Google "technology in the courtroom" and you will
get 15 million hits on topics such as
iPads,
animation, LCD projectors and touch screen telestrators. You will also find details on
skyping in witnesses for testimony
or using 3D printers to create demonstratives. These hits are all in response to the "technological tidal wave" crashing
onto the legal system. They reflect the collective need of attorneys and judges to anticipate, adapt, and accept the latest
gadgets, and employ them effectively, efficiently, and ethically. . . without drowning in apps, cords, and associated lingo.
As noted recently in my article on essential apps,, attorneys are not the only ones in the courtroom with a need to be tech savvy – experts should be too. Not simply because it is the latest fad, but because well-presented data in concert with engaging testimony are part of effective expert witnessing. If technology can enhance that connection with the jury and make one a more effective expert, then it makes sense to embrace those tech tools.
Why use technology at trial?
There has already been quite a bit written on the psychology of juries and the role of technology in elucidating the nuances of a case, in cutting through snap judgments, and in keeping jurors engaged. A 2011 article by Dr. Ann Greely, a jury consultant with Decision Quest, covered this topic if you want more in depth information. One of the core and often repeated points is that not only do jurors increasingly use technology in their own lives, but they expect a certain level of entertainment from such technology, and as such, come to expect it in the courtroom as well.
The minimum age limit to serve on a jury is 18. Therefore, it is important to know that millennials ("digital natives" as the Pew Research Center has referred to that generation) and generation Z (born ~1995 to today) are simply conditioned to learning through technology. YouTube videos, TED talks, and websites like Coursera, Udemy, and EdX all offer online learning opportunities covering a broad range of topics, ranging from educational to just plain fun. In addition, collegiate courses at many universities frequently feature professors who have traded chalk boards for tablets, or have created video-taped lectures to provide learning outside the classroom. Furthermore, online course enrollment continues to climb.
In response, U.S. courts have started to integrate technology into the courtroom too. For example, the Jefferson Circuit Court of Kentucky upgraded to independent multiscreen displays, citing "recent university studies have shown that students' test scores improve by 14 – 15%, or one letter grade, when the course is taught with two or three different, simultaneous presentations compared with single screen content," (Michael, 2013).
Ultimately graphics and visual presentations help to engage the jury while conveying complex case details, rendering them into digestible and memorable pieces of information. Animation, diagrams, and digitally marked up and highlighted documents can help illustrate the who, what, why and how. Recently a professional meteorologist specializing in forecasting and forensics, shared:
"There seemed to be a positive response to my use of modern technology vs. the opposing side's expert who was mired in pages of hand-written notes and grainy photocopies of radar and satellite imagery. I had nice crisp presentation-quality graphics. I noticed the judge and jury seemed less sleepy and more engaged during my testimony than during the opposing [expert's].
My attorney was also impressed because after going through my data and findings and comparing with the opposing meteorologist, she saw that I produced much more and better quality work for about half the billable time."
It is clear that technology can make a significant difference when employed effectively. As you consider bringing tech into your practice there are some questions you should ask yourself:
- Will it improve my work product?
- Will it cut costs in the long run?
- Will it make me more effective at trial?
- Simplify concepts?
- Engage the jury?
- Streamline testimony?
- Convey my "theme" or "narrative" better?
- Enhance my credibility?
Tips on using technology at trial
Having answered yes to the above questions, there are basic things to keep in mind for using tech at trial. Thanks to others writing and blogging on this topic, there are some excellent articles and posts already out there, mostly written by attorneys (for example, see Tad Thomas' "Effective Use of Technology in the Courtroom" or Peter Ausili's "Federal Practice: Using Technology at Trial").
Some of their insights as well as some of our own are compiled below into 5 tips for experts:
1. Know the Courtroom Rules
Technology may be rapidly evolving but that doesn't mean all courts are keeping pace. Certain judges may be tech savvy, while others are not. Different jurisdictions and even judges may have radically distinct rules regarding whether the use of iPads and other technology is permissible. Find out from the attorney before heading down the tech path. The attorney is not going to pay for your time invested in creating visuals that are not permitted in the courtroom.
2. Coordinate with the Attorney
First and foremost: They don't need surprises, and neither do you! You will want to have ongoing discussions about your direct examination well in advance of your day to take the stand, regardless of whether you're using an abacus or an iPad. You and the attorney (or team of attorneys) will want to work together on direct examination, which includes how and when you plan to use demonstratives. Your conversations with the attorney should also include whether they hired a trial consultant or graphic designer, as well as the level of visualization they're interested in at different stages. Of course if you believe "X" technology will make your testimony more effective, you should make sure the attorney knows this - as it is your job to advocate for the best presentation of your testimony. Both sides typically exchange demonstratives in advance of trial. If you are creating your own, don't wait until the last minute, or you may not be permitted to use them in the courtroom.
3. Be Prepared
Be well acquainted with your technology. Effective experts have always followed the "practice, practice, practice" rule, whether for deposition preparation, direct examination or cross-examination. Using technology is no different: be prepared for hiccups and know the tools you're using well. Don't try them out the morning before trial only to discover your software does not integrate with your hardware. It is important to always have a contingency plan. Be able to testify without the tech (i.e. have hardcopies), or come with duplicates (e.g. two iPads that are equipped with the same apps and information synced from the cloud). The article by Tad Thomas and a case study by Attorney Helen Geib highlight a different angle: courts aren't always prepared for technology, and even if they are, it may not be used often. It is good to get a handle on what will be available before you walk in for trial and it is always good to have extra equipment on hand (e.g. HDMI cables, HDMI converters for your Mac, etc.)
4. Don't Use Technology as a Crutch
Don't let the technology that is intended to simplify, complicate. As Philip Sechler, attorney and professor from practice at Penn State Law observed in a recent article on his mock trial classes: "I've seen lawyers rely so much on technology they forget what it means to just be an effective, credible advocate for their client." The same goes for experts. Don't rely so much on the sleekness of your visuals that it affects your credibility, or detracts from your opinions and the concepts you want to convey.
5. Be Aware of Security Issues
This seems pretty straightforward – obviously have password protections and security measures in place for your technology. But it also comes down to being a knowledgeable user, and knowing how confidentiality and sensitive data fits in with your use of the tech. For example see the potential problems associated with Google Translate by Above the Law. And of course, make sure you know your login information to your devices and files before you enter the courtroom.
Ultimately during trial, effective expert testimony is really all about connecting with the jury. Will your use of technology make your testimony clearer, simpler, and more engaging? Will it make you a better teacher? If the answer is yes, then embrace it! Just remember the five tips when considering its use.
What are your thoughts and/or advice on expert witnesses using technology in the courtroom? <Comment>
