TECH-SAVVY COURTROOM STRATEGIES
May 31, 2005
Rarely does a high-stakes legal case unfold in a courtroom today without
the extensive use of computers and audiovisual technology, a factor that
can give the savvier side a valuable edge. Most Alabama lawyers agree
that earning the jury's trust is still paramount, but they readily
admit that appealing to a jury through as many senses as possible can
make a lasting impression that's not easily forgotten during deliberations.
By Eric Fleischauer
Business Alabama - http://businessalabama.net/default.asp?id=1026
"This case," the paper-shuffling lawyer proclaims to you, a juror, "hinges on the testimony of Dalton Ames. As you recall, Mr. Ames testified that ..."
Then the lawyer stares at his podium. Sorts more papers. Reads words, lots of them. And you wonder,Have I heard these words before? Is the lawyer trying to trick me? Did I remember to pay the mortgage Thursday? What was that lawyer saying?
Alabama lawyers hear this internal dialogue, sometimes accompanied by snores, at every complex trial. How do they help the jurors understand? How do they keep the jurors awake?
The answer to the latter question was, "Not easily," at least for the first 225 years of American jurisprudence. In Alabama and elsewhere, technology is changing all that. Courtrooms are a product of another age. Judges' robes, gavels, dusty law books and evidentiary rules feed from an umbilicus connected to a pre-colonial, Britannic jurisprudence.
Tradition is quaint, but more and more law firms in the state realize that litigation-support technology is what brings home the bacon.
Most litigators do it the old-fashioned way, their only nod to technological advances an aluminum-alloy dolly to cart hundreds of pounds of paper up narrow steps to fourth-floor courtrooms. The new school dispenses with dollies, aluminum or otherwise. With a laptop computer cradled in their arms, they squeeze past their sweating opponents and spryly take the incline two steps at a time.
In a recent Decatur trial, it was Gary Huckaby and Gregory Revera, both with Bradley Arant Rose & White LLP, that beat their paper-burdened opponents not just to the courtroom, but to a verdict as well. The case pitted Huntsville Utilities against Indianapolis-based ProLiance Energy Co. Not many expected HU to win the case. Other utilities with the same gripes chose to sit it out. HU alleged that ProLiance had fraudulently induced the utility into signing an exclusive contract for natural gas. Long after HU filed the complaint, Huckaby and Revera were still trying to support their client's core allegations. It was looking like a long slog.
Shortly before trial, ProLiance, for the first time, mentioned that it routinely records all phone calls to and from its Indianapolis headquarters. The admission was not especially dramatic because it was inconceivable that Huckaby and crew could find any needles of evidence buried in the haystack of 1.4 million digitally recorded conversations.
But Huckaby, with his tech-savvy associate Revera, did not flinch. For the next eight weeks, armed with a court order, Bradley Arant staffed a ProLiance conference room with one attorney and at least one staff member. After consulting with digital gurus, the firm had a plan. Taking advantage of the digital format, they were able to isolate those recorded calls most likely to be important. Their digital searches focused on those phones most likely to contain useable evidence, the date of the conversations and their length. From the massive archives, Bradley Arant lawyers and staff downloaded potentially relevant conversations to 1,200 compact discs. Back in their Huntsville office, they whittled that number down to 300 CDs.
They hit pay dirt. Long before ProLiance lawyers realized the importance of computerized audio files they had not reviewed, Huckaby's team had catalogued audio exhibits that would win the case. Huckaby's team played portions of 85 CDs to the jury. In one of many incriminating conversations played back to the jury, a ProLiance vice president says, "I think we're breaking promises left and right."
The audio was important, but Huckaby recognized the truth of what most tech-enthusiast lawyers preach: A juror's comprehension and retention of evidence increases dramatically when he can simultaneously absorb information through two senses.
With jurors' ears satisfied, Huckaby went for their eyes. He had all of the 85 audio CDs he planned to present to the jury transcribed. By linking the scrolling transcription text to the audio, jurors could both see and hear the compelling evidence. The end result was a jury verdict of $33.5 million - a result most deemed unattainable until the firm used technological advances in audio to find and present the exhibits.
