The digital divide and courtroom technology: can David keep up with Goliath?

• Author: Heintz, Michael E.

1. INTRODUCTION

   The federal judiciary recently embraced the technological revolution. Select courts are now equipped with state-of-the-art technology to aid in trial presentations. Before the judiciary made the improvements, litigants had to keep pace with the technological advancements themselves, and often at a great cost. One might think that the recent technological improvements made to federal courtrooms would have widened the gap between large and small firms where the available resources are vastly different, but that is not the case. In fact, the installation of new technology into courtrooms serves to equalize what would otherwise be a "digital divide" if the parties provided their own systems.

   Although large firms have greater resources than their smaller colleagues, those resources do not create an unfair advantage inside "Electronic Courtrooms" as some feared. In those courts that offer the new systems equally to both sides, it is up to each attorney to create an advantage by effectively using the available resources. As a result, Electronic Courtrooms should become the standard in federal district courts.

   In addition to their usual courtroom presentations, lawyers now have a growing number of technological choices in forming their arguments. They can present cases using computer-generated PowerPoint[R] presentations and witness videoconferencing. Light pens can annotate pictures projected digitally onto flat video screens in the jury box. Additionally, filing and serving all court documents can now take place electronically. In essence, a lawyer can dispose of a case, from complaint to judgment, without printing a single piece of paper.

   The implementation of this new technology makes case management easier and more efficient. Some believe that the influx of technology may give an unfair advantage to "deep-pocket" litigants. The trend toward using additional and expensive equipment in trying cases raises the question whether small firms and solo practitioners can compete with larger firms inside these new Electronic Courtrooms.

   Seventy-nine federal district courtrooms and five federal bankruptcy courtrooms are now using some form of new technology, whether electronic filing or new devices in the courtroom itself. (1) Although both federal and state courts are each installing new systems, this Note will focus primarily on the federal model and the advances made there.

   Part II of this Note introduces the technologies available to lawyers when trying cases in the Electronic Courtrooms. This includes the equipment physically used in the courtroom and hardware used outside the courtroom. This Note also provides a brief overview of the types of technologies available in a judge's chambers to facilitate caseload management. The technologies introduced are available to anyone who conducts a case in an Electronic Courtroom. Parties need not move special equipment into a courtroom to the potential detriment of the opposing party.

   Part III of this Note analyzes whether large firms have any advantage over small firms or solo practitioners in effectively using the new, increasingly available technology. This portion of the Note compares the actual use of technology by large and small firms, examines reactions from practitioners who used the new systems, and analyzes why small firms and solo practitioners are not disadvantaged when litigating in an Electronic Courtroom.

2. BACKGROUND INFORMATION ON COURTROOM TECHNOLOGY

   Several federal district courtrooms recently invested in new equipment to become cutting-edge "Electronic Courtrooms." Three of these courtrooms reside in the Northern District of Ohio and are assigned to District Court Judges James S. Gwin of Akron, Kathleen O'Malley of Cleveland, and David Katz of Toledo. (2) Further, Judge Peter Economus's court will come online in Youngstown, Ohio in the near future. (3) Additionally, the new courtrooms are open to any judge in the district. All of the Electronic Courtrooms are shared resources available to all judges who wish to use them. (4) Consequently, courts like the Northern District of Ohio are taking the lead in showing the legal community that technology and courtrooms are easily combined.

   The court as a whole may choose from three types of equipment when upgrading its courtrooms. It may elect to install hardware into the courtroom itself, use Electronic Case Filing ("ECF") to manage documents filed with the court, and/or use different technology as part of the internal workings of the chambers. (5) As the "bugs" get worked out of these three systems, lawyers should expect to see some or all of these additions become part of courtrooms across the country.

