Daryl M. Williams 0000-00-00 00:00:00
The legal profession moved from typewriters to word processors in the late 70s and early 80s. Computerized research soon followed. It was not long before all secretaries had a computer at their work station, and lawyers started having computers at their desk. Courts have, likewise, made the transition from the 19th Century into facilities complete with computer hookups and monitors for juries and judges. Such courtrooms allow presentations that could not even be imagined as late as the 1970s, and lawyers can provision unequipped courtrooms to get this advantage; it just takes a computer, a screen, and a projector. Many lawyers, however, have not kept up with the tools available for case preparation, deposition practice, and courtroom presentation. Presentation at trial is the easiest part of technology to understand. Juries used to be accustomed to documents, actually reading them, and had an attention span so they could track what was happening. Not so today. Juries are accustomed to texting, emailing, Googling, and flashy presentations. The internet and media have made sound bytes, charts, photos, and document pop-outs critical. Electronic presentations from one side of the courtroom while the other side does it the old way gives the one side a huge advantage. I have started a number of trials with the other side shuffling paper that ended with them converted to the computer and playing catchup. There may have been a day when a lawyer had to present his case with twenty documents or less because, of course, the jury could not handle more than that in a courtroom. In today’s world, however, the jury can see the document while the witness is on the stand. Parts can be highlighted, boxed, blown up, and popped out so the jury can get the full effect of the document as the witness is talking. That means that a sentence or two from a document can be used in today’s courtroom when it could not under the twenty-exhibits-or-less approach. Trial lawyers who do not give the jury an opportunity to look at documents during a witness’s testimony are not doing what they should. Just talking is never as interesting as talking and looking. More importantly, trial is not the same game it was when jurors would read the exhibits in the jury room. State court juries talk about the case all along, so the lawyer better be showing them documents all along. The day of jury notebooks, exhibits published to the juryand the jury that does not actually see the exhibit until they retired for deliberations are gone. Interest and attention is riveted by the presentation. Core-board exhibits— blow-ups—can still be better than an electronic projection, of course, but blow-ups cannot do what the computer does. Most lawyers are converted to the importance of having videotaped depositions. Everyone should know that sixty to seventy percent of communication is non-verbal. The computer enables the trial lawyer to present the sixty percent of the deposition testimony the jury would otherwise miss. Coupling the video with electronic images is perfect. The jury can then see the document about which the witness is testifying when the video is played at trial. Why would a lawyer do it any other way? Video depositions are far more important in Arizona state court than federal court. Arizona allows a witness’s deposition testimony to be presented for any reason irrespective of witness availability. It is not just impeachment any more. Deposition testimony, therefore, needs to be just like testimony in the courtroom, without the delays incident to a court reporter stopping to mark an exhibit or the lawyer fumbling through stacks of documents or tabbed notebooks. Besides, there are problems when a deposition exhibit number is different than the trial exhibit number so that the witness’s testimony is in reference to an exhibit number that is not the same as the trial exhibit number. Use the bates number on the document for all purposes so there is never any confusion when that testimony is presented at trial. The trial exhibit number can be put on the bates-labeled electronic image, so the jury knows the document used in the deposition is the one marked for trial. Preparation of a case is much easier if the lawyers use computer images and the bates numbers to identify documents during trial preparation. Accessibility of the document is a non- issue. It is instantly available and eliminates needs for piles of paper or multiple notebooks full of hard copies of things that simply take up space, increase copying costs, introduce the possibility of misplaced documents, and are inaccessible—like going to the library to look at a reporter rather than using Lexis or Westlaw. Want to see the document in the courtroom? Scan the bar-coded bates number with a bar code reader or just type it in on the fly. Trial exhibits lists with the bar codes by the exhibit numbers is like magic. Technology can be cumbersome if the lawyer is not familiar with the program and how to use it. Lawyers will have a rockier presentation if they are reliant upon a paralegal to find the right page of a particular document and then blow up or highlight the part the lawyer wants the jury to see. The lawyer will know the programs and how they work if they are used for all their pretrial work. It is too late when the jury is in the box. I suppose none of this will be an issue in another twenty years or so when all of the lawyers then practicing will have grown up with a computer, know how to use it, and will consider hard copy files and stacks of papers or binders of documents something like a horse and buggy. They will not be able to understand why anyone still used them when cars—computers—became ubiquitous.
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