Technology On Trial

Retrying a Case with New Technology

By David Horrigan

Steptoe's Stephen Fennell and Kenneth Marchese. Photos by Monica Bay.

AFTER U.S. District Judge George Revercomb of the District of Columbia discovered he had terminal cancer, his hospital room became his chambers. Revercomb was determined to finish one of the most complicated cases in his career on the bench. He very nearly succeeded. On July 30, 1993, the day before he died, Revercomb completed his 251-page opinion in Mergentime Corp. v. Washington Area Metro. Transit Auth., No. 89-1055 (D.D.C. filed Apr. 14, 1989).

Green Line Case

The litigation involves a contract dispute between the Washington Metropolitan Area Transit Authority (WMATA) and two corporations who were joint venture partners on the construction of the "Green Line" of Washington, D.C.'s MetroRail subway system. At question is who was responsible for delays and cost overruns during the building of two subway stations.

Technology in Courtroom 9 includes juror monitors, an ELMO multimedia projector, and even low-tech foam boards for exhibit blow-ups.

Plaintiffs Mergentime Corp. and Perini Corp., who were fired from the job, argue that delays were caused by WMATA's actions and that the transit authority failed to compensate them for additional costs they incurred. Defendant WMATA argues that the plaintiffs failed to meet completion timetables.

Legal Tech on the Green Line A stop on the D.C. Metro's Green Line. Plaintiffs Perini Corp. & Mergentine Corp. Counsel: (Perini): Steptoe & Johnson L.L.P.: Stephen Fennell, Douglas Hilleboe, Stephen Bullock; (Mergentime): King & King, Peter Kutil Technology Coordinator: Kenneth Marchese, Steptoe & Johnson Key Technology: Hardware: • Compaq EN Deskpro computer • IBM T21 laptop • ELMO EV500 AF • MAXTOR FWRA08OLEO011 80 GB removable 1394 firewire hard drive • Ricoh 450S scanner • Gateway 2000 monitors Software: • Windows 2000 • LiveNote • Sanction II trial presentation software • CaseMap (DecisionQuest) • iCONECT Server • Concordance 7.2 (For PDFs) • Summation 5.2 (TIFF images of exhibits and transcripts from current and past trials • PC Docs OPEN 3.9 Defendant Washington Metropolitan Transit Authority Counsel: Crowell & Moring L.L.P.: W. Stansfield Johnson, George Ruttinger, Sarah Lindsey, and Elizabeth Newsom Technology Coordinator: Litigation Communications Inc. Peter Phaneuf and Paul Hugo Key Technology: Hardware: • Two custom-built desktop computers (Pentium III, 100 GHz, 250 RAM), One stays in courtroom, one in war room • Dell Latitude L400 laptop (Ruttinger) • Fujitsu 3097 scanner (heavy duty) • Visioneer Strobe Pro (portable) scanner • Viewsonic 15-inch flat panel monitors • LaCie 10 GB external firewire drive Software: • Windows 2000 • Sanction 1.7 trial presentation software • Extranet on LCI Web site • Concordance *Insurance Co. of North America was represented by Winston & Strawn's Eric Marcotte.

In his voluminous opinion (See 1993 U.S. Dist. LEXIS 11123), Judge Revercomb addressed the bulk of the dispute, finding for WMATA on most issues. However, a few questions remained unresolved. Revercomb acknowledged that he was unable to make all the necessary findings.

"Prudence requires issuing what the Court has accomplished so far," he wrote. "Should circumstances permit, the Court will issue full findings of fact . . . at a later date." Unfortunately, his death precluded that option.

Back to the Future

The original 45-day trial started in Oct. 1991. Ironically, the final resolution of the dispute would face even more delays, and the death of a second judge. Now, a full 10 years after the case initially was tried, the Green Line case is back in Washington, D.C.'s E. Barrett Prettyman United States Court House, in its "electronic" Courtroom 9, before Chief Judge Thomas Hogan. (If the courthouse sounds familiar, it's because it was the venue for the Monica Lewinsky imbroglio and the Microsoft Corp. antitrust litigation.)

George Ruttinger

This round, the facts and most of the faces may be the same, but the courtoom is decidedly different. The Green Line trial illustrates just how dramatically technological change has affected litigation. Back in court: Lead attorneys W. Stansfield Johnson and George Ruttinger of Crowell & Moring L.L.P. representing WMATA; Stephen Fennell of Steptoe & Johnson L.L.P., representing Perini. (Mergentime now is represented by Peter Kutil of King & King; Eric Marcotte of Winston & Strawn represents the Insurance Company of North America.)

