Digital technology is an integral part of today’s legal industry. The last 10 years have been transformative for the practice of law with strides forward in everything from legal research to practice management to trial preparation. Data is even maintained in the cloud, a prospect about which lawyers used to be apprehensive. (Artificial intelligence may have taken over the “most feared” spot.)
Advances have occurred inside the courtroom as well. Trial technology pushes the envelope in an industry that tends to be resistant to change. For better or worse, the pandemic caused a shift to virtual conferencing, and the court system was forced to adapt. While there has been a return to face-to-face proceedings in recent years, virtual presentations appear to be here to stay.
Despite technological advancements, though, the core aspects of effective communication in the courtroom remain unchanged, and these key case presentation principles will not change anytime soon.
Today’s Presentation Technology
Jurors have adapted to new communication norms. In the courtroom, they expect to see the level of technology that they use in their everyday lives. On a basic level, this means that courtrooms nationwide are outfitted with Wi-Fi and often have their own presentation platforms. Social media posts are now being put into evidence and used to screen jurors’ predispositions.
Trial teams have begun utilizing more advanced technologies like 3D printing, thermal imaging, drone footage, and virtual representations to communicate the facts and science at the core of their cases. Software offering 3D images and demonstrative evidence made to scale on a 3D printer are now being used to educate and tell a more detailed visual story.
In the courtroom, jurors expect state-of-the-art graphics and animations. Current communication norms have produced juries with shorter attention spans and higher expectations. Nevertheless, lawyers need to find a way to reach them.
Ten Years of Trial Tech Advances
New visual technologies have made their way into the courtroom in the last several years, and a few of these advances have become popular. Therefore, it behooves attorneys to become familiar with the contexts in which these technologies may be appropriate and the potential pitfalls these advances can present.
1. Drones
Camera-equipped UAVs (drones) literally brought a new perspective when they arrived on the scene in the mid-2010s. Drone footage conveys height, speed, and movement with an eye-level vantage point, enabling the jury to experience what happened in a realistic way. Drones also offer an intermediate perspective between a less detailed satellite view of a site and a ground-level viewpoint.
Drone footage is particularly valuable in catastrophic injury cases involving a fall or crash, as well as environmental disputes covering large land areas. It puts viewers right at the scene, which may otherwise be too dangerous or inaccessible to experience in person.
Although it is easier to see an accident site, building, or property with a drone, there can be privacy or airspace restrictions enforced by geofence boundaries. It is important to work with a licensed drone pilot who is familiar with the aerial surveillance doctrine[i] and FAA regulations surrounding drone use.[ii]
2. 3D Animations, Simulations & Models
Animated 3D visuals can be appropriate for complex legal scenarios. They provide imagery that creates a more detailed and realistic representation of the underlying events at issue.
Computer-generated evidence in the form of 3D animations is generally considered demonstrative evidence. Such animations are often used in support of witness testimony and accident reconstruction. Simulations are considered substantive evidence based on scientific principles, usually in support of expert testimony. As an example, facial reconstruction using computerized 3D technology has become a forensic tool to identify unknown human remains. This method provides a scientifically supported visual picture of the appearance of the victim when they were alive.[iii]
Models can be created to demonstrate almost anything with 3D printing. These are also demonstrative exhibits that can be detailed and interactive. The model can be also used in evidence while preserving the integrity of the actual object or scene.[iv]
Models and other 3D visual technologies are used in personal injury and medical malpractice cases to explain human anatomy. They can display a discreet part of an engine malfunction in a product liability matter or demonstrate the amount of ore left in the ground in an active mine in a valuation of mineral rights. The applications are endless.
However, there are drawbacks to 3D printing, including that the technology is expensive to use, the printers consume a lot of energy, and the printing material (plastic) is not environmentally friendly. Also, using a 3D printer enables intellectual property infringement because producing counterfeit products is easier. There is also the larger issue of 3D production of untraceable, unlicensed weapons.
