Trial advocacy in the modern world.

Byline: Daniel I. Small

In 1924, Clarence Darrow defended Nathan Leopold and Richard Loeb, the teenage sons of wealthy Chicago families who were accused of killing a 14-year-old boy. In what was called the "trial of the century," Darrow gave a closing argument that lasted for 12 hours. He succeeded in saving the defendants from execution. The closing was so popular that it was published in various editions for years afterward.

It may have been brilliant, but it sounds bizarre by today's standards. We live in a different world than 1924, or even 2004. A series of technological changes most notably, the development of television and the internet have revolutionized how we communicate with each other. In recent years, technological change has exploded. Facebook, for example, has more than a billion users.

Somehow, though, trial lawyers have largely lagged far behind. Three trends in recent years have dramatically changed how lawyers should approach courtroom advocacy.

The digital revolution

Developments in technology have profoundly affected the courtroom in multiple ways, good and bad. It is dramatically easier to organize and display evidence, and there is often more evidence (such as emails and texts) from which to choose.

Today's jurors are accustomed to, and expect, high-tech presentations and visual imagery. The idea of standing up in front of a jury, or any group of people, and just talking for 12 hours is unimaginable. No judge would allow it, and no one would be listening anyway. But talking for an hour, or even half an hour, without visual aids without letting jurors see any images (or hear any recordings) is just as out of date.

But beware of getting too caught up in the technology or too lazy to use it effectively. For example, just because you can show lots of documents, and show them quickly, doesn't mean that you should. Too often we see lawyers flashing too many documents across the screen too quickly, like a strobe light, losing whatever impact the documents may have had, and leaving the jurors far behind.

Using technology requires just as much judgment, strategy and common sense as old-fashioned paper, and maybe more. Having more options requires making more choices, which requires more thought and planning.

Short attention spans

We now live in a short-attention-span world, in which it is hard to focus anyone's attention on anything, and harder yet to hold it for any length of time. After all, if you can't say it in a...