   1. Courtroom Technology

      Lawyers in the Northern District of Ohio are no longer limited to a simple poster-board and easel set-up. (6) Now, they may present their cases electronically through laptop computers and digital imaging cameras. Additionally, these courtrooms feature flat plasma screens, microphones, and headsets, for the benefit of witnesses, jurors, and spectators. A completely "wired" courtroom will include:

      * Multi-media presentation capabilities;

      * Flat-screen technology in the jury box, witness box, at each counsel table, the bench, with the court reporter, and courtroom deputy;

      * Videoconferencing technology for virtual courtroom testimony and for viewing depositions;

      * High-speed printing for video evidence preservation;

      * Video cameras located throughout the courtroom;

      * Real-time transcript sent to both counsel tables and the judge's computer;

      * Sidebar enhancement using a highly sensitive microphone and white noise;

      * Complete judicial override of any evidence being published to the jurors' screens from a "kill switch" at the bench;

      * Infrared wireless headsets for the hearing-impaired and language interpreters;

      * Evidence camera display with a light pen for annotating graphics (nicknamed a "John Madden style light pen"); and

      * Touchpad control over the entire system. (7)

      Finally, the Digital Evidence Presentation System ("DEPS"), housed in a lectern in the center of the courtroom, gives lawyers control over the systems available to them. (8)

      The DEPS serves as the primary tool in electronically presenting a case. From the DEPS, lawyers can control most of the presentation systems listed above, including the evidence camera for publishing information directly to the jurors' screens, as well as a light pen for annotating digitally presented evidence. (9) The lawyer may then print annotated images in the courtroom, for later use. (10) Finally, the DEPS houses a VCR system that includes freeze-frame technology. (11) An advocate can completely control the presentation of his evidence from the DEPS lectern. (12)

      In addition to presenting hard evidence from the DEPS, lawyers may plug their laptop computers into interface ports at the lectern and at each counsel table. (13) By integrating a laptop computer directly into the system, they can now use computer-generated presentations, such as PowerPoint[R] or other computer-generated evidence, when arguing a case. In fact, lawyers may use computers at both the lectern and the counsel table simultaneously; with one lawyer controlling the laptop while a colleague conducts the oral presentation at the lectern. (14)

      Although attorneys have significant control over the systems in the courtroom, the court has instantaneous override capability. With the touch of a button, a judge can turn off every screen in the courtroom, including the screens in the jury box and the large screen displaying information to the gallery spectators. (15) As David Cohen, Senior Law Clerk for Judge O'Malley, said when commenting on the judge's control over the screens, "If the juror's screens go dark without your foreknowledge, you should hope the problem is a power failure and not improper presentation of objectionable evidence." (16)

      Technology also allows jurors to participate more fully in the trial. In addition to the screens in the jury box, hearing-impaired jurors can request infrared headsets in order to hear the evidence better. (17) All of the key presentation points--lectern, bench, witness box, and counsel tables--are equipped with microphones; consequently, the headsets allow jurors to fully hear any speech in the courtroom. (18)

      When lawyers and judges converse on matters not meant for the jury to hear, the judge utilizes a special microphone at the bench during sidebars. When a sidebar occurs, the judge simply turns the microphone on, the court fills with white noise, and the court reporter, who wears a headset connected to the sidebar microphone, can hear and record the sidebar without relocating any of the reporting equipment. (19) All of the parties engaged in the sidebar can then speak in normal voices without the jury or witness overhearing the discussion. (20)

      The ability to examine witnesses through videoconferencing adds another dimension to the Electronic Courtroom. Two permanent cameras allow a video-conferenced witness or party to see the courtroom as though physically present. (21) In addition, there is a third, wide-angle, mobile camera mounted on top of a rolling television cart for positioning in front of specific individuals or the jury. (22) If the need arises, the mobile camera may be transported in order to accommodate a witness at a different location. (23) The testimony of a "virtual" witness can be displayed on the rolling television, or any of the screens located throughout the courtroom, including the 42-inch fluid plasma screen located above the witness box. (24) Additionally, the rolling television has split-screen capabilities, allowing the parties in the courtroom to see both speakers at the same time, on the same screen. (25) The videoconferencing technology is particularly useful when individuals, such as expert witnesses or incarcerated defendants/witnesses, can only be present at the proceedings with great...