Lawyers in the ProLiance case had to retrofit the unwired federal courtroom in Decatur. No such accommodations would have been required three doors down in a domain managed by tech-smart Judge Jack Caddell, a U.S. Bankruptcy judge for the Northern District of Alabama. His top-of-the-line courtroom is equipped with multiple flat-screen monitors, video conferencing equipment, multidirectional cameras, microphones that automatically adjust to speakers in different areas of the courtroom, feedback squelchers and real-time transcriptions at the judge's monitor.
Caddell says he loves the functionality. And lawyers love that they can participate in on-screen hearings with the judge from 50 miles away. Federal court administrators love the stats. Caddell processes more cases than any other bankruptcy judge in the district, and he does so with less time spent in open court. He credits technology for those numbers.
"I've always appreciated what computers can do. I couldn't fix one, but I know what they can do," Caddell says. "Times are changing. Now I'm hearing everyone saying, ‘Where has this been all my life?'"
Easy does it
Most lawyers and techies warn that overdoing technology can backfire, although they offer few such examples.
Joseph Rice, a psychologist who obtained his Ph.D. at The University of Alabama, chucked his practice to join another UA-educated psychologist in a litigation consulting firm in California. His specialty is evaluating the impact of technology on juries, expertise he put to good use in the O.J. Simpson trial. He is president of Jury Research Institute Inc.
"You have to be careful with some of your demonstratives so they don't get so cute that jurors wonder what you are leaving out," Rice says. His concern echoes that of many lawyers. Edwin Lamberth, an associate at Cunningham Bounds Yance Crowder and Brown in Mobile, is a student of litigation technology. His firm helped the state of Alabama win the highest punitive-damage verdict in state history against the Exxon Mobil Co., $11.8 billion, in November 2003.
"It is a delicate balance. You don't want the jury to think that you are all about smoke and mirrors, all about technology," Lamberth says. "The key to winning any case before a jury has always been, and still is, to establish your credibility. That said, the technology we used in the Exxon trial was absolutely invaluable."
Some believe the risk of over-dazzling a jury is shrinking as more people who grew up with audiovisual technology reach jury age.
Ralph Q. Summerford operates a litigation consulting firm in Birmingham. He says juries thrive on computerized exhibits.
"They love it. Nowadays we have all these people who have grown up with computers, playing games," Summerford says. "They'd much rather see that stuff than having to listen to a lawyer talk."
Bradley Ponder, a law student at The University of Alabama, wrote an article about the jury impact of high-tech displays for a soon-to-be-published edition of the school's law review. He sees visual technology becoming increasingly pervasive and effective in court rooms, but he says the best litigators - many of whom he interviewed and observed for his article - don't entirely forsake the tried and true methods. "Sometimes a pause to set up an easel, or a hard-copy image passed around in the jury box, can be powerful," Ponder says. "Jurors will tend to distrust a litigator who is too flashy. Moderation is imperative."
Lamberth says high-tech audiovisuals were pivotal in the Exxon case. One factual issue involved whether Exxon abused the expenses it claimed as deductions. Dozens of Exxon employees testified, and most of those employees had direct knowledge of only the one or two deductions within their control. "We literally used the video to go through each and every one of the deductions that they took," Lamberth says. "The list was so long and the deductions were so laughable that, by watching it on video, the jury really got a sense of how wrong Exxon's position was."
Richard Dorman, also of Cunningham Bounds, was one of the lead counsel in the Exxon case. He says juries deserve credit for understanding the difference between evidence and presentation. "A jury is never fooled by such technology," Dorman says, "but it helps them understand the case better and helps you make your points better."
The use of standard videotapes to present depositions to a jury is old hat. The technological advances utilized by Cunningham Bounds, however, signal a revolution in how lawyers educate - and persuade - jurors. In the recent past, a lawyer who wanted to give a jury 30-second clips from 20 different witnesses had two options. Play 20 videos in full and hope none of the jurors are hard of hearing, or subpoena all 20 witnesses and have them testify on all relevant subjects. Whichever method the lawyer employed, he would have to resort to reading from a transcript at the two most important points in the trial: opening statement and closing argument.
