Courtroom technology: tools for persuasion.

To avoid boring jurors, trial lawyers must consider bringing sophisticated technology to court.

   When change is inevitable, you must spot it, embrace it, and find ways to
   make it work for you.

   --Bill Gates(1)

We live in an age of images and an era of electronic media. As a society, we no longer read newspapers, magazines, or books for in-depth information and discussion. Instead, we settle for cheap 30-second sound bites and glossy talk television--all in convenient, easy-to-swallow caplets.

Accordingly, jurors get their news, politics, entertainment, and history from "people paid to arrange and rearrange the truth in its most ... convenient pose."(2) In the world outside the courtroom, jurors' ideas are being guided by talk-show hosts, captained by legal and political pundits, inspired by movie-of-the-week actors, and educated by public relations experts.(3)

The challenge for a litigator in the 21st century, then, is to avoid boring the jury(4) while continuing to clarify the major themes of his or her argument and present potentially complicated evidence. To meet this challenge, lawyers have begun bringing technology into the courtroom.(5)

The tools of the legal technology trade are expansive. Everything from simple computer graphic software to virtual reality tours is either on the market or in the works. In the courtroom, these technologies have benefits; they are beneficial where a fact situation is difficult to visualize or impossible to physically reproduce for the jury.(6)

The potential impact of computer-generated evidence is amplified in light of jury research and surveys that indicate "humans are essentially visual learners, and visual displays have a greater ... impact on juries than purely verbal presentations."(7)

As the media age creeps its way into the courtroom, however, lawyers should expect a number of obstacles and complications associated with the use of technology in the courtroom. First, and most obvious, is the issue of admissibility of computer-generated animations, video simulations, and computer reenactments.(8) A prudent lawyer would be wise to examine the issues of relevance, authentication and identification, substantive admissibility, and expert witness testimony in relation to computer-generated evidence, as the rules and laws in this arena are still being written.(9)

Second, the possibilities for virtual evidence pose several intriguing questions that arise from basic concerns for fairness, cost, and accessibility.(10)

Third, lawyers must remain mindful that although legal technology products can be alluring, they should be used simply as tools in the implementation of a solution and not as the solution itself.(11) Technology is only a tool, and not a case strategy in the courtroom.(12)

The tools

Computer graphics, charts, diagrams, and illustrations

In light of the technological tools on the market, computer graphics are most accessible and affordable, and they are likely to provide the litigator with the most uses. Graphics software allows the litigator to create effective charts, graphs, and diagrams. In the courtroom, these can be presented either on traditional foam boards or projected from a notebook computer using the visual presenters that are discussed below.

Charts, graphs, diagrams, and illustrations are ideal for the advocate in simplifying statistical data, illustrating trends, or diagramming a complicated locale. Further, meshing visual aids with oral testimony or closing arguments will increase juror attention and recollection.

Using computer graphics to create in-house visual demonstrations also has the added benefit of flexibility. Computer-generated graphs and charts often can be modified quickly. This flexibility gives the litigator a cost-effective means of visually demonstrating alternative scenarios based on varying hypotheticals.

Presentation graphics software packages are available at computer stores at a relatively low cost. There are also hundreds of sites on the Internet that allow for the downloading of clip art and visual graphics.

Visual presenters

Visual presenters are electronic devices that combine a video camera with projection equipment. Marketers and manufacturers of these devices expect that the "old-fashioned way" of presenting exhibits to juries--for example, holding up pictures, passing documents to jurors, and using blowups on easels--will be a thing of the past. Instead, as "the witness testifies and examines a document, the ... exhibit is placed on the visual presenter and is projected to the jury."

The visual presenter allows a jury to "see the exhibit at the same time the witness sees it."(13) Further, if the exhibit is a photograph, a diagram, a document, or an illustration created from the computer graphics discussed above, the litigator can avoid expensive reproductions and blowups by simply projecting the document onto the video monitor.

Before visual presenters can be used, the court must approve their use and the courtroom must be appropriately wired. The advantages, however, may outweigh any wiring drawbacks. Some legal-technological experimenters agree that television camera systems that display photographs and documents significantly increase the speed and efficiency of evidence presentation.(14) Further, the jury is viewing some evidence more clearly and more closely than would otherwise have been possible, and television is a medium the jury is very much accustomed to.

