of a witness. When working with a live witness, it is better to use exhibit software specifically designed for trial that allows you access any exhibit at random, and mark, zoom, highlight and split-screen multiple exhibits, for the exhibit sequence you plan for a direct or cross rarely ends up being what you end up needing in a live courtroom, where things happen unexpectedly. For this, I use Trial Pad on an iPad, which allows me to rapidly access and display exhibits even when there are hundreds to choose from—provided I pre-load them correctly and practice extensively with them before trial.

Opening statement. When an exhibit has been pre-admitted, it can be used in the opening statement. Pre-admitting exhibits and animations by motion or stipulation is easier than most lawyers believe, and is always worth the effort, because showing photos, animations or documents (with key language lifted in a large-font call-out box) during your opening statement can galvanize the juror’s view of the case from the outset.

Video depositions and animations. Decide in advance which clips you plan to use at trial, and edit your video clips in advance. Have them on your desktop, ready to play with a click of the mouse. Synchronized transcripts are rarely worth the effort. Not all testimony is worth playing, and some questions and answers are better to read from a transcript in your own voice during cross-examination. Learn how to use QuickTime, Windows Media Player or Real Player in full-screen mode, and how to quickly switch from file to file while talking to a witness, or use an assistant ready with immediate access to the video files on cue. The advantage of video testimony is that it can be played anytime, so it can fill holes in the schedule of your live testimony, and you can make promises to a jury in you opening—even quoting the testimony to a limited extent—with confidence that the evidence will support your promises to the jury.

Equipment. We prefer to use Apple iPads and laptops because they tend to be more reliable and easier to use in court. Quality speakers and a bright (3,000 lumens or more) high-definition projector, with long cords and plenty of extension cords and power strips are a must.

Mobile devices. I have tried and won entire jury cases with just my iPad. Generally, however, I have at least two iPads and two laptops present in court. Of course, always be sure to put your phone on “vibrate only” or silent before entering the courthouse. Text messaging gives attorneys a means of communicating with the outside world during live proceedings and can be a life-saving resource, but be extremely discrete in doing this—with your phone below the table—as it annoys judges and juries to see you doing this.

Conclusion

Law must equal in sophistication those dilemmas it purports to resolve. Complex technologies entail bewildering causal relationships that simplistic efforts to achieve fairness. As the fruits of medicine, science and engineering grow less intuitive, the implementation of justice demands enhanced understanding which transcends legal precedent.

The coming era will present legal issues demanding solutions of greater ingenuity than any of the past. Ancient principles of common law often fail to apply when issues of modern intricacy are adjudicated. Our constitution, laws and treaties must be applied in order that we may equitably confront that which our inspired forefathers could not divine.

The sagacity to realize this goal must come not from our scientists or industrialists, but rather from those who pass and administer our laws. The wisdom demanded by this task will derive from reason enlightened by sophisticated advocacy.

Footnotes:

[1] Brett Godfrey is the founding partner of Godfrey | Johnson, P.C. He has tried over 80 jury trials in state and federal courts throughout the country. He is a former chemical engineer, pilot and Air Force officer. His cases frequently involve complex medical and engineering issues. His practice emphasizes the use of state-of-the-art trial technology in courtrooms and for litigation management, subjects about which he frequently speaks at continuing education seminars throughout the United States.

[2] See Fed.R.Evid. 702 and Colo.R.Evid. 702, the provisions of which are similar but not identical.

[3] Daubert v. Merrell Dow Pharms., Inc., 509 U.S. 579, 113 S.Ct. 2786, 125 L.Ed.2d 469 (1993).

[4] Hoffman v. Ford Motor Co., 493 F. App’x 962 (10th Cir. 2012) cert. denied, 133 S. Ct. 2734, 186 L. Ed. 2d 192 (U.S. 2013).