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August 2000

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Litigation Spotlight

Overcoming Trial Technophobia

By Albert E. Scherr

Litigation Spotlight: Overcoming Trial TechnophobiaMANY LAWYERS' first reaction to any kind of technology -- be it courtroom presentation software, database management programs, even Westlaw or LEXIS -- is some version of, "I'm not that kind of lawyer."

That's not surprising. After all, many (if not most) lawyers ended up in law school because they weren't particularly good at pre-med, math or sciences.

Trial lawyers often are the most skeptical. As a group, they believe effective courtroom work is all about persuasion -- and quality persuasion is, fundamentally, an act of creativity. An art form.

The exercise of that art is not about hardware and software, or programs and computers. It is about jury selection and jury bonding; reading the moment and seizing the opportunity; intuition and the feel of the case. At first blush, courtroom technology does not seem to fit in this picture. It is rigid and inflexible; linear and complex; it requires formats and programs.

Overselling Technology

Oddly, part of the problem has been the overselling of legal technology in general, and courtroom technology in particular. Lawyers read and watch the remarkable claims made about how this or that software or hardware will revolutionize the way that they do business. Trial lawyers are presented with the new and latest image of trial heaven: the completely paperless trial.

Implicit in many of these claims are two premises that make such claims their own worst enemy: (1) The way trial lawyers were handling cases in the pre-technology age was not good; and (2) If you just let the technology take over, you will be fine.

Both of these premises are wrong. And, when addressed to already technophobic trial lawyers, claims built on these incorrect premises backfire, and create false impressions as to the value and necessity of such technology.

The way trial lawyers were and are trying cases in the pre-technology age is perfectly fine. Their use of demonstrative evidence was and is, at its best, thoughtful and creative. But courtroom technology is more efficient; can be quicker to use; and more powerful. Courtroom tools can include presentation software, computer simulations and document management programs, all to help trial lawyers create and present different types of demonstrativeevidence.

An example? Imagine an expert witness who has just contradicted herself. The impeaching statement lies in a document amidst several thousand pages of discovery. With the swipe of a scanning pen, one can instantly show the witness --and the jury -- the visual and textual reality of the contradiction.

Another: Imagine your expert testifying to the details of a complicated surgery. Instead of using only words or an unwieldy sequence of poster boards, the expert can use a John Madden-like light pen to illustrate the various procedures on a colored diagram of a heart on computer monitors. Or, the expert can show a fully animated, computer simulation of the surgery.

The technology improves the presentation of the evidence. But, it is still demonstrative evidence. It is still an effort to make more visual, and thus more accessible, certain key points in the case. "Show the jury; don't just tell the jury" is still the operative principle.

Put this way, trial technology begins to soften the I'm-not-that-kind-of-lawyer lawyer. It's more of the same, just a bit dressed up. The softening continues when these lawyers realize that, used properly, the technology is not in control, the lawyer still is.

Litigation Spotlight: Overcoming Trial TechnophobiaThe experience we have had at Franklin Pierce Law Center in training law students and lawyers in techno-advocacy skills suggests that most lawyers' sense of the demands that the technology will place on them is exaggerated. When technophobic lawyers appreciate that they are learning an advocacy skill, not jjust trying to absorb a body of incomprehensible knowledge into their brain, they begin to place the technology in a more manageable perspective.

When they appreciate that the complexities of the trial technology can either be mastered with practice or can be managed by an associate or paralegal, trial lawyers begin to sense that this may just be another valuable tool that they can use.

It is at this point that the critical epiphany most often occurs. Whether you are creating a presentation slide with trial technology; developing a computer simulation; or writing on a courtroom easel with magic marker; you are engaged in the same enterprise: persuasive simplicity in front of the jury. You are still asking the same fundamental questions whether you are preparing poster boards or PowerPoint, "What is my point here?" "How can I make this clearer to the jury?" Techno-advocacy is still advocacy, not some new, unattainable higher state of being.

Juries respond. They get it too. Preliminary conversations with judges and jurors suggest that jurors find that the use of trial technology simplifies the evidence and, in their minds at least, quickens evidence presentation, particularly in complex cases. Interestingly, jurors appear to be displeased when only one side of the case uses the technology -- and it is counsel who has chosen not to use the technology who displeases them.

There will always be technophobic trial lawyers. The "I'm not that kind of lawyer" reaction connects too easily with the deeply rooted insecurities and risk-averse instincts that travel with most trial lawyers. But, for the majority of us, courtroom technology offers an improved set of tools to help us in the art of persuasion.

And like it or not, courtroom technology is increasingly part of the fabric of trial work. The federal court system has committed to equipping one third of its district courtrooms with trial technology by 2003. State court administrations that are building new courthouses are including courtroom technology in the blueprints.

Most famously, the government in the recent U.S. v Microsoft antitrust litigation took great advantage of its ability to retrieve instantly, for use on cross-examination, individual e-mails authored by Microsoft witnesses.

All because of the speed and organizational power of the courtroom technology in use.

Albert Scherr is associate dean and professor of law at Franklin Pierce Law Center, in Concord, N.H.

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