Video conferencing 

The use of remote two-way television in first appearances and arraignments in criminal courts is increasingly common in many states.(15) Given the efficiencies of this technology, it is likely that television-based testimony will be increasingly used in courtrooms.

Because many jurors may find television-based live testimony particularly credible, "viewcasted" testimony may have special importance for expert testimony. The testimony of an expert testifying "live, via satellite" from across the country is not likely to raise an eyebrow. In fact, limited experimentation at The College of William and Mary School of Law "showed that jurors of all ages found live two-way remote testimony as good as (and no better than) in-court testimony."(16)

Nonsatellite "video conferencing" can provide high-quality court testimony at a coast-to-coast communications line cost of about $36 per hour.(17) The convenience and cost savings of video conferencing are substantial. Remote testimony from courthouse to courthouse may be routine in the very near future, if only because of the cost savings.

CD-ROM, laser disks, and bar codes

"Another significant development ... [likely to take off in the 21st century] is the use of CD-ROM, laser disks, and bar codes" in the courtroom. Use of CD-ROM and bar code technologies is extremely beneficial for cases in which a multitude of documents are expected to be presented to the jury.(18)

   Bar codes function just like they do in the grocery store.... Original
   exhibits ... are scanned onto laser disks or ... CD-ROM disks. Each exhibit
   is assigned a bar code, ... [which is] recorded on a separate index. When
   [the trial lawyer] need[s] the exhibit at trial, [he or she] merely scan[s]
   the index with the bar code reader, and the system retrieves the exhibit
   and projects it onto the video screen.(19)

CD-ROM and bar code technologies allow a trial lawyer to instantly locate and display his or her exhibits to the jury. During the trial, an individual exhibit can be quickly retrieved, shown to the jury, and replayed at any time.

Use of CD-ROM and bar code technologies may not be beneficial for cases with only a few documents, but with cases in which lawyers have trouble keeping up with all the exhibits, they might prove to be advantageous. Users of this type of technology have reported that "it has [been] met with substantial judicial approval. Judges have reported that trials [using such technologies] have moved more quickly and efficiently than trials with traditional evidence presentation."(20)

Computer-generated animation, 3-D simulations, and reenactments

Computer-generated "footage" can serve as a powerful demonstrative aid. It can allow a jury to view the invisible wind vortex that tossed a plane into a tailspin minutes before it crashed(21) or "experience" the terrain over which the plaintiff drove her motorcycle from her perspective.(22) Computer-generated footage can take jurors back to the scene of a crime or re-create the events leading up to an accident.(23)

Computer-generated animation consists of a two-dimensional, animated image projected either on a computer screen or a video monitor. There are two principal categories of computer animation: demonstrative animations used as visual aids or enhancements and scientific animations.

Scientific animation is significantly different from demonstrative animation. Scientific animation is more mathematically accurate. The motion in scientific animations more closely follows the laws of physics.(24) Accordingly, it can be costly to show the animation's validity so it will be admitted at trial.

Juries are greatly influenced by animation. In fact, "jurors respond almost uniformly in favor of computer animation in the courtroom."(25) For these reasons, however, some judges have refused to allow video animation in the courtroom.(26) Despite increased use of computer animation in the media, judges tread carefully "as there is not yet a highly developed body of case law involving the admissibility of computer-animated evidence.(27)

Also, computer animation is currently cost prohibitive. Until technological improvements make it more affordable, sophisticated computer animation is more likely to be used as a tool of prosperous defendants or by government prosecutors with novel or high-profile cases.(28)

Virtual reality

Virtual reality technology has yet to be tested in the courtroom. Virtual reality would allow fact finders to seem to float above a completely unaltered rendering of an accident scene.(29)

Computer modelers use photographs, drawings, and diagrams to simulate the accident scene in a vivid, realistic, and highly persuasive manner. Virtual reality has the potential to almost literally place the jury in another place. Various forms are available. Virtual reality, in its complete form, includes three-dimensional motion pictures or computer-generated images projected through special goggles; stereo sound; and a special body suit that permits jurors to feel heat, cold, and pressure.(30)

Although no one is suggesting that the use of such a complete version of virtual reality is likely to be permitted by a court any time in the near future, it is likely that lawyers will eventually attempt to make use of some mix of the components. However, the evidentiary rules regarding the admissibility of virtual reality evidence are yet to be written, and the arguments in favor of it are already being formulated.(31)

