Gizmos in the Courtroom: Don't use technology at trial just because you canAuthor(s): JAMES W. McELHANEYSource: ABA Journal, Vol. 83, No. 11 (NOVEMBER 1997), pp. 74-75Published by: American Bar AssociationStable URL: http://www.jstor.org/stable/27840111 .

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W?iam LITIGATION

Gizmos in the Courtroom

Don't use technology at trial just because you can BY JAMES W. McELHANEY

Time was, a lawyer reached the cutting edge of technology in the courtroom by turning off the lights and showing a couple of slides or using an overhead projector to dis play an important document.

And it was only 20 years ago that lawyers and judges were at odds over keeping parties in line when taking and showing video depositions?a concern that now seems almost quaint.

Some trial judges still are un easy about lawyers using a chalk board in examining witnesses or showing the jury an exhibit during an opening statement even though it has been admitted in evidence.

Technology is not waiting for them. Today there are all kinds of gizmos that lawyers use in the courtroom?gadgets that retrieve, store, show, re-create, reproduce, re

enact and highlight evidence, argu ments and exhibits. Here are a few:

Laser pointers are miniature laser guns the size of a fountain pen that run on batteries and show a bright red dot of light on anything you want to point out. It's like hav ing an electronic stick that reaches all the way across the room.

Laser pens are like bar code scanners at the supermarket. Using a laser pen as a "key" to a comput erized retrieval system, you swipe it across a bar code stripe in your trial notebook to bring up a docu

ment, a picture, a chart or a partic ular page of a deposition.

Video presenters are small video cameras with their own light and projection systems. Little legs hold the camera above the table you set it on. Turn the system on, and whatever you put under the camera is displayed on the screen, includ ing documents, pictures, graphs and even three-dimensional objects.

James W. McElhaney is Joseph C. Hostetler Professor of Trial Prac tice and Advocacy at Case Western

Reserve University School of Law in Cleveland. He is a senior editor and columnist for Litigation, the journal of the ABA Section of Litigation.

With a small keypad, you can zoom in and out, focusing on important details. And the whole thing folds into a carrying case.

The computer is the key gizmo for made-to-order software that re-enacts airplane crashes and automobile wrecks or shows why your plaintiffs patent is unique. The computer also is the heart of retrieval systems that use laser disks to store thousands of docu ments and exhibits that can be brought up in court instantly. It also runs presentational software that will list the key words for your final argument on the video screen, display a pie chart when you click the mouse, and even do animation.

And the computer is what you use to search through a witness's deposition when it's put on an or dinary floppy disk?something that many court reporters are doing at no additional charge.

High tech can certainly help make interesting presentations. But it isn't cheap. In a large case with lots of documents, exhibits and com puterized re-enactments, it is easy to spend $50,000 or $100,000 just on demonstrative evidence.

Worth it? That depends on the lawyer as well as the gizmo.

"I love it all,* says Randi Mc Ginn, a criminal defense and plain tiffs personal injury lawyer in Albu querque, N.M. "Ten years ago they did a study that showed when tele vision programs did not change camera shots at least every 17 sec onds, viewers would get bored and change the channel. Lawyers need to give jurors visual stimulation, and all these modern gizmos help us do it."

McGinn likes to use her com puter during opening statements and closing arguments. Some pro grams, she says, create visual pre sentations that include titles, dif ferent colors and backgrounds, even your own pictures and animation,

"It's so simple, anybody can do it," says McGinn. "All of corporate

America is using this kind of pre sentation, so why shouldn't we? People are used to it. There's noth ing new, odd or strange about it. Besides, juries love it."

74 ABA JOURNAL / NOVEMBER 1997 ILLUSTRATION BY JOHN SCHMELZER

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And yet, when making a point really come alive, McGinn is just as

likely to use something simple and real instead of an electronic picture. Once when she was cross-examin ing a doctor on how cancer metas tasizes, she had the witness stand up and hold a grapefruit (which represented the tumor) right next to

notes, which signified the migrat ing cancer cells that McGinn pulled off and stuck all over the doctor during her cross.

And McGinn loves to use scale models with little buildings, cars, trees and people. "It works best," she says, "when the judge lets the jurors come down from the jury box and gather around your model.

When you and the jurors play with the toys together, you win."

