ADVANTAGES AND PITFALLS
OF MODERN COURTROOM
TECHNOLOGY
Drug, Device and Biotechnology, Products
Liability, Class Actions and Multidistrict
Litigation, Trial Tactics, Premises and
Security Liability Section Meetings
March 2, 2007
7:30 AM – 9:45 AM
By
Deborah D. Kuchler
Lannie Gwartney
Abbott, Simses & Kuchler, P.L.C.
and
Leslie C. O’Toole
Ellis & Winters LLP
FDCC 2007 Winter Meeting
Fairmont Princess
Scottsdale, Arizona
February 28 – March 3, 2007
DEBORAH D. KUCHLER is a shareholder with the law firm of Abbott,
Simses & Kuchler. Ms. Kuchler graduated cum laude from the University
of New Orleans with a B.A. degree in education in 1980. Her primary
focus was upon the secondary school instruction of English and Biology.
She attended Loyola Law School in New Orleans, Louisiana at night while
working full time as a natural gas contract administrator and gas supply
representative for an interstate natural gas pipeline company. She was a
member of Loyola Law Review and graduated in 1985 in the top 10% of
the combined day and night school class. She was privileged to serve from
mid-1985 to 1987 as law clerk for the Honorable Patrick J. Carr in the
United States District Court for the Eastern District of Louisiana.
Ms. Kuchler is admitted to practice in Louisiana, Mississippi and Texas. She is a member of the
Louisiana, Mississippi and Texas State Bar Associations, The Federation of Defense and
Corporate Counsel (FDCC), Lawyers for Civil Justice (LCJ), the Defense Research Institute
(DRI), and the American Chemistry Association (ACA). She is a certified Six Sigma Green Belt
and puts the efficiency precepts of Six Sigma into practice in the administration of the Firm as
well as the handling of client matters. She enjoys the science issues presented by her docket and
typically handles the expert and Daubert issues associated with the Firm’s interesting caseload.
Ms. Kuchler believes that many clients’ interests are served by collaboration among their outside
counsel. To foster the application of that principle, she served on a Collaboration Task Force to
co-author a White Paper on collaboration and co-authored an article entitled “Building the Virtual
Law Firm Through Collaborative Work Teams,” which was published in the October 2001 issue
of the American Corporate Counsel Association’s publication ACCA Docket.
Ms. Kuchler manages dockets of complex civil litigation in Louisiana, Mississippi and Texas
involving the defense of chemical and particulate exposures (including asbestos, silica, kaolin,
vinyl chloride, volatile organic chemicals and benzene), Pharmaceutical Litigation (including
hemophilia AIDS, Hepatitis C, anti-coagulation medications, and cholesterol-lowering
treatments), Mass Tort Litigation (principally relating to chemical releases into air and
groundwater), Product Liability (including firearms), Premises Liability, and Hearing Loss.
Ms. Kuchler’s trial experience includes serving as lead or co-lead trial counsel in numerous state
and federal actions, including a two-week trial involving alleged dioxin exposures; a three-week
trial involving a chemical release from a tanker truck; a six-week trial addressing purported
community asbestos exposures as a result of allegedly contaminated fill dirt deposited on property;
a three-week trial arising out of the explosion of a natural gas platform involving platform damage
and down-hole reserve losses; a three-week trial exploring the complex science issues of a
Reactive Airways Dysfunction Syndrome claim related to alleged exposure to volatile organic
chemicals emitted from new carpet; a two-week trial involving claims of a silicotic against a
manufacturer of air-fed hoods; a three-day trial regarding a cargo of contaminated corn glutten
feed; and several trials in state and federal court (including an admiralty claim for shipowner
limitation of liability, and multiple wrongful death claims and personal injury claims) arising out
of the fire aboard a commercial fishing vessel that exploded after it struck an unmarked
submerged natural gas pipeline.
Ms. Kuchler can be reached via e-mail at deb-kuchler@abbott-simses.com.
2
Leslie C. O’Toole is a partner in the Raleigh office of Ellis & Winters LLP. She
received her A.B. degree, magna cum laude, from Brown University and her J.D.
degree, with high honors, from The University of North Carolina School of Law.
Ms. O’Toole practices in the areas of civil litigation, products liability (including
drugs and medical devices), and medical malpractice defense. Ms. O’Toole has
also been part of a regional and trial counsel team in the breast implant litigation,
as well as other drug and medical device litigation.