The benefits

The powerful impact of computer graphics and animation on juries is certain. "[V]isual materials can often successfully convey ideas and facts in a far more comprehensible and persuasive fashion than mere testimony or text." A wise trial lawyer is always mindful of the fact that "although jurors only retain 15 percent of what they hear alone, they retain 85 percent of what they both hear and see."(32)

Lawyers will use technology-based visual demonstrations for the same reasons they have used models, photographs, and foam-board blowups. Jurors respond almost uniformly in favor of computer-generated techniques in the courtroom. Because jurors are exposed to computer animation in video games and on television, they are accustomed to receiving information through this medium. In fact, studies show "that jurors focus primarily on the visual evidence used during trial."(33)

The proficient trial lawyer has always known that the average person's ability to assimilate new and complex information is limited. Accordingly, demonstrative evidence that invokes visual attention is an invaluable tool in helping the jury comprehend difficult concepts and complex facts.(34) With the technological advancements available today, lawyers have the tools to clarify potentially confusing concepts and to liven up subject matter that has a high potential to bore jurors. After all, "jurors ... expect trials and trial lawyers to entertain and inform at least as well as television does."(35)

Words of caution

Admissibility

As indicated above, the rules as to the admissibility of computer-generated evidence are still being written. An astute lawyer would be wise to consider the likelihood of admissibility before spending thousands of dollars on computer-generated animations, video simulations, or computer reenactments.

The issues relating to relevance, authentication and identification, substantive admissibility, and expert witness testimony should be carefully thought out before relying on a piece of demonstrative material. Some courts have been known to decline video animation "because of the possible prejudicial impact,"(36) while other courts will allow it only after a determination that the technology and those who supply the data have "performed their functions with utmost accuracy."(37)

Fairness, cost, and accessibility

Any increased reliance on computer technology in the courtroom raises concerns about whether the persuasiveness of the technology will have the effect of making the jury system less reliable.

Further, some may question whether the high cost of some courtroom technology makes the judicial system less accessible to certain segments of the population. However, as litigators become more adept at using their desktop computers for presentation and as multimedia software becomes increasingly accessible and cost effective, the problem of fair access to legal technology tools should decline.(38)

A tool, not a solution

Although these new technologies add new and powerful evidentiary tools for use at trial, the marvel and novelty of it all should not ever become a diversion to trial lawyers. They must recognize that technological appliances "are only tools to implement a solution and not solutions themselves."(39)

The implementation of technology must include careful planning--a weaving of visual evidence with an already prepared trial strategy. To avoid technological pitfalls in the courtroom, trial lawyers, as usual, must develop themes or messages and strategies. Only after the trial strategy is developed should they ask the following questions.

* Is this a document-intensive case?

* What effective video, photographs, plans, or drawings are already available that could help jurors understand the plaintiff's case?

* What multimedia tool would best present deposition testimony to the jury?

* What critical points will we need to convince the jury of in opening, case in chief, and closing argument?

* What visual support will each of our witnesses need for their testimony to be effective?(40)

Once these questions have been answered, a separate visual strategy can be designed to best support the trial team's general trial strategy. The strategist should consider each of the technological tools listed above and should be mindful that some media lend themselves better to certain exhibits. The strategist should also remember the caveat that "it's the message, not the medium, that wins at trial."(41)

Although the technology is enticing, a trial team should not go too far. Just because we live in a television generation does not mean that putting all the visual evidence on a television monitor will be effective.

Note, for example, that monitors have fixed relationships between horizontal and vertical, and, therefore, certain images, documents, or pictures will never fit on a screen or will appear distorted.(42)

Finally, the trial lawyer must be certain that he or she is comfortable with the strategy and the technological tools to be used in the courtroom. An expensive yet ill-planned use of technology may result in losses at trial.

The era of electronic media has created a society that demands visuals. To avoid boring technologically sophisticated jurors, trial lawyers will continue to bring technology into the courtroom.

Computer-generated evidence conveys ideas and facts far more comprehensively and persuasively than mere testimony or text alone. In fact, jurors respond almost uniformly in favor of computer-generated techniques in the courtroom. Caution, however, is always advisable. A prudent lawyer would be wise to plan and then proceed carefully before using any of these tools at trial.

