Amaris Elliott-Engel, BridgeTower Media Newswires
After one of Harris Beach’ clients took over paying the premiums of a New York woman’s life insurance policy as an investment, he was facing trial in South Dakota over who owned the policy and was entitled to $10 million in death benefits.
Meanwhile, all of the witnesses to a probable fraud of backdated trust documents were in New York. Getting them to South Dakota so the jury could assess their credibility was going to be a problem.
Presentation software that assembles documents, transcripts, video and other visuals was the solution, says Douglas A. Foss, a commercial litigator at the firm who is co-leader of its business and commercial litigation practice group.
Software like the LexisNexis’ Sanction product Harris Beach uses allows litigators to seamlessly flit between highlighting key portions of documents in the case to videotaped testimony with closed captioning embedded in to the text of emails, Foss says.
Trials, arbitrations and arguments over motions never go as planned, and sophisticated presentation software lets lawyer adapt on the fly to present their evidence to judges or juries in a way that will make it more accessible and understandable, Foss says.
“It’s really like a Second City humor skit,” Foss says. “They’re making it up as they go.”
This type of technology gives the ability to present information that is not written or can’t be explained, Foss says.
Scott L. Malouf, a Rochester solo practitioner who specializes in social media, says that the next step in presenting evidence in the courtroom is going to figure out how to replicate users’ experiences interacting with devices like Amazon’s Alexa or the Waze traffic app in the courtroom.
“When we talk about technology in the courtroom, the most interesting question for us and the one we can best serve our clients by answering is what technology do they use in their daily lives?” Malouf says. “And if something does come to litigation, how do we recreate that experience in the courtroom?”
Additionally, while technology is now available to depose people remotely and bring that into the courtroom, Malouf says the next frontier may be allowing people to testify remotely in, say, a products liability case involving someone living in the Western District of New York and injured by a product made in Asia and sold by third-party sellers in Asia.
While the legal profession has traditionally taken the position that the best and most competent evidence is having a witness testify in person, remote testimony could be a solution when “everybody who knows something is in another part of the world and do you want to pay to bring them to Western New York?” Malouf says.
U.S. District Court Judge Elizabeth A. Wolford of the Western District of New York says that one of the challenges for the judiciary to adapt to advances in technology is how it is constantly changing.
It is a poor use of public resources to invest in technology that will be obsolete in 10 years, she says.
Wolford notes that the technology in terms of evidence presentation has become very sophisticated. For example, she has presided over a couple of trials where a cell phone expert has testified about a map of the crime scene overlaid with a map of cell-tower coverage.
“Trials can be very tedious,” Wolford says. “You want to keep jurors interested. One of the ways to do that is to present with technology.”
But if a client can’t afford to pay for up-to-date technology or the technology isn’t going to work instantly and seamlessly, Wolford thinks it is better to not use it at all and use traditional demonstrative techniques. She recalls one attorney who by just making notes on a large piece of paper on an easel kept the jury captivated during his oral argument.
Trial attorneys and trial judges have long complained about the “CSI effect”: jurors expecting that the technology they see on TV will be available in real-life cases, Wolford notes.
But technology has advanced enough so that the CSI effect has diminished somewhat, says Jeffrey A. Wadsworth, a partner at Harter Secrest & Emery in Rochester and a litigator who practices in the areas of antitrust, intellectual property and government/internal investigations.
“Technology in the courtroom has accelerated a lot in the last decade,” Wadsworth says. “We’re probably closer to what you see on TV than it used to be.”
While the technology itself has accelerated, approval processes for its use aren’t always keeping pace. Harris Beach associate Kelly S. Foss says that it can take weeks for the courts the firm practices in to approve the use of various technology. She hopes that courts will become more comfortable with the use of technology so there are less bureaucratic hoops to jump through to use it in the courtroom.
“As litigators, we’re in the business of persuading,” Kelly Foss says. “When things go slower, juries become irritated at the delay and they’re not persuaded. We need to be able keep their attention. We need to make the facts easy to understand. We need to be able to say, ‘Let me show you,’ rather than, ‘Let me explain.’”
Wolford says another area where courts should be advancing is opening up the courts to the public through social media and the use of cameras in the courtroom. Judges need to follow the relevant ethics rules, she says, but adds that such openness can benefit the system.
“The judiciary needs to explore ways to try to work with social media to be as transparent as possible,” Wolford says. “If the public doesn’t know what you’re doing, then you’re going to have trouble to have the public serving as jurors.”
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Amaris Elliott-Engel is a Rochester-area freelance writer.
