Beware the Technological Terror You’ve Created

I love gadgets. I freely admit that.

As a kid, I suffered through life in rural Kansas where my choice of TV stations were CBS, NBC, and PBS (later, we got an ABC affiliate, and the local community rejoiced). If we changed between CBS and NBC, we had to adjust the rabbit ears and avoid standing to the right of the TV. There was regularity to our TV watching. Every Saturday at 7PM after dinner, we’d all sit down and watch “Hee Haw.” Coming home from school, I could always count on “Scooby Doo” (The non-Scrappy ones. Scrappy pisses me off.) and “Happy Days.” Tuesdays, I always planned for the 7PM showing of “Knight Rider.”

TV was planned then. When nothing but crap was broadcast, you found other stuff to do (we didn’t get a VCR until I was in late high school). Normally, the other activities were moderately productive or engaging, at least. Now, thousands of entertaining shows are available to me on demand–on a device I carry with me all the time. It is a constant potential distraction. The benefits of convenience are balanced by the constant threat of poor productivity.

Technology seeps into every aspect of life and profession. In law, we’ve seen plenty of this. Lawyers jump at any chance to get a technological edge. Many purchase new doo-dads and resolve to somehow integrate their functions into practice. Although, I think the practice should dictate what devices are obtained to make life a little easier. Call me crazy.

I’m sure every tech device has been somehow shoehorned into a law practice by an enterprising young attorney. Likely, someone discovered how to center their practice around the first generation iPod, the PSP, and the Epilady. It’s like Rule 34, only for tech in law practice. If there has been a tech device invented, someone claims to use it as the cornerstone of law practice. It may not work well, but they are jazzed at the thought of having the most tech savvy office in town.

Others are so enthused (or so desperate) by tech that they write whole books about it. Social media, using iPads, Twitter, cloud computing (whatever the hell that is), and apps have all been treated to whole shelves of books dedicated to showing how they are the future of law practice. If you’re looking to make the ABA (I am not a member) gush all over you, just write a book about some tech-squirrely-thingie. I’ve never bought one of these books, but I’ve paged through a few. They are an excruciating read. In one night, I could write a more interesting tome about how to harvest and catalog dingleberries.

You can choose to have a tech-centric practice, but, if you do, be prepared for a short drop and sudden stop. When it goes wrong, it goes really wrong.

Now, I’m not saying you should dedicate yourself to a chaste luddite life. If you find that a piece of tech can help you to communicate, organize, and better serve your clients, go for it. Just be able to answer these questions: “Will this help me serve my clients better?” and “If this tech system craps-out, will my clients’s be hurt?” If the answer to the first question is ‘Yes’ and the second is ‘No,’ enjoy your new tech.

Just be careful.

I’ll close with an anecdote.

A fellow attorney was lauded for his use of tech (particularly PowerPoint slideshows) during closing arguments. He used pictures and music to portray a very touching scene designed to get the finder of fact to sympathize with his client. In one case, he used it in a Involuntary Manslaughter case where the client drank, drove, wrecked, and killed the passenger in the car. The case was actually a negotiated plea for 2 years. The judge sentenced his client to 4 years. So, his client did the 2 years as negotiated.

He felt like he was on a roll, and a lot of folks complimented him on using a very emotional PowerPoint in his closing. As a result, his boss encouraged everyone to find ways to incorporate technology into their openings and closings.

He got a new client. The kid faced charges for weed and passing joints. He confessed. When he pissed, it glowed. He had a problem. Everyone could see that. He was pathetic.

The lawyer chose to fight the charges before a jury of military officer and noncommissioned officers. Eight of them. Most of us recommended the judge alone. We knew he’d probably give a year of confinement, but no punitive military discharge. Just long enough to get clean.

“Cut your losses,” we said. “Military juries get pissed about this stuff. Go with the judge.”

He didn’t listen. He wanted to make music. He wanted to extract emotion. And he wanted to try it on a jury.

His client was guilty. They all knew that. For sentencing argument, the attorney rambled for 50minutes, then presented a musical powerpoint as the finale’. The lights turned on after the song, and the jury’s faces told a simple story.

They were pissed.

Not even an hour passed for deliberations. 5 years, bad-conduct discharge. It was 3 years harsher than a guy caught with 35 child pornography videos some months earlier.

PowerPoint may be an amazing program, but it lacked luster that day.

The song may have told a story, but nobody wanted to hear the plot.

All that technology made things disingenuous. It made him look desperate.

It mean’t the client lost five of his best years. For him, it was a terror.

Let those electron pushers help you, but never give them control.

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9 thoughts on “Beware the Technological Terror You’ve Created

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  1. Was it entirely the fault of the Powerpoint? Most officers/staff non-commissioned officers I know are going to throw the book at a drug-user, regardless.

    (But hell yeah, it didn’t help).

    1. The PPT was the last event of a long, tedious, and repetitive closing argument. There were several problems, and one was the forced use of technology. Here, he thought he could jerk a few tears of sympathy with a sappy song and childhood pictures of his client. Instead, the tears were of pure anguish.

      I used PPT once. There were three slides, and each had one word to highlight the 3 main points I made. Even then, I hesitated because of the constant threat of tech problems. The key, however, is that I didn’t need the slideshow. It helped with emphasis, but I’d still be OK I the power went out.

