Technology Is a Double-Edged Sword In the Courtroom

Open any recent periodical targeting attorneys and you will invariably find an article with a siren's call to incorporate technology into trial presentations or risk being at a disadvantage to an opponent who can. What most of those articles overlook are the practical barriers to using technology that limit its usefulness in litigation. While it can enhance a trial presentation, not every trial will benefit from the use of technology, and in many instances it can be an expensive hindrance rather than an asset. It may be wise to use technology judiciously.

Hidden Costs

The first barrier to using technology is the hidden costs. Beyond the more obvious hard costs of the presentation software, laptop, and portable projector, substantial soft costs are incurred by the considerable time and expense it takes to transfer and index case file information into the presentation software. Relevant documents, trial exhibits, and deposition transcripts must be pulled from the client file and converted into an electronic format. Large-format items such as X-ray or MRI films have to be sent out to a third-party vendor. Simply scanning in documents alone is not sufficient, as each electronic item must be named, described, indexed, and tagged. If you choose to undertake this task, delegate it to support staff or outsource it to a third-party vendor.

In addition to these costs, significant lead time is required to complete the transfer and indexing process and to allow the trial attorney sufficient practice time with the presentation software to organize and prepare for trial.

If you are lucky enough to have a technology-savvy assistant, a scanner, and the requisite software, you can save on hard costs by digitizing and indexing trial exhibits and materials in-house. Nevertheless, in-house work still has a soft cost that must be considered against the quoted hard costs by a third-party vendor.

Most third-party vendors price projects based on the number of items digitized and indexed. By limiting which items you send out to only those necessary for trial, you could potentially save money, but this must be weighed against the soft costs incurred by the time it takes to pare down the file. It has been our experience that third-party vendors represent the best value when litigating large, complex cases because of their access to specialized digitizing and indexing equipment whose speed and efficiency cannot be duplicated in-house. If you do choose to use a third-party vendor, it is important to plan early for the scope of services needed and secure firm cost estimates.

By way of example, in a recent complex medical malpractice case, we used a third-party vendor to create a database by digitizing and indexing nearly all of the file materials, including extensive medical treatment records, X-ray films, MRI films, medical illustrations, photographs, pleadings, deposition transcripts, deposition videos, multiple day-in-the-life videos, and other pertinent documentation. The original materials filled about five banker boxes, but once digitized and indexed, they fit on one CD-ROM.

The advantage realized by creating the database was the ability during trial preparation to quickly and efficiently identify those items that would be used as trial exhibits, thereby maximizing our trial preparation time.

Courtroom Shortcomings

The second barrier to using technology is the courtroom. While many courthouses feature technology-enabled courtrooms, an attorney cannot rely upon the equipment to always work. Typically, the weak link is not in the quality of the equipment itself, but rather in the court staff, who receive minimal training and lack the ability to quickly troubleshoot problems integrating your personal equipment with the courthouse equipment. The alternative is to bring your own presentation equipment into the courtroom. If you don't have presentation equipment, then you incur setup time and rental costs to bring equipment in instead of using the courtroom's. Unless you are a technology expert, anticipate the hidden cost of bringing along support staff or hiring an IT professional to set up the equipment, make sure it is functioning, and operate the equipment during the trial.

The Attorney's Technological Abilities

The third barrier to using technology is the trial attorney. Technology is a demonstrative tool, and like any tool it can become a hindrance to the trial attorney if he or she cannot use it effectively. Using support staff or hiring a third-party vendor to operate the technology in the courtroom will minimize the possibility of any potential technical problems, but incurs an additional cost that must be accounted for. Even if you use support staff or hire an IT professional, you still have to practice integrating the technology into your trial presentation.

Practical Tips: In the Courtroom

If you have to set up the equipment yourself, practice unpacking and setting it up. If you will work with an assistant or third-party vendor, practice with the person who will be operating the technology to review cues and signals of when to display what items.

If you will be using a laptop computer, take the time to create a separate user account to be used for presentations only. Configure the account to contain only the icon needed to launch your presentation, disable the typical start-up software, remove the desktop clutter of icons, use neutral desktop wallpaper, and disable the screensaver and power management function. The advantage of using a presentation user account is that it eliminates the possibility that your presentation will be interrupted by a nagging program pop-up, screensaver, or ill-timed power down. A separate account also will increase the professional appearance of your presentation and avoid the potential embarrassment of accidentally displaying a cluttered desktop or screensaver with personal images.

Conclusion

The basic trial skill of crafting a compelling argument to judge or jury will always remain the same ' only the method of communicating that argument has changed. When used effectively, technology can be an unparalleled tool for the attorney to wield, but technology also carries with it hidden opportunity costs that must be accounted for. In the end, a trial attorney must balance all the costs of using technology ' including the many hidden ones ' against the value proposition in any given case.

George C. Zumbano is a shareholder at Gawthrop Greenwood, based in West Chester, PA, a Philadelphia suburb. Benjamin R. Messing is a litigation associate with the firm. This is a condensed version of an article that first appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.

