A recent article in Law Technology News asks: Did Mark Lanier change the way you use Powerpoint at Trial? Gosh, I hope so. For the past several years, I have witnessed many lawyers misuse technology in the courtroom. The funny thing is, they are usually very experienced lawyers and they are completely unaware that they are making a mistake.
There are two basic mistakes I have seen lawyers make. The first mistake is using technological bells and whistles simply because they exist and not because they are helpful. The second is giving up on the technology.
In my experience, lawyers tend to overuse technology. For some reason, when lawyers get ahold of a new technology they forget why the lawyer needs the technology in the courtroom in the first place. Visual communication technology is there to assist a witness to tell the story and to assist the jury to remember the information and be persuaded by it. That's it. If technology is interfering with the witness’ retelling of the story or if the visual tool is preventing the witness from remembering the information, the technology is in the way and it ought to be removed from the courtroom -- because it is not helping.
But it appears that this is hard for some lawyers to recognize. Lawyers who have spent the time to figure out how to use the software and electronics are proud to show everyone that they have mastered these tools. Like an excited child with a new toy, they will show off all of what the tools can do. But a lawyer who highlights 400 documents in bright yellow, has in reality highlighted nothing. Doing so distracts the jury – the exact opposite of what the trial lawyer set out to do. Worse, it could possibly hurt his case.
Visual communication should be thought of as a smart bomb. It has a specific focused goal. The type of media used to display evidence is incidental to the type of information the lawyer is trying to convey. The need to display a certain type of evidence will determine the medium/technology on which to display that evidence, if at all (such as a large format poster, a model, a document camera, videotape, computer presentation, 2D animation, 3D simulation, etc.). The trial lawyer should employ a particular medium because it is useful for a particular reason. In preparing for trial, the effective lawyer must analyze the best method for presenting that particular information (e.g., timelines work better in a scrolling interactive presentation and not on PowerPoint slides).
Second, lawyers tend to underuse visual communication technology. This is probably motivated by inexperience - not as a lawyer, but as a lawyer practicing with 21st Century tools. If a lawyer is unfamiliar with how to effectively integrate a visual presentation into his or her own style, they tend to just let the technology go. They give up on it. In my experience, this is almost always because the lawyer did not leave enough time to prepare himself to properly and effectively use the presentation tool. More time … means better prepared.
Another way in which lawyers tend to underutilize technology is by giving up on its admissibility. Thomas Edison said: "Our greatest weakness lies in giving up. The most certain way to succeed is always to try just one more time."
I recently tried a case where we wanted to use an interactive timeline throughout the trial. We asked the judge if we could use it in the opening argument. He said, “No.” We asked to use it in with our first witness. The judge said, “No.” We asked to use it in the cross-examination of our opponent’s key witness. He said, “No.” We then asked to use it in our closing argument. The judge said, “For the last time. No!” Finally, I asked the judge if we could use a blackboard to display our timeline to the jury in the closing argument. The judge said, “No!!!”
Later that afternoon, the judge’s clerk called to say that the judge would reconsider the use of the interactive timeline before closing arguments the next morning. He did and we were allowed to use the interactive timeline during the closing … and we won.
Sometimes, getting a judge to understand why the technology is helpful and why it does not raise any admissibility problems can be a challenge. It helps to give the judge an analogy, like a chalkboard, to make him feel more comfortable with how and why the technology will be used. It also helps to not take "no" for an answer.