Technology in the courtroom is always changing. It is how we adapt to and utilize these changes and advances in technology that can make the difference between winning and losing a case at trial.
I began trying cases 23 years ago. For quite some time, I used an easel with large white paper that you could write on and then flip over and write on the next page. I found it quite effective to use during trial. In fact, I outlined my entire opening statement on those flipcharts. I can still remember spending numerous hours with various colors of Magic Markers creating just the right message on the flip chart. Sometimes my flipchart would be 25 pages long for an opening statement. In the middle, I might change my mind but had already written out the flipchart. I simply would tear that page way bring it forward or move it backwards in the opening statement outline and tape it to another page.
That’s how much technology I used 23 years ago.
As I became more comfortable using PowerPoint, a 25 page flipchart turned into beautifully designed PowerPoint presentation. I have found that PowerPoint is a must for opening statements and closing arguments, and sometimes voir dire. However, I have found it even more effective to combine PowerPoint presentations during opening statements and closing arguments with a visual presenter, commonly referred to as an Elmo.
For opening statement, I will create an effective outline on PowerPoint. I will include all the bells and whistles. I will use different colors just like the flip boards of past. I use different font sizes and styles. I create stopping points throughout my PowerPoint outline. It is at these stopping points that I will flip a switch and activate the Elmo.
The Elmo is more flexible than PowerPoint and will allow me to zoom in and zoom out of certain portions of important documents or photos that I think are crucial. It also allows me to pick up the document or photo, hold it high above my head or as close to the jurors in the box as I can, for a more dramatic affect. The Elmo also allows me to immediately incorporate, in my presentation, newly found evidence or, more likely in my case, evidence I have known about for some time but just figured out was important. I strongly encourage trial lawyers to combine both in their trials.
I recently was confronted with courtroom technology of which I was unfamiliar. Luckily for my client, such new technology did not detrimentally affect the outcome of the trial.
Cameras & Mics instead of Court Reporters
I was called upon to try a wrongful death case for the widow of a truck driver who perished, I argued, due to a hazardous highway construction zone. I primarily practice law in Oklahoma City, a city of 1 million people in the metropolitan area. However, I was trying this case in a small town in Kentucky. The population of the entire county was around 15,000. I assumed the technology in such a small town courthouse would be similar to the technology I routinely find in rural Oklahoma counties.
I was wrong.
In preparing to stand up to perform voir dire, I noticed there was no court reporter present. Previously, I had noticed cameras in the corners of the courtroom perched high above. I assumed they were for security purposes, as my trial judge acted as a judge for both criminal and civil cases. Upon my inquiry as to the absence of the court reporter, I was advised that there would not be a court reporter, that everything occurring in the courtroom was being videotaped and recorded by the cameras I had earlier noticed.
That explained the numerous microphones of various shapes and sizes stationed throughout the court room.
It was explained to me that the video cameras would activate, one at a time, depending on which microphone in the courtroom picked up the loudest sounds, presumably lawyers and witnesses talking. So, if I was conducting my opening statement, beginning at the lectern, one camera would videotape me talking because the microphone at the lecture picked up my voice. If I then meandered to the jury box, because there were microphones stationed along the jury rail, a different camera would zero in on me as I spoke from that position. It was a thing to behold.
I was told that a transcript could be accurately completed upon request, by the court reporter simply viewing the videotape which, of course, contained all of the audio. After the successful conclusion of the trial, I was given DVD’s of all 10 days of trial.
Always on the Record
It was about the third or fourth day into the trial when our trial judge asked the lawyers to come back to chambers. For the first time, I noticed that there was a monitor on one of the judge’s clerk’s desks that showed exactly what was going on in the courtroom. To my utter horror, I also could hear everything said in the courtroom even though court was not in session. The video and audio was continuously open and being fed to the judge’s chamber.
Therefore, during trial recesses, no matter if they be brief or lengthy, the microphones at my counsel table would pick up conversations between my co-counsel and me, even if we whispered, and such conversations could be heard in the judge’s chambers.
I was mortified. Sometimes, my humor can be somewhat dry and biting. I can only imagine what the judge’s clerk, or more horrifically, the judge, herself, may have overheard me say to my co-counsel after one of the judge’s rulings negatively impacted my case.
Suffice it to say, there were no more discussions held at counsel table unless I was certain the microphones were covered.