Bar Journal - June 1, 2000
The Future of Technology in Your Trial Practice
By: Julie S. Tobey & Attorney Robert L. Snow
I. DEFINING TERMS
Currently technology is not only the buzzword on the evening NASDAQ report, but an increasing reality in the lives of all New Hampshire trial lawyers. The principal litigation-oriented technology is in the form of software and hardware designed to store, organize, manipulate and present all conceivable forms of data for a litigant. The basic components include:
- Scanning devices to transfer written text images and video into a compressed medium, at this time usually CD ROM in nature;
- A computer sophisticated enough and fast enough to process the material;
- A software program designed for pre-courtroom and courtroom preparation and display;
- Barcode readers and barcodes to access the material at a precise time, in the correct order with little or no delay;
- A light pen (a substitute mouse) so that the operator can run the program from a standing position while presenting the case to a court or jury.
In addition to the so-called courtroom computer based technology, there is available with increasing frequency computerized deposition e-mail service, computerized teleconferencing, real time courtroom transcript, and various models of electronic document cameras commonly referred to as ELMO.
II. HISTORY OF TECHNOLOGY IN TRIAL PRACTICE
In our efforts to describe the effect and role technology will play in the future of your trial practice, it may be helpful to understand how technology came to play a role in trial practice and it's history over the past twelve (12) years.
When computers became widely used in law firms in the late 1980s they were originally used to manage transcripts due to the invention of the ASCII transcript and programs like DiscoveryZX™. For large-scale litigations, databases such as Summation™ were used to help create indices of key information from the documents that could be searched at a later date to help locate specific documents.
With the invention of these technologies, developers, along with guidance from attorneys, recognized the need and began to develop programs that could help manage the documents associated with paper-intensive litigations. One of the key programs developed was Exhibit-Link™, a DOS-based image viewer. Exhibit-Link was used in the first "Paperless" trial with Judge Carl Rubin presiding in U.S. District Court, Cincinnati, OH in the early 1990s. Shortly after the success of that trial, the FBI v. Wolfswinkle trial took place in Phoenix, AZ with Judge Roger Strand presiding in U.S. District Court. When the jurors were questioned about their reaction to the technology, they responded "it was the coolest thing they had ever seen. It was like being on LA Law".
With the release of Windows Link®, the first of the trial presentation packages was released, Trial-Link™. Trial-Link was developed at the request of Mike Manning of Morrison & Hecker during their representation of the RTC in the Charles Keating case in Tucson, AZ.
After the release of Windows, which made programs easier to use, and technology prices dropping, corporations such as Ford Motor Company began to realize the cost benefits to using the technology in place of their normal document productions. More and more trials were taking place utilizing technology including high-profile cases such as the Oklahoma Bombing case and the People v. O.J. Simpson. Judges were convinced of its benefits in trial estimating that it cut trial time from 1/4 to 1/2 and began to move forward with permanently installing the monitor display systems necessary to facilitate these types of trials.
To date it has been proven that using technology in litigation and trial reduces the cost and greatly enhances the jury comprehension in trial. This has been such an overwhelming conclusion that the Federal Courts have committed to automating 1 in 3 courtrooms in the country by sometime near the year 2005. Even state courts have become creative in finding ways to pay for these systems. Courts in general have moved to electronic filings and e-briefs and the Appeals courts are looking at accepting appeal records electronically. A final clue that technology is here to stay would be when you see it in a movie such as The Rainmaker during one of their courtroom presentation scenes.
III. STATUS OF LITIGATION TECHNOLOGY IN NEW HAMPSHIRE IN THE YEAR 2000
A. United States Federal District Court
Since its dedication in September, 1997, the Warren B. Rudman Federal Courthouse has been the leader in introducing courtroom technology to New Hampshire. From its inception Courtroom 4 has been known as the "technology courtroom," equipped from the outset with built-in computers and monitors at counsel table; adaptors for use of personal laptops in lieu of the court models; installed software compatible with the technology; built-in monitor screens for the jury, court, clerk, witnesses and audience; a state of the art sound system; a document camera; and peripherals in the form of light pen and barcode readers. In addition, real time testimony transcript is available to counsel, and videotape can be played from the central console either independently or as part of a pre-programmed format.
Access to the courtroom technology is regulated by a controller either at the judge's bench or the clerk's table. The court or the clerk can therefore activate or deactivate all monitors via a touch screen system and thus regulate use of the system and view of the evidence instantly.
Fundamentally, an attorney could enter the courtroom with a briefcase containing CD ROMs with 15,000 documents per CD, insert them into the computer and begin trying his or her case without a scrap of real paper exhibits. This has, in fact, happened in a number of cases tried in recent years throughout the country.