Open any recent periodical targeting attorneys and you will invariably find an article with a siren's call to incorporate technology into trial presentations or risk being at a disadvantage to an opponent who can. What most of those articles overlook are the practical barriers to using technology that limit its usefulness in litigation. While it can enhance a trial presentation, not every trial will benefit from the use of technology, and in many instances it can be an expensive hindrance rather than an asset. It may be wise to use technology judiciously.

Hidden Costs

The first barrier to using technology is the hidden costs. Beyond the more obvious hard costs of the presentation software, laptop, and portable projector, substantial soft costs are incurred by the considerable time and expense it takes to transfer and index case file information into the presentation software. Relevant documents, trial exhibits, and deposition transcripts must be pulled from the client file and converted into an electronic format. Large-format items such as X-ray or MRI films have to be sent out to a third-party vendor. Simply scanning in documents alone is not sufficient, as each electronic item must be named, described, indexed, and tagged. If you choose to undertake this task, delegate it to support staff or outsource it to a third-party vendor.

In addition to these costs, significant lead time is required to complete the transfer and indexing process and to allow the trial attorney sufficient practice time with the presentation software to organize and prepare for trial.

If you are lucky enough to have a technology-savvy assistant, a scanner, and the requisite software, you can save on hard costs by digitizing and indexing trial exhibits and materials in-house. Nevertheless, in-house work still has a soft cost that must be considered against the quoted hard costs by a third-party vendor.

Most third-party vendors price projects based on the number of items digitized and indexed. By limiting which items you send out to only those necessary for trial, you could potentially save money, but this must be weighed against the soft costs incurred by the time it takes to pare down the file. It has been our experience that third-party vendors represent the best value when litigating large, complex cases because of their access to specialized digitizing and indexing equipment whose speed and efficiency cannot be duplicated in-house. If you do choose to use a third-party vendor, it is important to plan early for the scope of services needed and secure firm cost estimates.

By way of example, in a recent complex medical malpractice case, we used a third-party vendor to create a database by digitizing and indexing nearly all of the file materials, including extensive medical treatment records, X-ray films, MRI films, medical illustrations, photographs, pleadings, deposition transcripts, deposition videos, multiple day-in-the-life videos, and other pertinent documentation. The original materials filled about five banker boxes, but once digitized and indexed, they fit on one CD-ROM.

The advantage realized by creating the database was the ability during trial preparation to quickly and efficiently identify those items that would be used as trial exhibits, thereby maximizing our trial preparation time.

Courtroom Shortcomings

The second barrier to using technology is the courtroom. While many courthouses feature technology-enabled courtrooms, an attorney cannot rely upon the equipment to always work. Typically, the weak link is not in the quality of the equipment itself, but rather in the court staff, who receive minimal training and lack the ability to quickly troubleshoot problems integrating your personal equipment with the courthouse equipment. The alternative is to bring your own presentation equipment into the courtroom. If you don't have presentation equipment, then you incur setup time and rental costs to bring equipment in instead of using the courtroom's. Unless you are a technology expert, anticipate the hidden cost of bringing along support staff or hiring an IT professional to set up the equipment, make sure it is functioning, and operate the equipment during the trial.

The Attorney's Technological Abilities

The third barrier to using technology is the trial attorney. Technology is a demonstrative tool, and like any tool it can become a hindrance to the trial attorney if he or she cannot use it effectively. Using support staff or hiring a third-party vendor to operate the technology in the courtroom will minimize the possibility of any potential technical problems, but incurs an additional cost that must be accounted for. Even if you use support staff or hire an IT professional, you still have to practice integrating the technology into your trial presentation.

Practical Tips: In the Courtroom

If you have to set up the equipment yourself, practice unpacking and setting it up. If you will work with an assistant or third-party vendor, practice with the person who will be operating the technology to review cues and signals of when to display what items.

If you will be using a laptop computer, take the time to create a separate user account to be used for presentations only. Configure the account to contain only the icon needed to launch your presentation, disable the typical start-up software, remove the desktop clutter of icons, use neutral desktop wallpaper, and disable the screensaver and power management function. The advantage of using a presentation user account is that it eliminates the possibility that your presentation will be interrupted by a nagging program pop-up, screensaver, or ill-timed power down. A separate account also will increase the professional appearance of your presentation and avoid the potential embarrassment of accidentally displaying a cluttered desktop or screensaver with personal images.

Conclusion

The basic trial skill of crafting a compelling argument to judge or jury will always remain the same ' only the method of communicating that argument has changed. When used effectively, technology can be an unparalleled tool for the attorney to wield, but technology also carries with it hidden opportunity costs that must be accounted for. In the end, a trial attorney must balance all the costs of using technology ' including the many hidden ones ' against the value proposition in any given case.

George C. Zumbano is a shareholder at Gawthrop Greenwood, based in West Chester, PA, a Philadelphia suburb. Benjamin R. Messing is a litigation associate with the firm. This is a condensed version of an article that first appeared in The Legal Intelligencer, an ALM sister publication of this newsletter.