Lori Cohen and Eric Schnapp of Greenberg Traurig explore the impact of technological developments on the court process, including social media:
"Entire jury pools have been discharged for a single Google search, and despite evidence to the contrary, one cannot successfully learn the law from Wikipedia."
The courtroom of today looks significantly different from that of 15 years ago. Technology has infiltrated the courtroom, a place generally resistant to dogmatic change, and its impact has become readily apparent at trial. Large presentation screens display eye-popping graphics, witnesses virtually draw on digital documents, and computers adorn every table. Despite the flashing LEDs and laser-pointers, the core components of a jury trial remain the same: judge, jurors and parties. Today, judges consider decades-old court rules and ethical issues as they apply to jurors’ and attorneys’ use of rapidly changing digital tools. Effective use of technology at trial can make a big impact, but using it improperly can alienate jurors and cause attorneys to run afoul of court rules.
Effective use of technology at trial
“Use a picture. It’s worth a thousand words.” Since New York Times editor Arthur Brisbane coined this expression in 1911, with time and interest, a picture is now worth approximately 24,636 words. Nowhere is this truer than at trial. Evidence can be dry, and it doesn’t take a Daubert-mustering expert to recognise when a juror, or the entire jury, has stopped paying attention. Effective use of technology in the courtroom can captivate a jury. Posterboards are increasingly being replaced by 3D animations, and while trial all-nighters are less often spent at the copy shop and more commonly behind a computer, real and demonstrative evidence continues to be a form of persuasion and can be the turning point in a case.
Trial technology should be used selectively and crafted to deliver a specific message. All too often an attorney slaps his entire argument on a screen and sits down. Jurors learn better if they are stimulated both visually and aurally, but the entire graphic must support the story an attorney is telling and the critical themes supporting his or her case. Slide themes and graphics should remain consistent throughout the entire trial and work together in order to effectively support an argument. Jurors are distracted by confusing colour schemes, and needlessly flashy graphics detract from the message.
A recent addition to counsel’s table, or right behind it, is the trial technologist, who can provide assistance with presenting electronic and demonstrative evidence using well-established trial presentation software. Much more than a single-man IT department, the trial technologist helps attorneys, experts, and paralegals understand what presentation techniques work best at trial and can create graphics, slides, or animations. He or she is responsible for coordinating electronic data for use at trial to retrieve a specific document, video, or demonstrative exhibit on the fly. A trial technologist will also schedule equipment set-up and removal with court officials and provide assistance in renting or purchasing necessary equipment, whether a simple projector or a microscope for showing histology slides to the jury. A good trial technologist is invaluable and allows the attorney to focus on the argument rather than fiddle with the computer.
While presentation tools have evolved over the years, inside the courtroom they remain subject to existing local rules and standards, which can vary by jurisdiction or judge. Courts permit demonstrative evidence in varying degrees, although argumentative or needlessly inflammatory graphics generally remain impermissible. A court may have different standards for opening and closing arguments, and it remains the responsibility of the attorney to review those standards ahead of time and speak with the court’s staff to learn the judge’s preferences.
Simply because flashy graphics or presentations can be used at trial doesn’t mean they always should. The technology should fit the complexity of the case: while a sophisticated trial may warrant advanced presentation techniques, a simple landlord/tenant dispute may not. Similarly, technology should be consistent with the venue, local practices and attorneys, and the judge’s expectations. Alternatively, if an attorney wants to “shake things up”, he should do so knowingly and with caution. Highlighting the disparity in resources between an individual plaintiff and a corporate giant by showing the difference between his “chalkboard” graphics and the defendant’s trial technology is common, and any David v Goliath argument should be pre-empted with a motion in limine.
Graphics, animations, or visual aids may need to be finalised and exchanged prior to the final pretrial conference, or the parties may simply agree to share them in advance. Doing so helps curb any disputes regarding demonstratives while at trial and avoids delays. However, attorneys should proceed with caution and understand their opponent’s tactics.
The most convincing animation is of little worth if the jury never sees it. Complex electronics and cables will eventually fail, predictably at the most inopportune moment. Courtrooms are not known for having the latest technology, and if the budget allows, having a back-up projector or computer on hand may make all the difference. An attorney must always be prepared to proceed without the aid of his digital tools. A judge will only tolerate a limited amount of troubleshooting before ordering the trial to proceed. A well-prepared attorney or technologist will arrive early to test out all equipment or bring hard copies of demonstratives as a back-up to avoid any embarrassing technology mishaps.
