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Wednesday, March 18, 2015

Tips on Technology for Expert Witnesses in the Courtroom

Honorable Judge
Google “technology in the courtroom” and you’ll encounter 15 million hits on iPads and animation, LCD projectors and touch screen telestrators. You’ll find details on skyping in witnesses for testimony or using 3D printers to create demonstratives. You’ll find advertisements for CLE (Continuing Legal Education) classes from local bar associations. These hits are all in response to the “technological tidal wave” crashing onto the legal system. They reflect the collective need of attorneys and judges alike to anticipate, adapt, and accept the latest gadgets, and employ them effectively, efficiently, and ethically. . . without drowning in apps, cords, and associated lingo.

But, as we noted recently in our post on essential apps, attorneys aren’t the only ones in the courtroom with a need to be tech savvy – experts should be too. Not simply because it’s the latest fad, but because well-presented data in concert with engaging testimony are part of effective expert witnessing. If technology can enhance that connection with the jury and make one a more effective expert, then it makes sense to embrace those tools.

Still not sold? Below we’ll cover more of the why, as well as some of the “how” in terms of best practices for use. 

Why use Technology?

There’s already been quite a bit written on the psychology of juries and the role of technology in elucidating the nuances of a case, in cutting through snap judgments, and in keeping jurors engaged. There’s a great 2011 article by Dr. Ann Greeley, a jury consultant with Decision Quest, covering this topic if you want more in depth coverage. 

One of the core and oft-repeated points is that not only do jurors increasingly use technology in their own lives, but they expect a certain level of entertainment from such technology, and as such, come to expect it in the courtroom as well. 

However, beyond that, it should be noted that millennials (“digital natives” as the Pew Research Center has referred to that generation) and generation Z ( born   ̴1995 to today)  are simply conditioned to learn through technology. YouTube videos are utilized to demonstrate concepts and theories; entertaining TED talks introduce the latest advances in science and social science; and a websites like Coursera, Udacity, and EdX offer free or inexpensive online courses covering topics ranging from Introduction to Marketing from the Wharton School of Business to Wine101x. Plus, classes at many universities frequently feature professors who have traded chalk boards for tablets, and have substituted video-taped lectures for class time. 

In response courts have started to integrate tech into the courtroom too. For example, the Jefferson Circuit Court of Kentucky upgraded to independent multiscreen displays, citing “recent university studies have shown that students’ test scores improve by 14 – 15%, or one letter grade, when the course is taught with two or three different, simultaneous presentations compared with single screen content,” (see the upgrades and the article by Michael Patrick here).

Ultimately graphics and visual presentations of information help to pull the jury in and then convey complex case details, rendering them into digestible and memorable pieces of information. How do you explain the movement and transformation of contaminants in a groundwater plume over time? How do you explain the formation of byproducts in a complicated, multistep manufacturing process at a former chemical manufacturing plant? Animation, diagrams, and digitally marked up and highlighted documents can help illustrate what happened and how. 

As Timothy Wright, Professional Meteorologist specializing in forecasting and forensics, shared with us on Linkedin (bolded for emphasis):

“There seemed to be a positive response to my use of modern technology vs. the opposing side's expert who was mired in pages of hand-written notes and grainy photocopies of radar and satellite imagery. I had nice crisp presentation-quality graphics. I noticed the judge and jury seemed less sleepy and more engaged during my testimony than during the opposing [expert’s]. 

My attorney was also impressed because after going through my data and findings and comparing with the opposing meteorologist, she saw that I produced much more and better quality work for about half the billable time.”

Questions to Ask

It is clear that technology can significantly make a difference when employed effectively. As you considering bringing it into your practice there are some questions you should ask:
  • Will it improve your work product?
  • Will it cut costs in the long run? 
  • Will it make you more effective in trial? 
    • Simplify concepts?
    • Engage the jury?
    • Streamline testimony?
    • Convey your “theme” or “narrative” better?
    • Enhance your credibility?  

We’re not going to go into specifics on different products or tools right now – there’s a lot of good info out there – but the point is to think about the questions above – what will help you do all that better? Does an iPad give you enough flexibility with your data? Will another tablet allow you to be better organized? Regardless, once you decide on what you plan to use, there are a couple of basic things to keep in mind.  Thanks to others who are writing and blogging there are some excellent articles and posts already out there, mostly written by attorneys (for example, see Attorney, Tad Thomas’ “Effective Use of Technology in the Courtroom” or “Federal Practice: Using Technology at Trial” by Peter Ausili).

