Are Technophobes Negligent?
Is a technophobe litigator who fails to take advantage of courtroom technology negligent? Can a litigator’s failure to use courtroom technology amount to negligent breach of duty when the case fails?
Why not?
We expect professionals to be aware of, and use, the most modern of methods. We most certainly demand this of doctors.
Imagine an old heart surgeon refusing to use current technology, preferring to launch into open heart surgery the way it was done in the ‘old days’. The doctor might rationalize it this way, “well it was good enough to operate on hearts without modern technology in the ‘60s and hearts haven’t changed since then”. We all know what would happen when that operation is botched. The cry of negligence would ring in every paragraph of the statement of claim. What is more, the College of Doctors would investigate and castigate.
So why should it be different for a lawyer who spurns modern courtroom technology and loses the case?
The difference I suppose is proof. Where the doctor’s botching is almost self-evident, the lawyer’s botching is almost incapable of proof.
Since jury’s deliberations aren’t open to scrutiny we never know what drives them to make a decision. It is a complete mystery as to what tipped the balance to decide one way or the other.
While judge alone trials have the advantage of reasons for judgement, it is not really possible to read the subconscious mind. What in the presentation of the case really affected the judge? Would the use of courtroom technology have made the facts and argument more persuasive?
American lawyers are quickly coming to the conclusion that the use of courtroom technology to tell their side of the litigation tale can, and they believe does, tip the balance. In short many US attorneys believe that the better technology wins the day.
There is nothing directly scientific to support this belief. It appears to be based on experience and intuition.
While there may be no science behind these views they do make a lot of sense.
Today’s juries (and judges) are drawn from a very modern society, very unlike the “Leave it to Beaver” 1960s. On any summonsed panel of jurors the vast majority will be carrying cell phones, many will be thumb typists with iPhones or Blackberries , and many will have been subjected to some form of PowerPoint abuse in their working lives. Virtually all jurors and judges will have a large sized flat screen at home which regularly displays the minutiae of the evidence presented on CSI-Wherever. In other words their lives are crammed with modern technology.
But when these same jurors walk into the courtroom they are transported back to the 1960s. They enter a no-tech place where they’ll be held captive for weeks, if not months. Most jurors dread being selected. The dread is only exacerbated by having to spend their time in a different century without the interest inherent in time travel, “Back to the Future” it is not.
So why do so many lawyers continue to rely on the old ways? Why do lawyers rationalize like the old heart surgeon, “well it was good enough to prove a case without courtroom technology in the ‘60s and the need for proof hasn’t changed”?
Is it fear? Is it added costs? Is it a misunderstanding of what juries or judges want?
Regardless of the reason, a lawyer who refuses to use modern technology is as negligent as the doctor who refuses to use modern technology. The only difference between the two when things go sideways? The lawyer needn’t be concerned about liability. No one will ever be able to prove that the case was lost because the lawyer refused to use courtroom technology.
NEXT TIME: Courtroom Technology for Technophobes.
I don’t buy it. The role of the litigator is to tell the story and persuade the trier of fact. Lawyers would be better off learning about storytelling and persuasive presentation first, before they feel compelled to layer on technology. Technology may only serve to amplify more fundamental skills issues.
There is no question that technology may have a place, providing a tool set that can improve the telling of the story. But is it really liability to fail to create a Powerpoint slide deck to tell a straight forward story? Are there not analog . . . er . . . analogs, like paper exhibits that can be used to provide the same visuals? Sometimes they just shove a plastic rod through a styrofoam head on CSI; it’s not all 3D computer modeling.
I remember a lawyer who told me that if you go to court planning to talk about 1,000 exhibits, you probably haven’t prepared enough. Complex cases aside, the story is probably the fundamental focus. Once that’s in place, technology may or may not enhance the telling. Doctors hit us with rubber mallets to test reactions, they jab us with fingers to see if our livers hurt. I can’t imagine it would always be a question of competence or even poor judgment to decide to stay away from technology.
I agree with David W that it’s about the story, not about the media – though in some cases the media can make the message.
I think there’s a stronger argument to be made about professional negligence and technology in the solicitor’s practice, where one needs the research and presentation skills that typewriters or word processors can’t take advantage of. For that matter the barrister will find technology more use to him or her outside the courtroom too.
On the other hand, maybe it’s just a matter of economic efficiency. We have seen technology enable small or boutique firms produce work at the speed and of the quality of Big Law. The race may be to the nimble, even tech-enhanced nimble, and the punishment for technopeasantry will not be from the discipline committee but from the marketplace.
Nils,
I have been thinking about this issue for years and recently put the pen to paper for the Quebec Bar in an article about technoethics. (It should be available shortly in the Développements récents en éthique et déontologie).
I share your point of view and would ad that there are two other causes, or should I say “justifications”, for lawyers not to use court technology:
1) Our inherent conflict of interest (for private practitioners): Lawyers still bill by the hour:
a) learning to use technology is not billable (I would think/hope);
b) technologies make us more effective…
2) Courts are not set up to accommodate technology.
With respect to the latter, I (and I know you do too) have been using what Justice Granger calls the Radio-Shack (sic :-)) courtroom for years in many different court without any issue. Furthermore, the Canadian Centre for Court Technology is working on it…
Here is a presentation I gave a couple of times and which incorporate Justice Granger’s slides with permission:
The radio shack court.
Dj)