Ms. O’Toole currently serves as President of the North Carolina Association of
Defense Attorneys, and is Chair of the Drug, Device and Biotechnology Section
of the FDCC for 2006-2007.
In addition, Ms. O’Toole has given numerous presentations on Daubert, trial
skills, company documents, and other topics for organizations such as the North
Carolina Association of Defense Attorneys, DRI, the FDCC, The North Carolina
Bar Association, and the National Institute for Trial Advocacy.
3
INTRODUCTION
“An invasion of armies can be resisted; but not an idea whose time has come.”
Victor Hugo, Histoire D’Un Crime (1852)1
Computer savvy in the modern world is no longer the exclusive
provenance of teenagers and geeks. Our adversaries, clients, jurors, and judges
are familiar with, and coming to expect high tech displays in all areas, including
the courtroom. Data and anecdote alike support the truism that visual
presentations aid learning and memory. The modern defense lawyer cannot
afford to practice in the Stone Age, but must be proficient with the many
technological advances that allow more efficient and effective courtroom
presentations.
Thus, it was that in 1998 the Administrative Office of the United States
Courts launched a pilot program to fund advanced technology for courtrooms.
This effort included monitors, document cameras, video-conferencing
capabilities, and internet connections. Many federal district courts have
incorporated the new technologies, and state courts are following suit. In
addition, videoconferencing is now used in the United States Appellate Courts to
hear oral arguments.2
Now that many courtrooms are electronic, litigants can use the technology
without investing as much, evening the playing field between better-heeled and
less wealthy contestants.3 Litigating in a fully furnished electronic courtroom also
eliminates the problems involved in bringing in and setting up one’s own
equipment.
Outlined below are descriptions of some of the modern technologies, and a
discussion of their advantages and disadvantages as compared to their older
technological counterparts. In addition, some ideas on pre-trial strategies to
avoid possible pitfalls and are briefly described.
OUTLINE OF MODERN TECHNOLOGIES
I.
Evidence Presentation System
Bartlett’s Familiar Quotations, 427:18 (16th ed. 1992).
Elizabeth C. Wiggins, “What We Know and What We Need to Know About the Effects of
Courtroom Technology,” 12 Wm. & Mary Bill Rights J. 731, 738-39 (April 2004).
3
See Michael E. Heintz, “The Digital Divide and Courtroom Technology: Can David Keep Up
With Goliath?” 54 Fed. Commun. Law J. 567 (2002).
1
2
4
At the heart of the electronic courtroom is the evidence presentation
system. An evidence presentation system enables the lawyers to show jurors, the
judge, witnesses, and other counsel documents and exhibits on a network of
monitors. In a fully wired courtroom, screens will be located at the witness stand,
jury box, bench, each counsel table, as well as near the court reporter and
courtroom deputy. Large, courtroom monitors are also present in some
courtrooms to allow the public to follow the proceedings.
The evidence presentation system is usually housed in a console, or media
cart, located near the podium. It includes a document camera used to display
exhibits as well as three-dimensional objects. The console also might contain a
video cassette recorder, audio tape recorder, and printer.
Laptop computers can be plugged into the console to allow any software
program to be presented on the courtroom monitors. A lawyer can control the
presentation of evidence from the presentation console in a wired courtroom.
Additionally, by plugging a laptop into the console’s interface ports other
computer-generated evidence can be presented, such as digitally stored documents
and PowerPoint presentations.4 PowerPoint slides can be used for displaying
charts, testimony, and exhibits.
Video clips of depositions can be edited to flow seamlessly, eliminating
areas of lawyer discourse and objections as well as testimony that the trial lawyer
does not wish to present. Video clips of possible impeachment testimony can be
prepared in anticipation of situations in which they may prove useful, and are
more effective and less time-consuming than fumbling with paper transcripts.5
The synchronized transcript can be shown simultaneously with a video deposition
excerpt. In addition, a split screen may be used to display a relevant or
contradictory document alongside the witness’s deposition testimony.6
In an electronic courtroom the judge also has a “kill switch” to
immediately turn off the screens, thus excluding evidence it finds improper.
Judges also can use the equipment, for example, conducting voir dire with
PowerPoint. Judges may have a touch screen control panel to operate all aspects
of the evidence presentation cart, including the ability to override lawyers’ use of
focus and zoom features. Judges can switch among the various document
See Michael E. Heintz, “The Digital Divide and Courtroom Technology: Can David Keep Up
With Goliath?” 54 Fed. Commun. Law J. 567, 571 (2002).