Since the dedication of Courtroom 4, the same technology has been expanded to Courtroom 1, and document cameras are available in all trial courtrooms. In recent months wiring has been installed to make real time teleconferencing and witness testimony from a distance a near reality. Finally, as most practitioners are aware, the Federal Court Docket can be accessed remotely via the internet to assess the state of any case or review this Court's decisions.
B. Franklin Pierce Law Center
In 1997, Franklin Pierce Law Center decided to renovate its mock courtroom space and include not only quality, updated furnishings but also state-of-the-art trial technology that would mirror that of Courtroom 4 in the new Federal Courthouse. The campaign and project were a success and in November, 1998 the courtroom was dedicated to Joseph A. Millimet and the firm of Devine, Millimet & Branch.
Since then, the courtroom has been used extensively. Two courses have been added to the Franklin Pierce Law Center curriculum to train law students on the practical use of technology in practice. Several programs have also been implemented to provide information and training to practicing attorneys. Those programs include: one-on-one training on programs such as Summation, TrialDirector™ and Sanction™ Three-hour CLE overviews of the technologies available and how they're used; and Two-day training courses that include informational sessions along with hands-on training. These programs have been very successful.
IV. WHAT'S AHEAD?
A. The Federal Court
Chief Justice Paul J. Barbadoro, who is a member of the Judicial Conference Automation and Technology Committee, reports that in addition to current court capability, the immediate future will allow real time presentation of offsite witnesses as a result of the aforementioned teleconferencing equipment. A year ago this possibility was a concept. Today it is a reality, thanks to newly installed equipment. ISDN lines allow the signals to be fast enough to present a witness in California in Courtroom 4 in real time. Three sophisticated cameras, powerful enough to give excellent quality to the image and yet small enough to be unobtrusive, form the second link, and a newly installed large plasma screen monitor mounted behind the witness box completes the required equipment.
Trial counsel previously forced to rely on videotaped depositions taken weeks or months prior to the actual trial will readily understand the advantage of not only having a live witness participating before a jury as any other witness, but also for that witness to be able to view, comment on and manipulate exhibits in real time.
It does not take a huge leap of imagination to foresee the day in the not-too-distant future when this same technology will allow the court and counsel to have conferences with no one traveling to the courthouse other than the judge. Once the appropriate telecommunication lines are established in a building, the hardware necessary to teleconference is not unduly expensive and can be used for a variety of purposes, thus, eliminating the necessity of long distance traveling and the time and expense involved therein. Major corporations are using this technology everyday. Hospitals are now linked with healthcare providers worldwide. An extension to the bar and bench seems only logical.
Judge Barbadoro, who is a great believer in and sponsor of advances in courtroom technology, has another initiative for the future which involves the research and development of a program which would ultimately result in an electronic case filing system. What this new concept would introduce is the ability of counsel to file pleadings electronically, and for the court to issue orders and decisions in the same manner. It is assumed that paper could be removed from the equation unless hard copy was required for some reason.
What this does for the court in the new millennium is to eliminate the massive paper storage requirements and record retention responsibility. For the practitioner, there is, in addition to the elimination of volumes of paper, the elimination of the need to travel to the courthouse on a Friday evening at 8:00 p.m. to get the pleading stamped in order to meet a filing deadline.
Thanks in part to a new courthouse whose designers anticipated in its construction the need to accommodate courtroom technology litigators who practice in the Federal Court have state of the art technology and can be assured that as new applications are introduced, they will receive serious consideration from the current court.
B. Franklin Pierce Law Center
Franklin Pierce Law Center understands the need and importance of arming their graduates with the technical capacity to be more beneficial to the firms they join than their counterparts. With that in mind, FPLC is increasing the incorporation of technology training into other areas of its curriculum.
In addition, it is anticipated that the new building addition to FPLC will include a distance learning classroom and a multimedia production facility. It is also anticipated that FPLC will update the technology in its current classrooms.
Not only is FPLC focused on providing an enhanced education to its students but also to the legal community of New England. In the coming months, the current trainings will be expanded upon, along with the addition of training programs for judges, both state and federal. It is also anticipated that cooperation with other training centers and bar associations will help to increase the benefit and availability of these training programs.
C. New Hampshire State Courts
In contrast to the Federal Court and Franklin Pierce Law Center, the Superior Courts of the 10 counties do not possess in their trial courtrooms the technology available to practitioners in the Warren B. Rudman Building or the Joseph A. Millimet Courtroom at the Law Center. It's easy to point the finger at state and county budgets as the primary reason. In reality, the issue is more complex.
Many of the older courthouses in the State have wiring that is hard-pressed to support the power needs of several monitors, computers and document cameras, let alone the space and architecture that will accommodate this equipment without turning the decorum of the courtroom into a "Radio Shack" sales room.