3. Thermal Imaging
Thermal (or infrared) imaging is a technology that turns heat signatures into visible light. Images and videos can be captured by an infrared camera for a wide variety of uses, such as medical diagnoses, detecting an intruder inside a building, locating construction defects, inspecting oil and gas pipelines, or evaluating manufacturing operations. Thermal imaging is used to assess the cause of action in construction defect cases, environmental cases, oil and gas litigation, and product liability cases. However, as with drone use, thermal imaging has some privacy implications that should be considered and may affect admissibility.[v]
In 2001, the US Supreme Court held in Kyllo v. United States that the use of thermal imaging by police officers to detect marijuana grow lights inside a home constituted a warrantless search.[vi] The standard that emerged from Justice Scalia’s statement in the Kyllo opinion was that “[use of] a device that is not publicly available” invoked 4th Amendment protections. This test has been subject to shifting interpretations as technologies— including drones— have become more ubiquitous.[vii]
Timeless Principles Behind the Tech
These technologies provide new avenues for jurors to visualize the evidence. No matter how advanced courtroom technologies become, though, some things will always hold true. The top two trial presentation principles that have not changed—and are not going anywhere anytime soon—are as follows.
1. The Story Is the Most Important Aspect of Your Case
Trial lawyers are storytellers who weave the facts of a case into the fabric of an argument. Technology adds texture to that fabric. It can emphasize, augment, and demonstrate your overall narrative. However, it should never overshadow the story.
The best trial presentations create a strong impression and contain reference points that jurors can easily consume. You want to ensure that jurors remember the factual details and recall every nuance of your messaging during deliberations. Just because the technology exists does not mean it suits your case. Use the presentation tools that best tell your story. Getting too flashy or too busy will confuse and overwhelm any audience. This is particularly important for virtual proceedings, in which screen sizes may be smaller.
2. Variety Keeps Jurors Awake and Tuned In
Offering variety to jurors extends their attention span, directing it to your case narrative. Sometimes it is about knowing when to turn off the technology altogether.
For example, say jurors have settled into your slide deck. You have a great blend of graphics. But if you suddenly click off the screen, face the jury box directly, and speak with that characteristic attorney passion, you will then have their rapt attention as you underscore your crucial point. Likewise, the classic pad of paper and markers can bring a lot of impact when serving as a contrast from your otherwise electronics-driven presentation. There is an art to finding that balance.
Looking Forward: A Technology Mindset for the Future
Given how courtroom presentations reflect technological developments, those who stay up to date with how jurors expect to receive information will be at an advantage. That means keeping a pulse on news outlets, social media, smartphone technology, and virtual conferencing—in addition to the litigation support trends that inevitably follow technical advancements.
Nevertheless, do not forget to respect those timeless principles. These case presentation axioms—the story reigns supreme and variety is paramount—are as relevant in today’s world of drone footage evidence and 3D animations as they were in the early years of trial technology.
A version of this article also appeared on Law360.com. Republished with permission.
References
[i] Wikipedia contributors. (2023, September 17). Aerial surveillance doctrine. Wikipedia. https://en.wikipedia.org/wiki/Aerial_surveillance_doctrine.
[ii] Small Unmanned Aircraft Systems (UAS) Regulations (Part 107). (n.d.). Federal Aviation Administration. https://www.faa.gov/newsroom/small-unmanned-aircraft-systems-uas-regulations-part-107
[iii] Carew, R. M., & Errickson, D. (2020). An overview of 3D printing in forensic Science: The Tangible Third‐Dimension. Journal of Forensic Sciences, 65(5), 1752–1760. https://doi.org/10.1111/1556-4029.14442
[iv] Id.
[v] Barlow, K. (2014, February 27). Thermal imaging gets more common But the courts haven’t caught up. NPR. https://www.npr.org/sections/alltechconsidered/2014/02/25/282523377/thermal-imaging-gets-more-common-but-the-courts-havent-caught-up
[vi] Scalia. (n.d.). KYLLO V. UNITED STATES. https://www.law.cornell.edu/supct/html/99-8508.ZO.html
[vii] LeFrere, J. (2023, October 20). Revisiting Kyllo v. United States’ publicly available technology test and it’s implication on drone. crimlawpractitioner. https://www.crimlawpractitioner.org/post/revisiting-kyllo-v-united-states-publicly-available-technology-test-and-it-s-implication-on-drone