5
See Fanelli v. Centenary College, 211 F.R.D. 268, 271 (D.N.J. 2002).
6
See William H. Jordan, “Trial Presentation Technology: A Practical Perspective,” 67 Tenn. L.
Rev. 587, 590-91 (Spring 2000).
4
5
cameras, whiteboard, and laptops, and can control video conferencing
equipment.7
The evidence presentation system should be much faster, more efficient,
and provide greater clarity than the technologies that it replaces, such as the
blackboard, blow-up board exhibits, overhead projector, easels and poster boards.
Moreover, they allow the attorneys to manipulate, enlarge, emphasize, and
highlight select portions of the exhibit for the jury’s elucidation. However, these
“old-fashioned” methods of evidence presentation may still have a place in the
trial strategy. For example, easels may remain useful for several key exhibits that
the trial lawyer wants displayed for a longer time.
II.
Bar Codes
Exhibits as well as video clips can be bar-coded to allow instant viewing
by scanning the barcode from an index. Original exhibits are scanned and
imported into the system and each exhibit is assigned a bar code. All of the bar
codes are recorded, with an accompanying description, on a separate index or
notebook. When the exhibit is needed at trial, the attorney swipes the index with
the bar code wand, and the system retrieves the exhibit and projects it onto the
courtroom monitors. As the witness testifies and examines a document, the
exhibit is pulled up by swiping a bar code and is projected to the jury.
The speed and ease of this technology over older methods, such as trial
notebooks and videotape collections, is undeniable in document-intensive cases.
However, in a trial that will require only a few documents or a small amount of
video evidence, the expense may not be justified.
III.
Video-Conferencing
Video-teleconferencing is more and more frequently being used to permit
off-site witnesses to offer "live" testimony during trial. It is also being used in
federal appellate proceedings to hear oral arguments without all participating
judges and lawyers physically present.
This can be useful particularly for the presentation of experts at significant
time and cost savings.8
The trial lawyer must, of course, weigh the
Mark W. Bennett, Chief Judge, U.S.D.C. N.D. Iowa, “High-Tech Justice: A View From the
Federal Bench on Courtroom Technology,” 30 No. 2 Litigation 3, 5 (Winter 2004).
7
6
persuasiveness of live testimony against the cost savings of bringing expert
testimony via videoconferencing. Videoconferencing is also useful to allow the
presentation of testimony of other third-party witnesses who are outside the
court’s subpoena power and unwilling to attend the trial in person. The court’s
approval of this method must be sought in advance of the trial.
IV.
Electronic Display Boards
A magnet board is an interactive touch board system. The lawyer may
approach it and touch with an electronic pen or even a finger. The board is
connected by a cable to a laptop computer at the counsel table. It can be erased
with an electronic eraser like on its traditional counterpart, a chalkboard. The
advantages of neatness, clarity, speed, and ease of erasure are undeniable.
An electronic white board can be used to project exhibits, which then can
be marked by an attorney or witness by use of a digital annotating system or touch
screen monitor. The image with the overlay markings may be printed and
introduced into evidence.
V.
RealTime Transcription
RealTime transcription is a system that allows a court reporter's
transcription to be viewed as it happens on monitors placed throughout the
courtroom for use by the judge, lawyers, and jurors. Notes may be taken as the
testimony scrolls by in the margins next to the testimony. This may be useful in
marking testimony on which cross-examination or follow-up may be desired.
Other advantages of RealTime are that it allows objectionable testimony
and statements placed on the record to be reviewed instantaneously. RealTime
also allows testimony to be searched using keywords.
It should be noted that RealTime is not available through the pre-installed
equipment in an electronic courtroom. Rather, attorneys must install special
software onto their laptops to enable them to receive the data.9
VI.
Internet Connections
Fredric I. Lederer, “Technology-Augmented Courtrooms: Progress Amid a Few Complications,
or the Problematic Interrelationship Between Court and Counsel,” 60 N.Y.U. Ann. Surv. Am. L.
675, 678 (2005).
9
See Michael E. Heintz, “The Digital Divide and Courtroom Technology: Can David Keep Up
With Goliath?” 54 Fed. Commun. Law J. 567, 573 (2002).
