Court rules on cell phone use in court from coast to coast

One of the many details to worry about when you're getting ready for trial is how to get permission from the court to bring in your smartphones, laptops, and other electronic devices. The National Center for State Courts has a great resource that can help you find the necessary information for a number of state courts. See this web page, "Cell Phone and Electronic Device Policies - Social Media and the Courts State Links".

The NCSC has posted links to state court policies on the use of portable electronic devices and wireless access in courtrooms.

So, for example Rule 122.1 of the Supreme Court of Arizona permits the use of portable electronic devices (laptops, cell phones, etc.) to retrieve and storage information, and to send text messages, but instructs that the devices be silenced while they are in the courtroom.

Rules posted for the Connecticut Superior Court by Judge Patrick L. Carroll III, the Chief Court Administrator, specifically permit the use of portable scanners for imaging documents in the clerk's office and printers outside of courtrooms.

The Local Rules of Practice for the Third Judicial Circuit for Harrison County, Indiana simply prohibit attorneys from turning on their smartphones: "No person, excluding law enforcement, or person exempted by the Court, shall take, carry, transport or possess any firearm or explosive device, in any area, in or adjacent to the Harrison County Courthouse, State of Indiana or in the Harrison County Justice Center in Corydon, Indiana. Additionally, cell phones, pagers, and other electronic devices, shall be placed in the 'off' position while in the Courtroom." See Ind. Harrison LR31-AR00-08.

More on Attorneys Struggling With Trial Technology

Here's a summary of part 2 of the conversation between Xact's Matt Verga, and Shannon Bales on the presentation of ESI at trial on the Xact Data Discovery First Chair Podcast . The Tip of the Night for September 12, 2020 discussed the first part of their conversation.

1. Hot seat trial techs need special equipment for electronic presentations. Laptops with better video cards are required for editing and presenting video files. Every trial tech should have a back-up laptop. During trial a laptop will be needed, since the first laptop will be subject to unusual demands, and there cannot be any interruption in the team's access to data. A switch is needed to go from one laptop to the next.

2. Big screen TVs, which are brighter and don't have fan noise, of 75 inches or longer are needed to display documents so a jury can read their text. A document should be easily seen from 20 feet away.

3. Bluetooth speakers should be obtained to use as a back-up to the a/v system.

4. A third party equipment rental vendor should be used, to ensure the hardware has been properly maintained, and also so an opposing party can't accuse your firm of using defective equipment on purpose. Costs can be split and service obtained without the suspicion of gamesmanship.

5. Someone should create a schematic of the courtroom before the trial begins. Ascertain the number and position of outlets in the courtroom. Gain an understanding of the presentation environment so you know how large fonts should be in PowerPoint presentations; how loud speakers need to be to be audible for entire courtroom; and if courtroom equipment will display colors accurately.

6. Trial Director 360 and OnCue are the two most widely used trial presentation applications.

7. PowerPoint presentations are linear - from one slide to the next. Trial presentation software allows for exhibits to be called up in any order, at any time.

8. Presentation software will allow video of deposition testimony to be called up by page and line number, and can be a very powerful impeachment tool.

9. Creating video clips is very difficult. Preparing clips in advance will allow them to be tweaked to eliminate silences, and reviewed to show the impression the witness makes. Making clips on the fly is very difficult.

10. Law firms should have licenses for trial presentation software so they can understand how it functions, even if they use a hot seat trial tech from a vendor. If a firm employee is used for trial presentations, it may difficult to keep them busy throughout the year.

11. A judge may have a kill switch system. These are very common in federal courts. In smaller courts it may be left to the trial tech to cut off video presentations.

12. Some parties may try to bring in equipment that will give them an advantage. For example, a 75-inch touchscreen monitor may be brought in which will be set up for their team's presentation but cannot be used by opposing counsel.

13. If you do have to help the opposing party get connected in the courtroom, you should make clear to the judge and jury that you are providing this assistance.

14. It may take as long as 30 minutes to confirm that your equipment is connected and ready to go in the courtroom.

15. Shannon recently worked on a trial at which $1B was at stake. The opposing counsel consisted of more than 20 attorneys. They refused to pay for a/v equipment leased from a third party vendor; didn't have a professional hot seat trial tech; declined help from Shannon's firm getting dialing into the a/v system; had nothing on screen for the first 2 days of the trial; couldn't get power cables for a newly configured system on the third day, even though they had a large office in the same city; and the opposing counsel tried to call up documents by Bates numbers rather than exhibit numbers.

16. Attorneys will always look bad if they have not practiced with the hot seat trial tech.

17. Even though images will usually not be created for Excel files produced natively, it may be necessary to create them for Excel files marked as trial exhibits.

