Sometimes the Old Ways are Best

Do No Harm

God knows I love technology. No doubt you've heard me harping about how I think it will change the practice of law. Inefficiency is rampant in the practice of law and technology can sometimes help minimize inefficiency. But using technology is tricky, and sometimes it creates more problems than it solves. So when should you use it?

You should use technology if it will make the job easier. And, of course, avoid using technology if it will make the job harder or more complicated. Or, as the first principle of the Hippocratic Oath commands to doctors: "First, do no harm."

How can using technology cause harm in the practice of law? Recently, I found out.

In the past few months, I've had the opportunity to observe bits and pieces of a class action trial here in New Orleans where great effort has been made to use technology to expedite the trial (the legal issues and the type of the trial are irrelevant to what I'm going to discuss). When I first learned of the judge's intent to have all of the documents imaged so that they could be quickly called up to a master display I was pleased. Yes, this is precisely the use of technology that will make things easier.

Or so I thought before I got to watch the trial in progress.

Case Study #1: the wireless microphone

The courtroom is a small room in which anyone who speaks up could easily be heard. Most of the attorneys have strong speaking voices that carry well without any need for amplification. Nevertheless, the judge requires the attorney who is examining the witness to wear wireless microphone gear. Basically that means having a little unit the size of a pack of playing cards in your pocket, and then a wire that runs out and clips to your suit or your tie. Which you have to remember to turn on. Sounds pretty simple, right?

It works great. As long as you don't have any objections during the trial.

The attorneys who make objections are prohibited from making 'speaking objections' which means that the judge doesn't want the jury to hear too much of the basis for the objection. And with good reason. A lot of the objections relate to things that the judge has ruled that the jury can't hear; so if the objecting attorney had to say what the reason for the objection was then the jury would have a good idea about what was being objected to.   There are perhaps other good reasons for not allowing 'speaking objections' but what does this have to do with the wireless microphone?

Well, every time an objection is made the attorney who is wearing the microphone has to turn it off. And that means he has to reach inside his pocket, fumble around and flip the switch.  He has to do this as he makes his way across the room over to the judge's side, where a hushed conference takes place outside of the jury's hearing.  In this football huddle there is often a lot of heated discussion and the attorney with the microphone has to think of counter-arguments to the objection, the reasons for which he is just now learning about.

The ability to think on your feet is a nice skill to have in this situation.

Anyway, after the sidebar conference is over the attorney with the wireless mic has to make his way through the maze of chairs and tables to get back to his position at the lectern (a process that can take a half a minute, depending on traffic).  Once he reaches the podium safely, the wireless attorney has to again think of a suitable question to ask the witness. Hopefully, it is one that won't draw another objection.   With great trepidation the question is then put to the witness.

However, not surprisingly, the examining attorney often forgets the least important thing: namely, to turn the microphone back on.

So the judge has to interrupt the proceedings once again and remind him to turn on the microphone.  And so he has to reach into his pocket and fiddle around to find the switch.  And then he has to test the microphone: testing one, two, three...(tap tap) is it on?  Yes, it is.   So then, speaking through the P.A. system, he has to apologize to the judge for his oversight. 

All of this obviously takes time.  Not vast amounts of time.   But just enough time to cause the jurors to crane their necks and look at one another with raised eyebrows, or hunched shoulders.

Sometimes the attorney remembers to turn the microphone on, but it simply doesn't work.  Then maybe it needs to be shaken hard, or perhaps the batteries just need to be changed or recharged.

Or sometimes the microphone works, but the wireless attorney asks poorly formed question, which draws an objection. And the whole process starts over.

Case Study #2: electronic documents

But enough about microphones, what about the trial documents? Remember I told you those were all scanned, which is good because there are 20,000 documents that the various parties have designated for use at the trial. The court has an elaborate viewing system that allows the attorneys to see the documents without displaying them for the jury, and then there is a large overhead screen that the jury can look at once the document has been introduced.   Big display the size of the main viewing window on the Starship Enterprise.

So what could be the problem?

Again, a lot. First, and foremost, you have the problem of multiple versions of the same document.

For example, like when plaintiff's exhibit 1234 is the same as Defendant #1's exhibit 4567, which is the same as Defendant #2's 8901, and so on.  In a case with thousands of documents, it is not unlikely to have many versions of the same document. Sometimes one party will have several versions of the same document, each with its own unique Bates number.

So in the middle of the examination of a witness you will get an exchange like this:

Plaintiff Attorney: Your Honor, we would like to now show the witness Plaintiff's exhibit 1234, which Your Honor admitted a couple of days ago as Defendant #1's 4567.

Court: I did? Well, then let's see if there is an objection.

Defendant #1 Attorney: Hold on your honor, we're searching to make sure that's correct. Uh, no actually, it was admitted...but it was admitted as Defendant #2's 8901.

Plaintiff Attorney: I'm sorry Your Honor, they're right.  So, can we use this document with the witness?

(End of exchange)

At this point you'd be thinking well why doesn't the plaintiff attorney just use the document that was admitted before? That's a good question. The answer is that he has his own system for displaying documents that he has prepared for use with this witness; maybe he couldn't anticipate, or count on, the defendant using the same document and having it admitted before he was going to. For his computer guy to switch over on the fly and use the defendant's document would take too long and disrupt the proceedings, which as you've noticed are already easily disrupted.