8
7
Some high-tech courtrooms now incorporate high speed or wireless
Internet connections that can be used during trial to connect to a web-based
document repository. Other advantages of Internet access from the courtroom
include that it enables the lawyer to access legal research tools and e-mail from
the courtroom.
VII.
Infrared Headphones
Infrared headphones are present in many electronic courtrooms and can be
used by jurors with hearing impairments.10 They may also be a useful tool for
listening to poor quality surveillance tape recordings.
VII.
Software Packages
Software is available for both trial and pre-trial document management.
Images, including documents and deposition transcripts, are scanned and loaded
into a database. Software programs are used for searching, displaying,
highlighting text, and displaying exhibits side by side. The attorneys can also
place notes in the margins concerning exhibits and testimony, which can be
accessed later or by other members of the trial team. The most popular legal
software systems include the following.
Sanction (www.verdictsystems.com)
Trial Director (www.indatacorp.com)
Live Note
Visionary
Summation
VIII.
Extraordinary/futuristic technologies
Other technologies are being developed that may someday make an
appearance in the courtroom. For example, IPIX Displays is a system developed
by Interactive Pictures Corporation to produce photographs that give viewers the
illusion of entering a three-dimensional space. Virtual Reality Displays are
possible using a head-mounted device that permits viewers to witness
See Michael E. Heintz, “The Digital Divide and Courtroom Technology: Can David Keep Up
With Goliath?” 54 Fed. Commun. Law J. 567, 571 (2002).
10
8
computerized displays as if they are there. Holograms also project a threedimensional image through use of laser beams.
There are special evidentiary issues involved in computer-generated
exhibits that result in a manipulation of the content of the evidence, such as
computer simulations and animations.11 The practitioner should ensure that this
type of exhibit does not run counter to relevance requirements under Rules 401
and 402; authentication requirements under Rule 901(a), (b)(1), and (b)(9); the
“Best Evidence” Rules 1001-1003 and 1006, hearsay Rules 801-807, and the
“Scientific Evidence” Rule 702.12
ADVANTAGES OF MODERN TECHNOLOGY AT TRIAL
The evidence presentation system allows attorneys to instantaneously
place visual and audio evidence before the entire courtroom, including the judge,
jurors, opposing counsel and onlookers.
The use of a variety of modern visual aides helps to maintain the jury’s
interest by quickly presenting and coordinating the exhibits to the witness on the
stand. In addition, memory is significantly improved by showing and not just
telling. Retention has been found to be increased significantly by using video
evidence.13 “In light of ever-changing technology, wide ownership of personal
computers, expanding use of the internet, and personal digital assistant devices,
among other electronic innovations, the lay person is increasingly immune to
confusion by the encroachment of technology into heretofore primitive
communication zones such as the jury room.”14 Nevertheless, the effect of these
techniques on jurors’ comprehension and judgment is subject to ongoing study
and debate.15
These technologies are especially useful in document intensive cases. The
ability to quickly and efficiently bring up documents and video clips speeds up
Fred Galves, “Where the Not-So-Wild Things Are: Computers in the Courtroom, The Federal
Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance,” 13
Harv. J.L. & Techn. 161 (Winter 2000).
12
Id.
13
See Michael E. Heintz, “The Digital Divide and Courtroom Technology: Can David Keep Up
With Goliath?” 54 Fed. Commun. Law J. 567, 578 n. 74 (2002); Bradley Ponder, “But Look Over
Here: How the Use of Technology at Trial Mesmerizes Jurors and Secures Verdicts,” 29 Law &
Psychol. Rev. 289 (Spring 2005).
14
Verizon Directories Corp. v. Yellow Book USA, Inc., 331 F.Supp.2d 136, 142 (E.D.N.Y. 2004).
15
Elizabeth C. Wiggins, “What We Know and What We Need to Know About the Effects of
Courtroom Technology,” 12 Wm. & Mary Bill Rights J. 731 (April 2004).