  2. Look, it’s one thing to rail against the focus on technology to the exclusion of practice skills and judgment. And I will grant you that in your example, the use of Powerpoint in this case seemed both misguided and unfortunate.

    But technology is coming to the courtrooms – perhaps not criminal or military courts, but federal courts and state courts in more metropolitan areas. And if solo and small firm lawyers are not familiar with how to use it in their cases, they will be at a serious disadvantage.

    I have a solo colleague who is an experienced civil litigator/trial lawyer; he’s tried about 70 cases in state and federal courts over the course of a 20 year career. Right now, he is involved in multi-million dollar litigation against the largest firm in the state where he practices (I don’t want to get any more detailed than this). My colleague is tech savvy, but this big firm spent (in my friend’s estimate) nearly a half million dollars on tech exhibits and displays. My friend came out on the short end, but when he polled the jury, they said that my friend’s presentation and display (which also used powerpoint and electronic exhibits) simply wasn’t as smooth as the other side. As a result, my friend is now investigating other tech tools that will give him the same presentaton ability on the big firm’s budget. I don’t know if it was technology that made the difference, but my friend certainly isn’t willing to take that chance.

    Again, perhaps your blog targets lawyers who don’t litigate against large teams in big city court rooms (though I saw the federal court in Omaha this past summer and it has computer screens for each juror – it was a technological extravaganza!) But trial practice is changing on the civil side, and to suggest that it’s unimportant tool is a disservice and potentially harmful to clients.

    1. Doggone it, Carolyn, you missed the point.

      I’m not railing against the use of technology. I’m railing against reliance upon the same.

      The guy in my anecdote centered his case around the PowerPoint presentation. It guided his argument and was even the focus of his choice of forum. Much of his overconfidence came from others (particularly superiors) gushing over his use of tech. They should have gushed over his use of tech to SUPPORT his argument. His thought process was, essentially:

      1. I’m going to use a PowerPoint to really tug at heartstrings.
      2. I’ll choose jury instead of judge (more heartstrings to pull).
      3. How can I form my closing argument to lead into my PowerPoint?
      4. I’m going to spend a LOT of time preparing the PPT. After that, I’ll get everything else done.

      His thought process was so unbelievably flawed. It should have been…

      1. What are the ideas that I need to convey to the finder of fact? (what is the story they need to hear).
      2. Who would likely be more receptive to these ideas? (judge or jury).
      3. How can I support my ideas through direct/cross?
      4. How can I tie those together into a coherent argument?
      5. What things, such as tech or demonstrative aids, will assist in conveying these ideas?

      See the difference in focus? The problem I see is that too many folks fall for the intoxicating nature of tech. It’s addictive and gives an unbelievable high. I know.

      When I arrive in court, I have a laptop (sometimes 2), iPad, iPhone, and MiFi (this doesn’t include the stuff brought by my co-counsel). This is in addition to the tech already in the military courtroom, which is substantial (Have you seen the size of the defense budget in this country? Yeah, imagine using that bad-johnson to outfit a courtroom). I create searchable PDFs for all witness statements and pretrial hearing transcripts. Those allow me to quickly adjust cross examination–especially as it relates to prior inconsistent statements. I love it.

      But, behind me is a box (or boxes) containing files. They are all tabbed and reasonably easy to search for statements, evidence, etc. My client and co-counsel all know what is in the boxes and where to find it. Why? Because I don’t rely upon my tech, I merely use it to assist me to get from 90% to 95%. Granted, I must prepare to practice in varied courtrooms, from well-appointed ones at Ft. Hood to spartan accommodations in Kandahar.

      Those who rely upon tech must prepare for a “short drop and sudden stop” by utilizing redundant systems. Too many do not, and they are the ones who find themselves fumbling with some piece of tech in front of a jury with a pained look on their face trying to get electrons to flow in the correct directions. They are foolhardy, and foolhardiness never helps clients.

      As for the target of my blog, your guess is as good as mine. I write whatever the little voices in my head tell me to write. Most visitors to the site come to see what I’m doing solely out of morbid curiosity.

  3. Eric,

    Clearly, this colleague of yours used poor judgment. But was the tech really to blame? Aren’t there lots of trial lawyers who feel that their oratory skills make them invincible and who are also inclined to put on a show before the jury rather than focus on strategy?

    My concern with your post is that there are too many lawyers who have not invested in tech who may read your post and come to think that it isn’t important, and may do more harm than good. As you point out, there are other concerns with tech, including whether it might go down in the courtroom. There are issues of admissibility – if you use a computer-generated recreation of an event, will it be admissible? All of these are issues that lawyers have to consider. It’s lack of judgment and skills that is the source of the problem, not the tech.

    1. I think the heuristic provided makes it pretty easy for folks to figure for themselves (cut directly from my original post):

      “Now, I’m not saying you should dedicate yourself to a chaste luddite life. If you find that a piece of tech can help you to communicate, organize, and better serve your clients, go for it. Just be able to answer these questions: “Will this help me serve my clients better?” and “If this tech system craps-out, will my clients’s be hurt?” If the answer to the first question is ‘Yes’ and the second is ‘No,’ enjoy your new tech.”

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