Donald Beskind, who practices in Raleigh, N.C., and teaches trial advocacy at Duke University School of Law in Durham, uses his Elmo brand video presenter constantly. "Not just for trials," he says, "but for all kinds of presentations. I even used it last week for a mediation."

Still, Beskind says he is not overly gadgeted. "It's not wise to tempt the gizmo gods," he says. "I think it's the lawyer's job to make sure everything works. It's part of a

lawyer's credibility. And I don't like to have egg on my face."

Beskind is not a fan of the overhead projector, which lots of

lawyers like. "I think they're noisy and cumbersome, and it's too easy to get something upside down. I prefer to use blowups mounted on foam board as a screen and use a video projector to project my high lighting right on top of the exhibit. That way the highlighting goes away when I turn off the projector, and my exhibit gets to go in the jury deliberation room."

David Malone of Washington, D.C., tries large corporate cases?

just the kind of work you would think calls for putting thousands of documents on laser disks for in stant retrieval in the courtroom.

"Don't be seduced by gadgets," says Malone. "I tell my clients they don't want these big disks with 52,000 documents on each side. ...

What they need me to do is pick the 14 documents that are going to win their case."

Hazards of loo Much Technology A problem with using the new

sophisticated software is that it lures you into making charts and exhibits that try to do too much. "It lets you put too many dimensions in a single exhibit," says Malone. "And every time you add another dimension, the jury tries to make sense out of it. The computer makes it too easy to dilute your message with too much information."

And Malone isn't taken with computerized animations and re creations. "Just because it's on a television screen doesn't mean the jury thinks it happened that way. A re-enactment is not the same kind of truth as other evidence. Besides, the jury knows the lawyer was in volved in creating it."

One way to deal with thou sands of documents is to approach them as a group, the way George Bramblett of Haynes and Boone in Dallas did for Exxon Corp. in its successful case against Lloyd's of London, which had refused cover age for the oil spill from the Exxon Valdez in 1989. At issue was the $2.5 billion Exxon spent cleaning up Alaska's Prince William Sound after the spill.

In a corner of the courtroom was a massive pile of boxes?a com

puter run that documented every payment Exxon had made in the cleanup. They were all pre-admit ted in evidence but not yet pub lished to the jury.

Instead of going through even a handful of the documents, much

less showing any of them on a video screen, Bramblett just pointed out the boxes to the jury and made a

perfunctory offer to the judge. He explained that they had been on file with the court for months, and Lloyd's had had an opportunity to go through them if they wanted.

Then for the next 2^ hours, Bramblett had the Exxon official in

charge of authorizing the cleanup payments narrate a fascinating videotape showing how Exxon had spent the $2.5 billion?all of the things it had done to clean up one of the biggest environmental messes the world had ever seen.

Another important point for Bramblett and his co-counsel, J. Donald Bowen of Helm, Pletcher, Bowen & Saunders in Houston, to show was that the spill was human error?like a truck driver missing a turn?instead of something cloaked in mystery and suspicion.

So they brought the actual steering column of the sister ship of the Exxon Valdez into the court room?exactly the same as the one

Captain Hazelwood's crew forgot to give just a quarter of a turn in Prince William Sound.

When you have to show the

jury documents, Bramblett thinks pictures on the video screen are all

right, but he prefers "plain vanilla" blowups mounted on foam board. "They don't go away when you turn off the switch," he says.

Not everybody loves gizmos. Gerald Messerman of Cleveland, who defends both big criminal and civil cases, says the added costs of trial are "absolutely ungodly" and worries that they make litigation increasingly undemocratic.

And Tom Demetrio, the re nowned plaintiffs personal injury lawyer at Chicago's Corboy & De

metrio, says, "I'm going in the oppo site direction from where a lot of

lawyers seem to be headed these days.

"I like anything that simplifies the issues for the jury instead of

making them more complex. I don't like elaborate exhibits. I don't even use blowups any more. I prefer lit tle snapshots?Polaroids if I can

get them. I don't want any of my evidence to seem manipulated or contrived."

Now think about it for a mo ment. Of all these lawyers, who's got the right approach for using giz mos in the courtroom? That's easy. All of them.

ABA JOURNAL / NOVEMBER 1997 75

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