18. Video should not be presented in a courtroom by someone who has not had experience doing so.

19. The hot seat trial tech should not be someone with other responsibilities.

20. There should be a project management life cycle just for the trial.

21. Be ready to place documents not available on the laptop on the ELMO or document camera. Shannon calls the document camera the most under-utilized piece of equipment in the courtroom.

22. Attorneys should be prepared to respond coolly with alternative ways of presenting evidence, if a trial tech can't bring up a document on the monitors.

Countdown to Trial

James W. Quinn and David J. Lender are partners with Weil, Gotshal & Manges LLP, who have both chaired the big firm's litigation department at different times. They have collaborated on a guide, Countdown to Trial, available on the Weil website here.

These are some key points made by Quinn and Lender that are good advice even if they are not entirely obvious to support teams with considerable trial experience.

· “no time is more critical for preparation of a successful jury trial in a complex case than the 30 days before trial commences—the countdown to trial . . . Trial lawyers have many things to do in that month. First and foremost, a massive litigation that may have millions of pages of documents and thousands of pages of deposition testimony must be distilled to a simple but thematic story for the jury. Paring down the case and focusing on only those facts and legal issues that really matter are crucial to a winning presentation. Among the host of topics a trial team must consider in the countdown to trial, three critical points should always be at the forefront:

(1) simplicity

(2) consistency

(3) credibility

Whether the issue is how many trial exhibits to have, which video deposition clips to use, or which witnesses to present and in what order, an effective trial team will present it all in a simple, consistent, and credible manner.”

In my own experience it's necessary to spend at least a month preparing for a trial. Keep in mind that the team is working towards preparing a very direct and clear message, and will not want to get lost in the weeds.

· “Nothing can damage your credibility more before a jury than waiting for exhibits to be located, especially as unexpected changes occur ‘on the fly’ during a cross-examination.”

It's crucial that there be no delay in presenting exhibits - whether on the laptop of the trial tech in the hot seat, or from the hard copy files that a paralegal has on hand in the courtroom. Stay focused on the witness examinations and make sure there is no digital lag or scrambling through files.

· “Put the most important exhibits in the first 25 slots of the trial exhibit list, assuming the court you are in will permit pre-marking of exhibits. Some counsel put their exhibits in some other order, such as chronological order, anticipated order of presentation, or alphabetical order. This is a mistake. A trial team will appear more organized if it is constantly referring back to exhibit 1 or 2, as opposed to exhibit 267 or 388”.

Different categories of documents may be assigned different number ranges on an exhibit list, but testimony may be elicited more smoothly if the attorneys, judge, and trial tech can easily recall 10 or 12 documents by exhibit number which are used for multiple witnesses.

· “There is nothing more damaging to a witness’s credibility than when he or she says one thing on the stand, and then a second later, the jury is shown a video of that witness saying exactly the opposite.”

· “The most powerful depositions played to the jury are single admission clips, where you identify who the witness is, why the witness is important, and then play the admission for the jury. Try to limit the video to 5 minutes if possible, and it should almost never be more than 15 minutes. Some counsel play hours and hours of videotaped deposition during trial. This tack is not persuasive, and such videos are largely ignored. It can also undermine your credibility before the jury.”

Don't turn down the lights and play back clips of deposition testimony without comment. Have a cheat sheet of video clips that can be pulled up as needed for impeachment.

· “In most cases, we believe that direct examinations should last no more than an hour (and preferably less) and focus on a handful of core issues. They need to have a beginning, which identifies who the witness is and why he or she is important to the story; a middle that lays out the core factual testimony; and an end that culminates in a key point. We have been involved in many trials in which an adversary uses too much time with a witness and fails to make crisp points during the examination, leaving the entire courtroom to wonder what points the witness was trying to make. These types of rambling exams are easy to undermine with a pointed cross-examination because the jury will easily understand the purpose of the cross, unlike the direct.”

· “Most complex cases involve presentations that use technology, such as Trial Director or Summation. Although generally it is best to have an associate who has lived with the case be responsible for running this technology during trial, it is critical that whoever is responsible for this task be familiar with the facts and core themes of the case. . . Many trial teams hire an outside consultant to be responsible for running the technology system in the courtroom. This is a huge mistake, unless the consultant becomes fully integrated into the trial team and learns the case as well as any other team member.”

I haven't seen many associates operating Trial Director, but Quinn and Lender make a fair point. Attorneys will often not take the time to learn how to coordinate with a trial tech, and need to recognize that they will not be able to pull documents by referring to them by other than the exhibit number.