Jurors and social media
In a jury trial, the jurors are arguably the most important people in the room: the fate of a client rests in their hands. Before empanelling a jury and after one has been selected, both parties have a large incentive to uncover as much as possible about these omnipotent souls. A juror demonstrating improper bias or prejudice in his or her social media activity can be avoided altogether. With strict rules prohibiting communication between attorneys and potential and active jurors, this task used to require private investigators and a significant expenditure of resources.
Jurors have since made this task exponentially simpler through their use of social media. It is no longer required to dig through a bin to ferret out a juror’s political leanings. Be it Facebook, Twitter, or Instagram, every single public post reveals an important clue of a juror that allows a party to individually tailor an opening, closing, or witness examination to maximise the jury’s response to it. Age? Favourite sports team? What the juror ate for breakfast this morning? It is all shared online for the world to see, for better or for worse. Social media can be used to smoke out and deselect potentially dangerous or problematic jurors for the case or client. Online activity can be used to assess the juror’s leanings for or against corporate America. Conversely, a juror with little or no social media activity reveals that he or she is probably older, less technologically savvy, and holds more conservative beliefs. Online activity can help discover red flags that would otherwise be missed.
This magic window into a juror’s life does not come without its problems. Does an attorney have a duty to inform the court when he or she learns that a potential juror is lying on voir dire? If a potential juror castigates Company XYZ on his Facebook page but states that he could be impartial at Company XYZ’s trial and reserve judgment until all the evidence is heard, what responsibility does an attorney have? The American Bar Association (ABA) recently weighed in with Formal Opinion 466, approving a party’s passive review of a juror’s or potential juror’s public electronic or social media activity. Short of a juror’s criminal or fraudulent conduct, an attorney is generally not under a duty to bring the discovery to the court’s attention.
Additionally, whereas some insight into the life and interests of a juror can help structure an opening argument, too much information can cause paralysis by analysis. Without a proper means of evaluating social media postings, a party can suffer data overload and exhaust their time and resources attempting to analyse every nuance of every Tweet. Eventually, software may be able to automatically synthesise the entirety of a juror’s social media activity and deliver a succinct analysis of his or her hobbies, interests, and personality. Until then, it must be remembered that social media investigation is only one of many tools available to a party at trial. Knowing that juror #7 enjoys tango music is interesting, but it won’t win the case.
Be wary: No violating court and communication rules
At the beginning of a new trial, judges generally instruct jurors not to communicate with the parties. Rule 3.5 of the ABA’s Model Rules of Professional Conduct states that a lawyer shall not communicate ex parte with a juror or prospective juror during a proceeding. Most states have their own rules of professional conduct and local rules prohibiting such communication to prevent a party from improperly influencing a juror or sharing information that has been purposefully excluded. For the most part, attorneys are so afraid of violating this rule and causing a mistrial that, to the untrained eye, they may appear rude in their attempts to avoid communication.
Prior to the internet, it was easy to avoid personal contact between jurors and attorneys. However, social media has blurred the boundaries of Rule 3.5 by introducing new ways to communicate. Is a “poke” or “wink” from an attorney to a juror a form of communication? Is sending a request to become “friends” on a social media website a communication? Mistrials are only a mouse click away. Courts, as well as the ABA, have distinguished between passively reviewing a juror’s public information and actively sending a message or requesting access to a juror’s private information. The former is akin to driving down the street on which the juror lives; the latter would be like knocking on the juror’s door and is not permissible.
Jurors themselves have been found to violate communications instructions on numerous occasions as well, such as “friending” a defendant during trial or sending Facebook messages to a testifying witness. Similarly, courts generally instruct the jury not to perform their own research or investigation out of concern that a juror’s opinion may be tainted by media reports or the discovery of evidence that the parties worked so hard to exclude. Never has the ability to learn more about a subject been easier or more problematic. Entire jury pools have been discharged for a single Google search, and despite evidence to the contrary, one cannot successfully learn the law from Wikipedia.
In the end, perhaps nothing has really changed
Courts struggle to interpret jurors’ and attorneys’ changing behaviour within existing rules as technology continues to evolve. Advisory opinions help provide some guidance, but technology will always outpace the court’s ability to establish new rules. It is important to note, though, that a custom 3D animation is viewed no differently from an overhead projection in the eyes of the court, regardless of the cost. Before adopting the next latest and greatest technology, attorneys should be sure to interpret its use within the same rules and standards of years ago and utilise those arguments to overcome any objections.