Front Row Seat

Jonathan Cramer is the courtroom technology administrator for the U.S. District Court inWashington, D.C. He's been with the court for 15 years and has had a front row seat for the technological changes at the court, including the development of Courtroom 9. Three of the building's courtrooms have been transformed into tech-friendly facilities under his direction; more conversions are in the works, he says.

Courtroom 9 is typical. Walking in, the first thing a visitor notices is video monitors of all types: big, small, flat, fat -- on walls, desks, tables, and in the jury box. The jurors' sleek flat-screens look as though they belong on a state-of-the-art Boeing 777: Just like airborne video sets, they fold neatly into slim vertical compartments adjacent to comfortable seats. Each screen is shared by two jurors.

This kind of technology requires cables, wires and other potential tortfeasors. This problem was resolved by creating a raised floor for the front of the courtroom, preventing the room from becoming a coaxial obstacle course.

The video screens are used to display the exhibits and paperwork of the trial. All documents were scanned by the parties (outsourced to CliCKS, a local D.C. document management company.). The parties each keep a separate set of the images, and can bring them up to the video monitors with a click of a button.

When an exhibit is oversized or difficult to scan, the lawyers and the technology consultants have another option: they can use the court's ELMO EV500 AF "visual presenter" unit -- a souped-up overhead projector that also is hooked into the video display system.

Court reporter Scott Wallace.

Even court reporting is different in Courtroom 9. The days of simply typing into an aging stenographer's machine on paper tape are over. Now, Scott Wallace's Compaq Presario laptop is linked to his steno machine.

He runs LiveNote for real-time transcripts, and just to be safe, also uses an audiotape backup.

Better Crutch

The lawyers depend on their tech teams to keep the courtroom information flowing smoothly. In this case, Fennell is assisted by Kenneth Marchese, Steptoe's litigation support manager, from the firm's 30-person information systems and technology department.

Not surprisingly, Marchese is a big advocate of technology in the courtroom. He argues that technology should be used for a case of any size. "If it's big enough to litigate, it's big enough to use technology," says Marchese.

The new technology also can solve unanticipated problems. During the first Green Line trial, Fennell had a problem from a different court -- he had a basketball injury. As he argued his case on crutches, one of his associates had to hold bulky black binders so he could read from them. The cumbersome, almost comical process continued as the associate balanced the binders for the temporarily crippled counselor.

Today, his athletic misfortune would not be much of an issue, observes Fennell. He simply requests an exhibit, Marchese punches a few buttons, and the images pop onto video monitors throughout the courtroom.

The technology also helps momentum, says Fennell. The trial does not have to screech to a virtual halt as jurors pass an exhibit among themselves. Rather than fumbling with pieces of paper, the jurors simply look at their video monitors.

Deputy Clerk Jacqueline Francis and courtroom technology administrator Jonathan Cramer.

Courtroom 9, with its emphasis on video tools, is well-suited for jurors reared on television, says Fennell. "Psychologists tell us that we remember 80 percent of what we see and 20 percent of what we hear," he says.

Deputy Clerk Jaqueline Francis says the automation also dramatically speeds the case along, eliminating the time usually spent searching through bankers' boxes looking for documents.

No More Fumbles

Crowell & Moring's George Ruttinger also appreciates the advantages of Courtroom 9. He is assisted by the firm's technology consultants, Peter Phaneuf and Paul Hugo of Litigation Communications, Inc.

Crowell & Moring consultants Peter Phaneuf and Paul Hugo.

During the first Green Line trial, "Everybody, including the judge, had to fumble to find the right volume, tab number, and page for each document upon which questioning was predicated," recalls Ruttinger. Today, "I myself have all 4,000 exhibits and the testimony from the prior, 45-day trial loaded on a 20 GB external drive hooked up to my ultra-light-weight laptop," says Ruttinger.

"At trial, in the office, and at home, I can call up any exhibit without fumbling for hard copies, go directly to the page in question, and construct a presentation with the documents I want to use on cross or direct examination."

David Horrigan is contributing editor of The National Law Journal and Law Technology News, and is the editor of American Lawyer Media Inc.'s ABC News Trial Bulletin.