We’ve included some of those insights as well as some of our own to compile 5 tips for experts using technology in the courtroom. Without further ado:

5 Tips on Technology 


Coordinate with the Attorney
  •  First and foremost: They don’t need surprises, and neither do you! You’ll want to have ongoing discussions about strategy early on in the case, regardless of whether you’re using an abacus or an iPad. You and the attorney (or team of attorneys) will want to work on together on the “script” for the direct exam, which includes how and when you plan to use demonstratives. It should be noted that sometimes demonstratives need to be given to the opposing side in advance for them to review. We’ve had that happen a few times, but not always.
  • Your conversations should also include whether they’ve hired a trial consultant or graphic designer, as well as the level of visualization they’re interested in at different stages. Of course if you believe “X” technology will make you a better expert, you should make sure the attorney knows this as it is your job to advocate for the best presentation of the data or science. 

Be Prepared
  •   Be well acquainted with your technology: Effective expert witnessing has always followed the “practice makes perfect” rule, whether for deposition preparation, direct examination or cross-examination. Using technology is no different: be prepared for hiccups and know the tools you’re using well. Don’t try them out the morning before trial only to discover your software does not integrate with your hardware!
  •  Have a Backup Plan: In that vein, it’s important to always have a backup plan. Be able to testify without the tech (i.e. have hardcopies), or come with duplicates (e.g. Tad Thomas has two iPads that are equipped with the same apps and information synced from the cloud and an ABA article on tech lists recommendations for a contingency plan on page 6)

Don’t Use Technology as a Crutch
  • As Philip Sechler, attorney and professor from practice at Penn State Law observed in a recent article on his mock trial classes: “I’ve seen lawyers rely so much on technology they forget what it means to just be an effective, credible advocate for their client.” The same goes for experts. Don’t rely so much on the gadgets at your disposal that it affects your credibility, or detracts from your opinions and the concepts you want to convey. In sum, don’t let the technology that is intended to simplify, complicate. 

Know the Rules
  • Technology may be rapidly evolving but that doesn’t mean the courts are keeping pace. In our conversations on LinkedIn, one expert pointed out that different jurisdictions, and even different judges may have radically different rules regarding whether the use of iPads and other technology is permissible. For example, as iPhone JD (which covered this topic last week) noted: in the Supreme Court you can’t use any electronic devices. You can find more details about Fifth Circuit rules and Louisiana courts at the link, not to mention further coverage in the comments.
  • Likewise, certain judges may be tech savvy, but even they have limits. For example, in the U.S. District Court Northern District of California (where unsurprisingly there is a lot of tech litigation) you may use electronic devices with permission of the presiding judge; however, in Magistrate Judge, Honorable Grewal’s court, your selfie stick should be left at the office! (See @iampaulgrewal's Tweet above)
  • Meanwhile the article by Tad Thomas and a case study by Helen Geib on Inside Counsel highlight a different angle: courts aren’t always prepared for technology, and even if they are, it may not be used often. It’s good to get a handle on what will be available before you walk in for trial and always good to have extra equipment on hand (e.g. HDMI cables, HDMI converters for your Mac, etc.)

Be Aware of Security Issues
  • This seems pretty straightforward – obviously have password protections and security measures in place for your technology. But it also comes down to being a knowledgeable user, and knowing how confidentiality and sensitive data fits in with your use of the technology. For example see the potential problems associated with Google Translate by Above the Law.

Conclusion

Ultimately, during trial, expert testimony is really all about the jury. Does your use of technology make your testimony clearer, simpler, and more engaging? Does it make you a better teacher? If the answer is yes, then embrace it!

Obviously, the courtroom is not the only place where technology is cropping up: it is showing up in the pre-trial process (in the use of e-discovery or in video-taped depositions), revolutionizing your profession (new methods of analysis and advanced equipment), and appearing in your personal life (social media, etc.). So there will be ample opportunity to discuss the implications of technology for experts. We’ll be following up with more posts in the following weeks!

In the meantime, let us know your thoughts and/or advice on Expert Witnesses using technology in the courtroom in the comments!

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