Times have changed. Twenty years ago, the bench and bar showed resistance to the incorporation of technology in the courtroom on various levels – fear of the unknown, disassociation with change, monetary inadequacies, and even antiquated rules of procedure and evidence stood in the way. Fast forward to today to discover the courts and practitioners alike endorsing and embracing technology. The novel question of “Do you use technology in the courtroom?” has evolved to “Why don’t you use technology in the courtroom?”
As of January 1, 2016, Illinois lawyers’ duty to serve with competence expressly includes remaining apprised of technological developments and resources under Rule 1.1. The Supreme Court of Illinois adopted an amendment to Comment 8 of Rule 1.1, which models the corresponding American Bar Association Rule, as follows:
Rule 1.1, Comment 8: To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject. (Emphasis added.)
The change to the duty of competence requires lawyers to keep current on more than just changes in the law. They must know the technology with enough understanding to weigh the pros and cons of its use. To date, over 20 states have joined Illinois in adopting this ethical duty of technology competence.
In the courtroom setting, laptops and paperless tools for demonstrative evidence have gradually become the standard and, at times, even required by judges. Here are five reasons you should use technology in the courtroom and develop best practices for your trial practice:
1. For Your Client
The power of the technology – especially the laptop, iPad or iPhone – has firmly staked its claim on almost every facet of our society. As a zealous advocate for your client, you owe it to your client “to protect and pursue [your] client’s legitimate interests, within the bounds of the law, while maintaining a professional, courteous and civil attitude toward all persons involved in the legal system.”
As our population as a whole has become increasingly computer literate and quite dependent on technology, your client will expect the presentation of your case evidence in the courtroom to be driven by electronic means and the tools of technology. Furthermore, whether a hearing before a judge or a trial before a jury, you need to prepare both your case and your tech, and do so before the client is present. For example, know how “wired” the courtroom is, how the audiovisual systems work, and even where the outlets are in the room. When your client and you walk in to focus all your energies and skills on her case, your technology setup should be practically turn-key ready.
2. For The Jury
As jurors become more sophisticated with technologies, so must the lawyers and their use of the courtroom. Trial attorneys must keep pace with the expectations of jurors who demand more visual imagery to compliment the verbal content of the fact-finding mission before them.
Demonstrative evidence has long proven to be a catalyst to a jury’s comprehension of the evidence presented. Blow-up charts, photos, and diagrams can spark the interest and attention of jury members. Attorneys can further immerse the jury in their side of the case and promote the retention of the evidence by using those same demonstrative tools with the technology of computer driven, dynamic presentations. See Caldwell, et al., Primacy, Recency, Ethos, and Pathos: Integrating Principles of Communication into the Direct Examination, Notre Dame Law Review, Vol. 76, No. 423, 2001.
3. For The Judge
Once judges embrace technology in the courtroom, they find it increases their abilities to efficiently run the proceedings, such as present, accept, and share evidence. For example, electronic displays and exhibit projectors can allow the bench to quickly and easily view an exhibit for consideration of admission before it is presented to the entire room for the jury’s viewing.
Practitioners should note that judges report favoring the use of technology in the courtroom, even when those judges may not utilize the technology themselves. For example, the New York City Bar Association polled all 193 judges working in NYC’s Supreme and Criminal courts. The 74 judges who responded to the survey said they are largely already using technology in their courtrooms and many were willing to increase its role. (It is worth noting, with a bit of irony, that the survey was done using a web-based questionnaire distributed via email.)
Of those respondents, 63.5% reported using email to communicate with parties and were in favor or strongly in favor of doing so. Participant responses cited “efficiency,” “easy and speedy communication,” “a written record,” and “all communications are preserved” as some reasons why email was preferred. Nevertheless, only 20.8% of participants reported using email to manage their court calendars, even though several participants commented that email can be useful for scheduling purposes. They feared it would “lead to more organize[d] chaos” and it “takes too long to do” or they simply were frustrated by their lack of understanding how to utilize email for calendar management.
4. For Yourself
Technology in the courtroom should be another element of effective presentation for every trial lawyer. Remember to use it as a tool to improve your presentation of evidence while not letting the form of delivery distract from the substance of your content. An able lawyer continually sits in the shoes of the jurors and the judge to ensure they are seeing your perspective of the facts and understanding your persuasion of the argument.
Once you are comfortable with the tools of the electronic courtroom, you will realize your trial preparation and practice can run far more efficiently and professionally. Neither a judge nor a jury like to sit and wait for the attorney who must sort and dig through his piles of casefile documents looking for an exhibit or responding to an objection. And so goes your client’s confidence as she looks on to witness the same.
5. For Your Profession
The next generation of lawyers is coming. No, not the robots. (Well, okay, maybe ‘yes’ the robots!) The Millennial lawyers have lived the changes in technology in their schooling and some in their young careers. They expect it and demand it as part of their law school experience and in their workplace. The same is carried over into the courtroom, and should be for lawyers of all generations. Trial technology prep should be an integral part of your routine trial preparation.
You should not cannot be a Luddite. Your legal competency – along with your clients, juries, judges, and profession – demand it. Likewise, you cannot assess the benefits and risks associated with technology if you are not well versed in the technology. Embrace the future of law and how it is changing our profession.