11
9
trial time immensely. Judges and trial lawyers who have participated in the hightech “Courtroom 21” project of the Federal Judicial Center have estimated that it
saves one fourth to one third of traditional trial time.16
Judges can see witnesses and evidence more easily, as well. According to
“The Third Branch” U.S. Courts newsletter, “More and more federal judges are
singing the praises of courtroom technology, having decided that technological
advances can both streamline litigation and increase juror understanding.”17
Judges have found that trials are more interesting and efficient, as jurors get to see
the evidence as it is presented.18 As a result, “the quality of justice is significantly
improved by a dramatic increase in real-time juror comprehension.”19
DISADVANTAGES
Admittedly, there is a steep learning curve involved with mastering the
new technologies and software products. This can be daunting to some
practitioners, particularly those who may have never learned to use word
processors or e-mail! However, there are many technical support companies that
provide training and ongoing advice. A few tech-savvy attorneys and legal
assistants can initially learn to master the devices and software. There can be onsite expertise available, as well.
Of course, one major concern is that technical glitches may be experienced
in the courtroom. The Courtroom 21 Affiliates Protocols for the Use by Lawyers
of Courtroom Technology provides that counsel owes a duty to use technology
competently, while the courts owe the practitioners a duty to provide information
and policies regarding the use of its equipment.20
The trial lawyer should be prepared to present his case without advanced
technology if technical difficulties are encountered. For example, it is wise to
come prepared by having an extra laptop with identical data. If using a digital
Fredric I. Lederer, “Technology-Augmented Courtrooms: Progress Amid a Few Complications,
or the Problematic Interrelationship Between Court and Counsel,” 60 N.Y.U. Ann. Surv. Am. L.
675, 676 (2005).
17
The Third Branch Newsletter, “Courtroom Technology Used Increasingly to Enhance
Proceedings,” May 2003.
18
Mark W. Bennett, Chief Judge, U.S.D.C. N.D. Iowa, “High-Tech Justice: A View From the
Federal Bench on Courtroom Technology,” 30 No. 2 Litigation 3 (Winter 2004).
19
Id.
20
Fredric I. Lederer, “Technology-Augmented Courtrooms: Progress Amid a Few Complications,
or the Problematic Interrelationship Between Court and Counsel,” 60 N.Y.U. Ann. Surv. Am. L.
675, 678 (2005).
16
10
document database, the document camera housed in the evidence presentation
console may be used as a back up for documents that are scanned incorrectly or
other computer glitches.21 Additionally, trial counsel may feel more comfortable
by having key exhibits prepared to show with a projector, if necessary. Some
judges may become impatient with technological glitches and order trial to
proceed without it.22
Trial support companies can be hired to manage the technology during
trial. This may require more scripting as an assistant may not be as readily able to
change the order of presentation. It is advantageous, if possible, for the attorney
or litigation assistant who is familiar with the evidence and the case to learn to run
the equipment. This person should be trained to solve minor technical glitches, as
well. This is also more economical and efficient than bringing in an outside trial
consultant. Of course, one key to a smooth and effective presentation using
unfamiliar technology is to practice as much as possible together with the
assistant who will be handling the equipment for you at trial.
There is a risk that the jury may lose confidence in the message, or that it
may appear overwhelming or too slick and obscure the message. There may also
be a perception of inequity between the parties if one side is prepared with
PowerPoint slides and electronic chalkboards while the opponent is using Magic
Markers and poster board.23 However, the public is becoming so much more
tech-savvy and used to the world of fast, slick messages, that there is a
countervailing risk without it of looking unprepared, not to mention dull.24 If the
trial lawyer has any concerns that technological feats will seem too slick or unfair
to the opponent, she may choose to establish a balance by using simple graphics.
The cultural makeup and sophistication of the jury pool should be considered in
preparing visual aids.25
The cost of equipment, software, support, and implementation can also be
quite high. For example, scanning all paper documents to create database can
See William H. Jordan, “Trial Presentation Technology: A Practical Perspective,” 67 Tenn. L.
Rev. 587, 596 (Spring 2000).
22
Sharon Nelson and John Simek, 31 No. 5 ABA Law Prac. 24 (July/Aug. 2005).
23
Fred Galves, “Where the Not-So-Wild Things Are: Computers in the Courtroom, The Federal
Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance,” 13
Harv. J.L. & Techn. 161, 287-297 (Winter 2000).
24
See Gordon Bermant, “The Development and Significance of Courtroom Technology: A ThirtyYear Perspective in Fast Forward Mode,” 60 N.Y.U. Ann. Surv. Am. L. 621, 633 (2005).
25
See William H. Jordan, “Trial Presentation Technology: A Practical Perspective,” 67 Tenn. L.
Rev. 587 (Spring 2000).