The counter argument is: he knew, or should have known, that the defendant introduced that document a couple of days ago. He should have gone back and reworked his system to account for that. All he'd have to do is get with the computer guy and update his files.

Okay, that's true. But is that what a trial lawyer should be doing in the middle of a complex trial? Updating his or her system to conform to a technical scheme that is supposed to make things easier? An attorney, in preparing for trial, likes to set as many things up beforehand so that he or she can concentrate on the things that come up during the trial. A technical system that adds to the list of "last minute" things the attorney has to worry about is not a good system.

But these problems could be completely avoided if attorneys simply didn't allow multiple versions of documents to be listed as trial exhibits. Well, attorneys aren't going to do that unless courts make them. And if the court is going to make the parties do that then it has to be prepared to mediate disputes about the multiple document versions. Courts don't like to mediate such supposedly trivial disputes, so they leave them until trial. However, as we've seen, it's too late to fix this problem at trial. And once you start getting bogged down with multiple versions of electronic documents at trial everyone suffers: the attorneys, the court, and the jury.

So let's imagine a pristine world without the multiple versions of electronic documents. Let's say you just want to put a document up on the screen and display it. Sounds simple? Not necessarily.

What are the rules for this sort of behavior? In the trial I saw the attorney has to first ask the computer guy to pull up the document so the attorneys and the judge can see the document and decide if it is proper to use it. If they agree, the attorney then has to tell the computer guy which page he wants to display. When the computer guy has the right page called up the attorney has to ask the court for "permission to publish." That means: do I have permission to show this particular page to the jury?

If the court agrees then that particular page is displayed.  Getting a page displayed is no big deal.  So now the attorney wants to call the witness's attention to a particular part of the document.  And that means that the computer guy has to first "highlight the portion in yellow," and then "zoom in on the highlighted portion," which makes it bigger so the jury can see it. Except sometimes they can't see it very well, in which case the witness has to read it out loud (trust me, I know what you're thinking here).

All of this finagling with the electronic document takes time.

During these pregnant pauses of 10 and 15 seconds, the attorney with the wireless microphone is just sitting there at the podium waiting for the document section to appear so he can ask the next question (which hopefully won't be objected to). And God forbid he has to switch to a new page. That means the whole process starts over, including asking the judge for permission to show that page to the jury.

It would be interesting to measure the process to see just how much time is wasted on this fancy display procedure. One thing is certain: the extra time adds just enough delay to to make it a high-tech version of water torture.

Final Observations

One conclusion that could be drawn is that the particular system in the trial that I saw is flawed. I'm sure that technology has been used in some trials to expedite matters. But whether it has been used successfully somewhere may not be the key point.

I think that there is another lesson here, and it is one that I'm trying to grasp because I think it applies to me, i.e. someone who really likes technology. People who love technology, and see its benefits, are quick to overlook the simple fact that people who don't share that enthusiasm are not eager to use new tools to do a job that they have done pretty well with old tools.

So, just because I might readily use a wireless microphone and remember to turn it on and off, or know how to troubleshoot problems that come up, doesn't mean that most lawyers would like to use it, or be able to use it effectively. This is especially true if the trial is going to involve a rule that requires attorneys to traipse over the judge constantly. In that case why not simply use a stationary microphone that is permanently attached to the lectern? Or what about the simplest solution of all: just let the attorneys speak loudly when they want to be heard by the jury. Attorneys have been doing this for years. It's an low-tech concept that has been field tested and works pretty well.

Proper use of electronic documents is actually one area that can make a trial go smoother. But one major impediment, as we have seen, is having multiple versions of the same electronic document. This problem can only be tackled effectively in the beginning of a case. The parties, and more importantly the judge, have to realize the importance of using only one version of a document, unless there are good reasons to do otherwise.

Anytime you allow multiple document versions to creep into the case (like insidious weeds) they become very hard to manage. And converting the weeds to "electronic form" makes the trimming more critical at the same time that it makes it infinitely harder. Obviously, managing a set of electronic documents that have multiple versions quickly leads to the proverbial Chinese Fire Drill. Even without the confusion of multiple document versions, you can create impediments to the orderly flow of testimony if you don't think about the ramifications of using new technology tools like the ones that let you display documents electronically.

Conclusion

The job of a trial lawyer is to telling compelling story through the testimony of witnesses and the use of exhibits such as documents and demonstratives. The rules of evidence and procedure constrain the story telling process in a way that, while it preserves due process, is disruptive and often creates outright boredom and confusion. If the use of technology can somehow improve the story telling process then that's fine; but if it is just another constraint, then it is better left out of the equation. In short, sometimes the old ways work best.

Epilogue: One notorious example of technology overkill is the now-familiar powerpoint presentation. One wonders what would have happened if Abraham Lincoln had been able to use this tool to assist him as he made the now-famous speech at Gettysburg.  Wonder no more.   Here is the answer.

Last update: 6/5/2003; 10:08:32 PM.