Litigation Support

One of my favorite things is being on a CLE faculty with a great judge. Fairfax County's Chief Circuit Court Judge Dennis Smith is a born audience-pleaser and a very effective teacher. Earlier this week, he offered a sampling of courtroom technology tips which are shared below:

• The fact that you know how to annotate screens using high tech equipment is not helpful when you haven't trained your witnesses and they are flummoxed by annotation.
• You might be able to run a simple PowerPoint by yourself, but the average attorney should try very little else. They become distracted by technical problems, they lose focus, and they frequently manage to portray themselves as idiots to the jury. One audience member cheerfully confessed that he had been in Judge Smith's court when the major tech problem that developed was resolved by taking a lens cap off.
• One of our faculty had brought what he thought were some really good PowerPoint courtroom slides with him, but the judge roundly disagreed, saying that if a vendor had shown him these slides, he would have sent the vendor packing. Simple is best. Don't have small text. Don't have lots of boxes that give the jury no clue where to look. Don't overuse the technology. In one case, the judge noted that a very large (over $2 million) verdict had a lot to do with a very large call-out from some scribbled meeting notes discussing whether or not to adopt a particular product. The author had listed pros and cons. One of the cons was "increased legal liability" - that enlarged section of the note was shown at four strategic points during the trial and made quite a impact.
• In Virginia, Judge Smith said counsel will generally stipulate with respect to the use of most electronic evidence - the notable exception being re-creations of events, which is almost universally challenged. Virginia remains very cautious about the admission of such evidence. In the case of videos, no video will go up without both sides' consent - otherwise, Judge Smith will rule before the video is shown in open court.

The entire faculty was taken by surprise when the judge noted that automatic recording will be coming shortly to our courts, with fees charged to procure the discs - thereafter, counsel can use the disc or have a court reporter produce a transcript. He also noted that there have been no fees associated with the use of our current court technology - but that they may be changing in the future.

Privately, I mentioned to the judge that a Wyoming judge had told us during a CLE that, as a condition of probation, anyone with a Facebook page must agree to "friend" his or her probation officer with no restrictions as to what the officer can see. To my surprise, that is apparently beginning to happen in Fairfax County has well. The many legal implications of social media continue to astound me.

Thank you Judge Smith for adding to our compendium of courtroom technology tips!

E-mail: snelson@senseient.com           Phone: 703-359-0700

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