Compare that to the Exxon case. Because all the video was digital and linked to scrolling transcripts, lawyers could pick and choose the important clips. During opening arguments, the lawyer could play the 30-second video snippets from the 20 witnesses in rapid succession. Then, during closing, the lawyer could re-play the video montage. "It just has such greater impact to see graphics such as timelines and documents blown up than to be looking at a letter-sized document," Dorman says.
Another critical application of technology involves cross-examinations. In most trials, a lawyer must dig through his copy of the deposition trying to find an inconsistent statement. Once he finds it, he or the witness has to read it to the jury. Yet most litigators have horror stories of watching judge and jury alike slip from consciousness at the very moment of the big confession.
Not so with high-tech audiovisuals. The lawyer asks, "Isn't X true?" Witness responds, "No." Lawyer asks his assistant to play Clip No. 92 and the jury watches the same witness answer "Yes" to the same question, with text scrolling beneath the image. The same jurors whose eyes closed in the low-tech cross-examination now widen - and glare at the discredited witness.
"When the jurors actually see the witness on the screen in front of them saying exactly the opposite of what he just says," Lamberth says, "it's great." And, for the lawyer who embraced the power of technology, profitable.
As Rice describes it, technology permits lawyers to be "reactive and nimble" when confronted with unexpected testimony.
Another digital technique used to persuade jurors in complex cases is computerized timelines. Photos of key witnesses and thumbnail pictures of documentary exhibits appear at the appropriate point in the timeline. By clicking on those images, the lawyer starts a video clip or enlarges a document.
Summerford says he sets up timelines for insurance attorneys in arson cases. "We show a person's bank account at various points in the timeline," Summerford says. "We relate the fire to the insured's bank account, which by the time the structure is torched is usually below zero. The jurors can understand that. It's easy to see and easy to comprehend."
The perfect jury
Psychologist Rice, drawing from his many high-profile cases, says one of the most recent and transforming technological applications involves advanced Web sites. Lawyers regularly hire Rice to identify the ideal demographics for a jury, and the likely reaction by jurors to planned exhibits or testimony. Rice says the validity of his conclusions received a tremendous boost when he began using Web sites to present evidence to mock jurors.
The Web sites, on secure servers, can present video deposition testimony, photographs of exhibits and even sample statements by lawyers. Participants submit online evaluations of the various arguments and evidence. Armed with that information, lawyers can gear their presentation not to lawyers who have waded in the facts for years, but to a mock juror who is experiencing the case for the first time. "It gives us an idea not only of key, specific assessments - that is, what works and doesn't work on the presentation side - but also gives us some input from the audience side," Rice says. "What is the best jury for the case? They have an answer to that before they decide which jurors to strike."
Back to the jury box you go for the high-tech alternative to the sleepy closing argument. No paper shuffling. No stuffy lawyer reading from a deposition. No frustration as you try to remember who says what. With a few clicks, the lawyer walks you through the highlights of the trial.
The lawyer's bet is one that his colleagues increasingly share. Not only will you remember the testimony, you will understand it.
And more often than not, that means dollars.
Don't rely on courtroom computers
As the potential monetary value of a verdict increases, lawyers' willingness to risk high-tech malfunctions decreases. For big-dollar cases such as the State of Alabama vs. Exxon Mobil Co., lawyers are understandably leery of trying to run their expensive software on court hardware that may have glitches.
The solution? Bring your own hardware.
Mobile-based law firm Cunningham Bounds Yance Crowder and Brown LLC does just that. Included in its boxed, self-contained computer lab are:
- A CPU with an enormous hard drive, an ultra-fast processor and back-up drives
- A VCR (Plan B if everything else crashed)
- Switches for all peripherals that would accommodate multiple formats
- Multiple keyboards
- A standard computer monitor
- A half-dozen flat-screen monitors for all counsel tables, the judge's bench, the witness stand and the jury box.
- Extra inputs in case the judge required that Exxon lawyers be allowed to use the equipment, which he ultimately did
And last but not least: Not in the box but very near it, the law firm posts a paralegal with immense technological abilities.
Eric Fleischauer is a freelance contributor to Business Alabama. He lives in Decatur.