Article Image
The Wonders of the iPad in the Modern Trial Law Practice

Monday, August, 5, 2013

I knew that I would use my iPad for business when I bought it, but I didn’t know exactly how.  I must admit that I was most compelled to buy it because “all the other kids were getting one.”  What is it, an overpriced e-reader?  No keyboard?  Only three buttons on the whole thing?


Well, I have since learned some of the many things a lawyer can do with an iPad in and out of the courtroom to make cases come alive. 


A little history lesson is in order.  I tried to be among the technological vanguard of lawyers using a computer back in 1987.  I had an Apple Macintosh.  My first Macintosh required me to switch 3½-inch floppy disks for programming versus storage, as it had no internal memory.  When I upgraded from 20 to 40 megabytes on my external hard drive I chuckled that nobody could ever use up a 40 megabyte hard drive.  Now I send emails that are half that size.


Nobody could figure out what a lawyer would do with a computer back then.  We could type on it, but none of us were as good as our secretaries.  Why waste billable time typing when we were paying somebody who could do it better?  A few of us curious computer hobbyists set up a crude Macintosh network, running our wires through the heating system at the old Charleston National Bank, and we began to share our calendar information.  We later learned that we could share our case and contact information on it.  New uses popped up every week.


Things have changed a little bit since then.  I marveled last week that I have more computing power within my reach, between my laptop, my iPad and my iPhone, than my entire 30-some lawyer firm had in 1989.  Just as we learned the many ways a lawyer could use a computer back then, I have learned the world of things a lawyer can do with the iPad.


As a trial lawyer, my job is to tell a story.  Some of us slog through our practices believing that our job is to talk about the law. We tell a story in such a way that the judge and jury will understand that the law should apply in our client’s favor.  Pictures bring the judge and the jury closer to our story.  One of my friends said that, just as Ken Burns was able to tell the story of the Civil War or baseball through still pictures, the ordinary lawyer can now tell a judge and jury the client’s story.  This is where the iPad helps.


Twenty-five years ago a lawyer was handcuffed to use only words and printed pictures to tell his client’s story.  We passed paper documents around to each juror, indicating some small section of the document to illustrate a point.  To use a picture we would have to show the picture to the witness, put the picture into context with a sometimes lengthy examination, and then stop all action while we passed the picture around to the jurors.  The trial became jerky and the jury became disengaged.


Depositions are written texts of something a witness said under questioning at some earlier time.  We often use depositions to show that a witness now on the stand has not been consistent with the story they later developed for trial. 


In former practice, when we used depositions to show past inconsistent testimony, we would listen to the witness’ current testimony, ask her if she remembered giving a deposition, allow her to silently read the deposition, and then ask if her new testimony was the same as her old testimony.  If we could make the argument that the testimony varied slightly, we might get to read the testimony into the record.  That would present some drama, but it was a very stilted presentation that didn’t invite engagement.


We also use depositions to preserve the testimony of witnesses who cannot attend trial for some reason.  Formerly, we would have an assistant or a courthouse employee standing in for the absent witness to read testimony aloud.  It was stilted and deadly boring.


Only lawyers who represented wealthier clients could afford to videotape a witness’s testimony, hoping to reveal inconsistencies.  After considering the cost of the court reporter AND the video specialist with his bulky equipment, well-heeled clients often joined those of average means in restricting their lawyers to reading deposition transcripts into the record.


My, how things have changed.  My 1.5 pound iPad has now become the centerpiece of a revolution in trial presentation.


Let’s start with what happens before trial.  Lawsuits sometimes involve dozens of witnesses.  It can be difficult to put a face with a name.  When I go into a deposition, I can take a picture of a witness with the iPad, simply to associate the name with the face.  I take notes on the iPad using a stylus and the app, Notability.  Whenever I leave the office, if I have my iPad, I have my notes from each deposition.


Court reporters today always deliver the deposition transcript electronically, as well as on paper.  I download those to the iPad so I have every deposition we have taken for each case at my fingertips.  I can highlight those depositions for use at trial. 


I don’t need to spend up to two thousand dollars for a video specialist to record a witness’s testimony.  Instead, my office assistant can video record the testimony with a laptop and a $40 camera attachment like many of us already have at home. 


With a little homework, using the app Trial Director, I can show the video of the witness’ earlier testimony on a big screen.  The average lawyer can learn how to use split screen to show the witness and his printed highlighted deposition testimony at the same time, enlarging certain text for more emphasis.  I can show a picture of each landmark described in testimony as the witness takes the court through the event.


Showing a witness making an inconsistent statement on video makes a dramatic and powerful presentation because it allows the jury to see the facial expressions, body language and dramatic pauses the witness used when he made the earlier inconsistent statement. 


Using Trial Director, I no longer have to go through the cumbersome practices of the past to display an inconsistent statement to the jury.  I can transmit what I see on my screen to a large screen for the jury simply by using a small $100 Apple TV device, a $50 router exactly like the one you have in your home, and my iPad.  There is no need for an Internet connection at the courthouse. 


Traditionally, I would attend a pre-trial hearing with boxes of documents in tow, not knowing which of those documents I might use, and perhaps only using enough to fit a very small folder.  With the iPad, I can attend a pre-trial conference carrying a very light load, knowing that I can have all of the documents in my entire file at my disposal in its memory. 


At the hearing, when I argue motions concerning witnesses, I can show the court the testimony the witness gave at deposition, instead of being restricted to the dry deposition transcript to make my point about a witness’ testimony without bringing an assistant to handle video chores.  Search features allow me to find keywords throughout the entire file, or within any single document I may wish to use.  I am prepared with every document I might need, no matter the subject of the argument at the moment.


We use different tools at different points in our argument.  When I am setting the agenda for the hearing, our argument is linear.  I can use the app, Keynote, which operates in a manner very similar to PowerPoint, to make a prepared presentation. 


If I am responding to an argument that is unanticipated, though, I can use Trial Director to choose between any number of exhibits.  If the subject calls for it, I can show a video of an expert demonstration.  I can show pictures of a place where an accident happened.  I can take the court on a drive along the highway where an accident occurred, if I have prepared that type of exhibit.


I usually represent defendants or insurance companies.  Because I represented those who certainly had more money than the plaintiff, for many years I was self-conscious about showing more technology than the plaintiff, fearing that opposing counsel would drag out a sympathy argument, talking about how the big bad company was trying to overwhelm the “little guy” with fancy technology.


Today, advanced technology is well within the grasp of the common lawyer.  Indeed, with the comfort that juries have with science and technology shown on television programs and in the news, juries expect the lawyer to use technology.  You shouldn’t promote yourself as a trial lawyer these days if you are not willing to spend what amounts to less than $2000 in equipment and software, as I have outlined above, to properly bring a case to trial.  It’s the same equipment you are already using in your everyday practice.


Like many other things in our lives, technology in the courtroom has probably advanced more in the past 25 years than it had in the prior 300 years.  It is impossible to imagine what the next 25 years will bring.


Elliot Hicks
Charleston, West Virgina