This article was written for The Mississippi Lawyer and was published Feb. 13, 2023.
Last Fall, we discussed the differences between the use of trial technology by Andrew's 350+ person law firm and Taylor's two-person law firm. We both had strong feelings about the use of technology in the court room. That conversation led to a CLE program aimed at finding technology solutions that work for every litigator and at every budget.
We talked to a bunch of experts. The best information we got was from Chief Judge Dan Jordan. He told us that almost every juror has amazing technology in their homes. Almost every juror has a smart phone that gives them the news and stories in every imaginable format. Those jurors expect lawyers to be competent using technology and to use technology in a way that adds to the story they are telling.
These six dos and don'ts should get you started effectively incorporating technology into your practice:
1. Start From the Beginning
At the Northern District of Mississippi Bench and Bar CLE, Judge Kristi Johnson noted the importance of educating the judge about your case. She and Judge Taylor McNeel said that one of the things they had learned as new judges was how little was done to educate judges about what was actually happening in the case. Judges are often hearing cases involving legal issues that may be everyday to the lawyers but are novel to the judges. The lawyers will be intimately familiar with all the facts of the case, but judges are not. Judges Johnson and McNeel said they were regularly asked to decide objections on the fly when they had not been given all the contextual facts.
One way to help educate judges is to use technology from the beginning of your case. There is almost no cost to embedding pictures, maps, or timelines into a complaint. That's common in infringement and unfair competition cases. Andrew recently filed a real estate dispute case that included pictures of the property, a view of the property from Google maps, and the site plan. The difference in reading legal descriptions of property and seeing how an easement and parking lot is used in pictures is enormous. These kinds of pictures help educate the judge about exactly what is at stake and the context that underlies the dispute.
2. Understand the Technology You Are Using
Perhaps the most important thing about technology is proficiency. No matter the technology a lawyer is using, he or she must be proficient at using that technology. That means practice. The simplest tip we can offer is to call the clerk or court room deputy and go to the courthouse to practice using technology in advance of a trial. It is better not to use technology than to use it badly. Nothing is worse than the counsel who cannot display a document or needs to take a recess every time a video clip is used.
If you can afford it, we recommend having someone else sit in the hot seat and run the trial technology. This can be another lawyer, a paralegal, or an outside consultant. Having a second set of hands to work technology will make your presentation run smoothly. It will also allow you to focus on the trial and that second person to focus on technology.
3. Use a Mix of Technology Methods
One way to keep a jury's attention is to do something that is different. If you adopt technology, but only use the same method over and over for a five-day jury trial, there is a good chance that method will lose its impact. Using a mix of PowerPoint, ELMO, flip charts, video, and animation is more likely to pique the interest of the jury. The more interested the jury is in what you are going to show them, the more likely they are to pay attention.
This technique is also a good way to use technology on a budget. There is an ELMO in most court rooms. Flip charts are very inexpensive. Your Microsoft license probably already includes the right to use PowerPoint. If opposing counsel is using Trial Director or other specialized software, your mixed use of technology can demonstrate all the different ways you are presenting the facts as opposed to using a single fancier piece of technology.
As you use the different technologies, think about the best way to deploy them. For instance, instead of having your expert create a PowerPoint it is probably better to have them write and diagram on a flip board. This creates the impression, true or not, that it is the expert giving a real time opinion as opposed to simply parroting a pre-made presentation. That low-tech presentation will likely be more persuasive than a high-tech presentation that seems too canned.
4. Videotape Depositions When You Can
In the immortal words of ABBA, this tip is all about "Money. Money. Money." There is nothing more effective than a video of the opposing party confirming the important facts or telling contradictory stories. This is the big reveal of so many police procedurals. Videotaped depositions give lawyers a huge advantage. However, we understand that money is the driving force behind depositions that are not videotaped.
In an ideal world, every deposition would be videoed, and lawyers would always be able to have clips ready as impeachment for every trial question. Even the biggest cases have budgets though. Using dollars to video the most important depositions can be critical.
In Mississippi state courts, there is also a cheaper method. Mississippi Rule of Civil Procedure 30(b)(4) allows for depositions to be recorded by a variety of means. Unlike in federal courts, an attorney can record a deposition himself or herself. Attorneys do not even need expensive video equipment but can record the deposition with a smart phone or the Zoom recording function. These kinds of recordings will not be synced, but when money is tight this may be a good option.
5. Don't Rely Too Much on Technology
HBO's Last Week Tonight usually opens with a skewering of some company, person, or event. We guarantee that John Oliver and HBO are better at telling stories than anyone reading this article. When Mr. Oliver tells his story, he makes eye contact with the viewer. He tells his stories just like a trial lawyer should.
Technology cannot be a substitute for old fashioned storytelling. Like John Oliver, use video clips, diagrams, and documents to support your story. Do not just rely on technology to tell your story. You tell the story and let technology be a tool to illustrate and provide support for that story.
An important related point is to only use technology when the technology fits the story. If you show a diagram to illustrate a point in your closing argument, do not leave that diagram up for viewing when you move to the next point. Leaving untimely visual aids displayed can distract from your presentation as jurors may be reading the diagram instead of listening to you.
6. Don't Rely on the Goliath Metaphor
A Pew research survey conducted this year says that more than a quarter of Americans under 30 years old get their news from Tik Tok. In preparing for our CLE, Judge Jordan asked his clerks what is the worst mistake lawyers make with technology? They told him it was lawyers saying the big bad company was going to use technology while the poor wronged individual did not have access to that technology.
Jurors know what technology they use at home or in their offices. They expect every lawyer to be able to competently show evidence in a meaningful way and to illustrate important points. No matter your budget or the value of the case, you must be able to use available technology to support your story.
Most cases are won or lost on their facts. Putting forth the evidence that proves those facts is a litigator's job. No technology can replace looking a juror in the eye and truthfully and earnestly summing up those facts. Technology is a great way to tell stories though. In 2023, minimum competency means learning to use technology to tell your client's stories. We hope these tips help you do just that.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