21
11
cost $1.00-$5.00 per page, so it may make sense to cull as many as possible
before hand.26 In a wired courtroom, much of the basic equipment is already
provided, reducing the cost to both sides and allowing even less prosperous
clients access to high-tech justice. Moreover, there may be countervailing cost
savings afforded with the use of advanced technologies, including a potentially
higher rate of settlement, shorter trials, fewer attorney hours, and fewer hours
billed by expert witnesses.27
The more advanced graphics and replications result in a demonstrative or
explanatory aide rather than a substantive evidentiary exhibit, the less likely it is
that the cost will be recoverable.28 Federal Rule of Civil Procedure 54(d)(1)
allows the award of costs that are within the scope of 28 U.S.C. § 1920. Section
1920(4) permits the recovery of “[f]ees for exemplification and copies of papers
necessarily obtained for use in the case.” However, an exhibit “’may not qualify
as an ‘exemplification’ if it is essentially explanatory and argumentative, serving
merely as an aid to the argument of counsel and the explanations of expert
witnesses.’”29
There is a split among the U.S. Circuit Courts concerning how broadly to
interpret the term “exemplification” to embrace the costs of enhanced videos,
computer animations, PowerPoint presentations, and graphic illustrations as costs
recoverable by the prevailing party under 28 U.S.C. § 1920(4).30 The Fifth
Circuit has narrowly held that the costs of enlargements related to trial exhibits
were not included under § 1920.31
Another consideration: Must one party “share” its presentation with
opposing counsel for cross examination? Or let them flounder with their own
See Elaine L. Spencer, “Common Sense Trial Preparation in a High-Tech World,” 15 No. 2
Practical Litigator 7 (March 2004) (discussion of how to balance technology with old-fashioned
trial preparation techniques to maximize value).
27
Fred Galves, “Where the Not-So-Wild Things Are: Computers in the Courtroom, The Federal
Rules of Evidence, and the Need for Institutional Reform and More Judicial Acceptance,” 13
Harv. J.L. & Techn. 161, 293 (Winter 2000).
28
See Arcadian Fertilizer, L.P. v. MPW Industrial Services, Inc., 249 F.3d 1293 (11th Cir. 2001)
(oversize documents and color photographs taxable as costs, but not videotape exhibits and
computer animations).
29
Summit Technology, Inc. v. Nidek Co., 435 F.3d 1371, 1377 (Fed. Cir. 2006) (quoting 10 James
Wm. Moore et al., Moore’s Federal Practice § 54.103[3][d] (3d ed. 2005)).
30
Kinzenbaw v. Case LLC, 2006 WL 1096683, *3 (Fed. Cir. 2006).
31
Coats v. Penrod Drilling Corp., 5 F.3d 877, 891 (5th Cir. 1993).
26
12
paper collections?32 By notifying opposing counsel of the technology you will be
using before trial these issues should be worked out in advance, perhaps even
through sharing and splitting the cost of video equipment rental.33
EVIDENTIARY CONCERNS
Another consideration in the use of advanced technology to present
evidence is whether the trial lawyer will meet all admissibility standards.34
Federal Rule of Evidence 611(a) provides for the trial court’s control over the
mode and order of presenting evidence “for the ascertainment of the truth.”35
Demonstrative exhibits, or pedagogical devices, created to aid the jury in
reviewing the evidence, which are not substantive evidence themselves, often may
not be admitted as evidence.36
For example, digital technologies permit editing written documents and
using text graphics, as well as edited videotapes, thus possibly presenting issues
with completeness. Fed. R. Ev. 106. Concerns of fairness, relevance, and undue
prejudice may arise in the event of the alteration of document, photograph, or
videotape to change its message.37 Fed. R. Ev. 403. The reliance on visual
displays may also lead to testimonial objections such as leading or lack of
foundation that must be carefully considered. For example, a court may require
testimony by a witness with computer expertise to explain how the image was
created.38
SOME PRETRIAL CONSIDERATIONS
See Jay N. Silberblatt, “To Share or Not to Share: From Technology Springs a New Question of
Courtroom Etiquette,” 26 Oct. Pa. Law. 30 (Sept/Oct 2004).
33
See William H. Jordan, “Trial Presentation Technology: A Practical Perspective,” 67 Tenn. L.
Rev. 587, 597-98 (Spring 2000).