The State Judiciary has not had the advantage and opportunity to be exposed to this technology as their Federal brethren have through national committees focusing on the needs for and advantages of courtroom technology. They, therefore, have been given very little information about the ability to accommodate older courtrooms to the modern equipment. In point of fact, many older Federal courtrooms have now been retrofitted relatively inexpensively to accommodate the necessary cabling and monitors so as to maintain the necessary demeanor of the courtroom while at the same time incorporating the necessary changes. Additionally, some trial judges in the State system have been exposed to earlier abortive attempts at courtroom technology that was inefficient, slow, uninspiring and have concluded, based on those experiences, that this was not a step in the direction of improvement of the civil or criminal justice system.
The most significant reason for the lack of progress is not the condition of the courtrooms, themselves, nor the trial judges' attitudes, but rather, the lack, at least up to now, of clamor for this change on behalf of the organized bar. There have been no letters to the editor in New Hampshire Bar News demanding courtroom technology be installed in the Merrimack County Courthouse or any other courthouse, for that matter. The adaptation to new technology is like the adaptation to anything new. It's intimidating. Many practitioners, while interested in observing demonstrations of this technology, will quickly line up behind the old slogan "If it ain't broke, don't fix it." Besides, I hate computers!
Things are changing, and they are changing rapidly, and the State trial bar will become conversant with courtroom technology in the near future or they will face opponents using the technology against them. The result will be an uneven playing field, and that conclusion is no longer debatable.
It was interesting to note remarks by Judge Dalianis (now Associate Justice of the Supreme Court) upon assuming the position of Superior Court Chief Justice that courtroom technology was on her list of priorities. Franklin Pierce Law Center has now been teaching members of the Bar how to use the software and hardware identical to that installed in the Federal District Court. More and more attorneys are finding out that their cases can be better managed and developed with the use of software designed specifically for trial preparation and presentation. Members of the Bar of neighboring States are actively using "TrialDirector™" and other software in their offices and in their courtrooms. They have and will be petitioning trial judges in New Hampshire to use this technology. There have already been a few uses in older courtrooms that proved successful. Judge Perkins allowed its use in Belknap County in a recent products liability case. New Hampshire counsel who first was opposed to the use of the technology, readily adopted it and used it once it became obvious that (a) the failure to do so would put his case at a serious disadvantage; and (b) that the technology was not all that complicated to quickly learn and utilize.
The question of funding a few demonstration courtrooms with technology remains an issue, but not an impossible issue. Once a sufficient segment of the trial bar understands the inevitability of its use in their careers and the disadvantage of being late on the learning curve, creative funding techniques can be created. For example, there are national vendors of the equipment that would entertain leasing proposals for all necessary equipment, including reconfiguration of the courtrooms. The cost of these lease arrangements could be offset at least in part by user fees. This technique has been successfully used in Arizona and elsewhere. Before any real progress is made on this issue in the State system, however, the Bar must come forward and make it clear to the Court that it is interested and begin a dialogue on the need for courtroom technology in New Hampshire courtrooms. Once the dialogue takes place, funding solutions will follow.
D. Non-courtroom Technology Uses
Electronic briefs have become popular due to their communicative edge over traditional briefs. Imagine your written brief in electronic format plus case law, exhibits/documents, transcript testimony, etc. linked into your brief where it is referenced. The judge reviewing your brief can review it anywhere without having to look up case law and reference the documents themselves. E-briefs are typically stored on the web and can be accessed by a user with their web browser, or stored in their entirety, including linked information, on a self-running CD.
The Court of Appeals in the U.S. and their equivalent in foreign countries are looking at ways to capture a full record of court proceedings for appeals purposes. This full record would include video and audio of the proceeding, synchronized with the transcript and exhibits.
The web, as it relates to the legal industry, would not be complete without the web-based document repository. Web-based repositories can be set up so they are as secure as if the documents were physically residing in your office. Currently, most web-based repositories are outsourced and reside on the server of companies specializing in web repositories. However, companies like Special Counsel® based in Washington, D.C. have begun to set up these repositories within the firms, so that the firm has control over adding additional documents to the system as well as maintenance relating to the server system.
Users can dial up from any location to access the repository and with a security code can search, retrieve and print or view any document in the repository. Typically these repositories do not require the user to learn any new software and can be accessed through their web browser.
The immediate challenges of the future for New Hampshire trial lawyers will be to become conversant with the new tools available to them in their daily practice. Among them are various courtroom improvements ranging from the simple and straightforward document cameras to the more challenging "paperless trial" technology.
Attorney Ronald L. Snow is a director and shareholder with the firm of Orr & Reno, P.A., Concord, New Hampshire.
Julie S. Tobey, Director of Courtroom Automation & Training for Franklin Pierce Law Center, Concord, New Hampshire.