Notes

(1.) Success Lies in Thinking Long Term (interviewed July 18, 1995), quoted in Richard R. Orsinger, Technology and the Courtroom (visited Feb. 3, 1999) http://www.txdirect.net/users/rrichard/ technol.htm.

(2.) Lewis H. Lapham, Hide-and-Go-Seek, HARPER'S, Nov. 1, 1998, at 11.

(3.) Id.

(4.) See J. VanCollins, Strategy and Tactics for Cross-Examining the Technical Expert, C961 ALIABA 55, 63 (Sept. 29, 1994); see also Craig D. Ball, Demonstrative Evidence: How 'Ya Gonna Keep 'Em Down on the Farm (After They've Seen TV?), in Twenty-First Annual Advanced Civil Trial Course (State Bar of Texas seminar paper 1998).

(5.) See Mark Curriden, The Courtroom of the Future Is Here, A.B.A.J., Jan. 1995, at 22; see also John F. Clark, A Change in Practice (Mar. 1998 feature) http://kybiz.com/lanereport/issues/march98/feature-legal.html.

(6.) See VanCollins, supra note 4.

(7.) Id.

(8.) See generally id.; Richard C. Jennings, Evidence Survey, 72 DENV. U. L. REV. 703, 716 (1995); John Selbak, Digital Litigation: The Prejudicial Effects of Computer-Generated Animation in the Courtroom, 9 HIGH TECH. L. J. 337, 360 (1994).

(9.) See VanCollins, supra note 4; see also Advanced Solutions, LLC, 3-Dimensional Computer Animation in the Courtroom: Introduction (visited Feb. 3, 1999) http://www.halcyon.com/asllc/cle_anil. html.

(10.) See Deborah Young, The Impact of Science and Technology on the Courts, 43 EMORY L.J. 853, 864 (1994).

(11.) See Michael E. Cobo, Technology Is a Tool, Not a Case Strategy in the Courtroom, 523 PLI/LIT 205,205 (1995).12. Id.

(13.) Carole D. Bos, Presenting Evidence with Courtroom Technology (visited Feb. 3, 1999) http:// www.bosglazier.com/courttech.htm.

(14.) See Fredric I. Lederer, Courtroom Technology from the Judges' Perspective (visited Feb. 3, 1999) http://www.courtroom21.net/judicial.html.

(15.) See Fredric I. Lederer, An Introduction to Technologically Augmented Litigation (visited Feb. 3, 1999) http://www.courtroom21.net/auglit.html.

(16.) Id.

(17.) Id.

(18.) See Bos, supra note 13.

(19.) Id.

(20.) See Lederer, supra note 15.

(21.) See Selbak, supra note 8, at 338.

(22.) See Jeffrey A. Dunn, Virtual Reality Evidence (visited Feb. 3, 1999) http://www.venable.com/ articles/labor/fulldunn.htm (citing a California Superior Court case where the motorcycle manufacturer offered the video into evidence as proof of the treacherous nature of the terrain).

(23.) See Advanced Solutions, LLC, supra note 9.

(24.) See Selbak, supra note 8, at 340.

(25.) Id. at 359-60.

(26.) See Jennings, supra note 8.

(27.) See Advanced Solutions, LLC, supra note 9.

(28.) See Jones Telecommunications & Multimedia Encyclopedia, Cyber Sleuthing (visited Feb. 3, 1999) http://www.digitalcentury.com/encyclo/ update/sleuth.html.

(29.) Id.

(30.) See Dunn, supra note 22.

(31.) Id.

(32.) See Lederer, supra note 15.

(33.) See Selbak, supra note 8, at 360.

(34.) See James S. Schutz, The Expert Witness and Jury Comprehension: An Expert's Perspective, 7 CORNELL J.L. & PUB. POL'Y 107, 109 (1997).

(35.) See VanCollins, supra note 4, at 63.

(36.) See Jennings, supra note 8, at 716.

(37.) Id.

(38.) See Henry H. Jr., Changing Litigation with Science and Technology: Video Depositions, Transcripts and Trials, 43 EMORY L.J. 1071, 1088 (1994).

(39.) See Cobo, supra note 11, at 205.

(40.) Id. at 208.

(41.) Id. at 210.

(42.) Id.

Frank Herrera Jr. practices in San Antonio, Texas. Sonia M. Rodriguez is a student at St. Mary's University School of Law in San Antonio, Texas.3