34
Nicole J. De Sario, “Merging Technology With Justice: How Electronic Courtrooms Shape
Evidentiary Concerns,” 50 Clev. St. L. Rev. 57 (2002-2003).
35
Verizon Directories Corp. v. Yellow Book USA, Inc., 331 F.Supp.2d 136 (E.D.N.Y. 2004).
36
See Verizon Directories Corp., 331 F.Supp.2d at 140 (discussing appellate courts’ treatment of
the problem and advocating the admission of such evidence with proper judicial control and
sensitivity); Michael Hoenig, “Computer-Generated ‘Pedagogical’ Devices: Admissible or Not?”
11/8/2004 N.Y.L.J. 3 (col 1); Michael Hoenig, “More on Computer-Generated ‘Pedagogical’
Devices,” 12/13/2004 N.Y.L.J. 3 (col. 1).
37
See Rodd v. Raritan Radiologic Associates, P.A., 373 N.J. Super. 154, 860 A.2d 1003 (N.J.
Super. 2004) (magnified images of patient’s mammograms should not have been admitted in
medical malpractice action due to risk of confusion and undue prejudice).
38
See Rodd, 373 N.J. Super at 169, 860 A.2d at 1012.
32
13
Before establishing a trial plan it is imperative to check with the court to
find out the local rules concerning the use of technology in the court. Check with
the judge to get approval of the specific equipment and technologies. Also check
with courthouse security to be sure there will not be any security clearance issues
with bringing in any of the needed equipment, and obtain a court order allowing
it, if necessary.
Some courts will offer training on the equipment. Lawyers should take
advantage of this. Even if they do not plan to present an electronic presentation it
may give them advance notice of what opponents could do. The court’s webpage
may offer guidelines and instructions.
Visit the courtroom and get the lay of the land before trial. Locate electric
outlets and make sure they work. Locate telephone jacks, if needed. Sketch out
the courtroom, and determine whether the trial team will need extension cords.
Decide where to place each piece of equipment.
Get there early on the day of trial to set up. Test all equipment and
connections. Make sure it is out of the way of pedestrian traffic.
CONCLUSION
Along with the so-called “CSI effect” where jurors have come to expect
quick, infallible and glitzy forensic science, they have also grown accustomed to
visual and auditory aids that entertain, mesmerize and capture the imagination.
The fast-food generation now expects everything handed to them in the blink of
an eye in a drive-through lane with an electronic board to outline the order.
Youngsters can battle space aliens, fly a fighter jet over enemy territory and evade
the police in a high-speed chase with amazing computer-generated graphics on
their television screens with a Play Station or X-Box. Even the technologicallyimpaired can use a touch screen to scan their own groceries and check out
electronically in the supermarket. Grade-school children are proficient at
PowerPoint before they are adept enough to read and understand Moby Dick.
These same people end up on our juries. While the downsides certainly do
need to be considered, the trial lawyer who refuses to come into the 21st Century
in evidence presentation techniques does so at his own risk!
Other Resources
14

Courtroom Technology Manual, published by the Administrative Office of
the U.S. Courts (August 1999), available at
www.uscourts.gov/misc/courtman.pdf.

The ABA website contains a list of electronic court filing rules, chart
comparing various types of courtroom presentation software.
http://www.abanet.org/tech/ltrc/courttech.html

National Institute of Trial Advocacy and the Federal Judicial Center,
Deanne C. Siemer, Frank D. Rothschild, Anthony J. Bocchino, and
Donald H. Beskind, Effective Use of Courtroom Technology: A Lawyer’s
Guide to Pretrial and Trial.

National Institute of Trial Advocacy and the Federal Judicial Center,
Effective Use of Courtroom Technology: A Judge’s Guide to Pretrial and
Trial. Available at
www.fjc.gov/public/pdf.nsf/lookup/CTtech00.pdf/$file/CTtech00.pdf.

Courtroom 21 Affiliates Protocols for the Use By Lawyers of Courtroom
Technology. Available at
http://www.legaltechcenter.net/publications/whitepapers/protocols.pdf.

Courtroom Information Project,
http://www.courtroominformationproject.org/

1 Federal Jury Practice and Instructions, Chapter 6, Appendix A:
Computer Technology and Trial Procedure (6th ed.).

Kurtis A. Kemper, “Admissibility of Computer-Generated Animation,”
111 A.L.R.5th 529 (orig. pub. in 2003).
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