By Brian Anderson
Valley Times

Sept. 10, 2000

Standing before jurors in what was the opening of his closing statements, Elgin Lowe eyed the sleek, metallic gray Toshiba Satellite Pro laptop propped atop a nearby table.

His muscles tight, his palms warm, Lowe, an Alameda County deputy district attorney, admittedly and obviously was nervous about his first crack at using a computer to help put someone behind bars.

The contraption with its white cords and black wires, his boss had told him, would make it easier to lure jurors to his message. The electronic doodads would help convict people like the 20-year-old accused rapist with the sullen face and hanging head slumped in a chair this day at the defense table.

Faced with a general population of jurors no more in tune than an MTV-soaked teen-ager, trial lawyers like Lowe are tossing out their posterboards pinned with evidence for PowerPoint presentations and other technology to gain an upper hand. With attention spans dropping as computer use rises, the door has opened to attorneys looking for new ways to tip the scales in their favor.

Compared with the imposing overhead project the defense had lugged into court, the prosecution's "ultra compact" Toshiba Data Projector appeared to give Lowe the electronic advantage.

"It scares me to death," defense attorney Eric Safire said during a break, referring to the equipment and, more specifically, how Lowe was prepared to use it.

Sparking the trend

Besieged by commercials, TV shows, music videos, the Internet and movies that flicker with dozens of images in an instant, the average person nowadays can fight off glazed-over eyes for only 11 to 15 minutes, research indicates. Remote controls keep television watchers surfing through hundreds of channels. Commercials break programming into snippets of information, giving viewers just enough to quickly digest before they slip further into couch-potato nirvana.

"You ask what people watched on TV last night and they say 'everything,'" said Nancy O'Malley, Alameda County chief assistant district attorney. "We have to have a way to keep those jurors engaged in our case or they will zone out, or they won't remember, and they won't pay attention, and at the end they won't retain the important information that you need them to retain to vote guilty."

Adding to the attention declination are thousands, maybe millions of news miners dumping minute-by-minute updates on willing and unwitting consumers alike. Electronic mailboxes at home and work bulge with "factoids" substituting for plain, old facts in a fast-paced world where "now" passes into "then" too quickly to notice the details. But the devil is in the details in courtrooms, where a suspect's guilt or innocence often is not clear cut and can be lost in a murky swamp of legalese.

"I believe in my cases -- complex cases that I do which involve white-collar fraud," said Dodie Katague, a Contra Costa County deputy district attorney. "Using (technology) made many of those cases end successfully, It certainly helped explain complex litigation easily to a jury."

That's not to say there weren't other motivating factors.

"One of the reasons (Contra Costa District Attorney Gary Yancey) decided to come on board is because a defense attorney beat the pants off us," Katague said. "I've been begging for years to get this LCD projector, saying, 'Let's get PowerPoint and this other equipment,' and they wouldn't do it.

"Then this defense attorney beat the pants off the prosecutor. and the next thing you know I got the approval to buy the equipment."

Additionally, computer phobias are being shed as easier-to-use programs become the norm in offices and boardrooms. Using computers at work or school is a probability these days rather than a possibility, making more people more comfortable, said Dave Rubin, a San Diego County district attorney, speaking to a summer gathering of California prosecutors in Pleasanton.

"Jurors think that when you go to an important meeting -- and a jury trial is a very important meeting -- that they're going to see something they see at work," Rubin said. "They all have expectations of how they are going to get information. Our jurors are highly visual and highly visually sophisticated."

New versus old

A box full of those sophisticated jurors sat patiently as Lowe pressed a key on his laptop computer. For a second, nothing happened, percolating a fear most first-time users lock into the subconscious.

But in an instant, the pale screen flashed bright with a blue background, the seal of the D.A.'s office and bright yellow lettering plowed through the darkened room, reflecting off some jurors' eyeglasses.

Pushing in from the right side of the screen, Lowe's presentation silently spoke volumes. Though not at the edge of their seats, jurors appeared dialed in as Lowe passed through slide after slide, explaining definitions of law and standards he believed they should consider.

Even the defendant, who understood very little English, stared up at the screen as an interpreter explained what it all meant.

About an hour after beginning his first foray into computer-assisted arguments, Lowe slipped back into his chair, and Safire jumped from his seat.

Stashed in a corner was a weathered, wooden podium Safire hauled in front of jurors before making a few remarks and heading for his presentation arsenal.

"I don't have the high-tech stuff that Mr. Lowe has, but I do have an overhead projector," Safire quipped as he lugged the machine onto the defense table. "We have learned that jurors are more responsive to visuals. If I didn't tell you enough, I want you to see."

Reminiscent of a high school or college lecturer, Safire pulled white paper backing from his short stack of transparencies. Spelling out for jurors in a standard black font only slightly larger than a newspaper's, Safire told jurors his client was innocent until proven guilty. Sentences were double spaced, but one or two jurors squinted and removed their glasses, wiping them with a loose sleeve as they observed from 20 feet away.

Relative reluctance

Old habits die hard. And for some lawyers, many of whom spent long hours and late nights studying the old-fashioned way in the dusty stacks of law school libraries, learning to use PowerPoint during trial is akin to starting from scratch. Proven techniques have been crammed into their legal toolboxes during years of practice, leaving newfangled gizmos wrapped neatly in their packaging.

"Some (lawyers) are obviously reluctant," said professor Frederic Lederer, director of the Courtroom 21 project at the College of William and Mary in Williamsburg, Va. "But every one of the second-year students here are, by curriculum, supposed to be learning how to use the courtroom technology in hands-on form. Which gives you an idea about what the future will be like."

Gleaned at least in part from Courtroom 21, a project that sought in 1993 to create the most technologically advanced courtroom in the country, researchers determined age is not a reliable indicator for who uses or does not use computers, Lederer said. Trial players on every level -- from attorneys to judges to jurors, from young to old -- have accepted computer-generated presentations, the professor has learned.

Still, others in similar demographics have frowned on the practice.

For some lawyers, using computers to help them accomplish what they believe they can do without them involves answering a simple yet fundamental question: What if it doesn't work?

"We have all these phobias about problems like hard drives crashing and stuff like that," said Larry Blazer, an Alameda County prosecutor who last week won a murder conviction using presentation software. "Most of the lawyers up here don't use it. I think a lot of people are really minimalist when it comes to trying cases."

Having a computer expert on-hand during his presentation and a backup disk available in case there were problems helped allay fears of a technological meltdown, Blazer added.

"I had some trepidation, because you always would like there to be some dry runs in an environment where the stakes aren't as high," Blazer said. "(But) the odds are pretty good that I'll use it in the future."

Indications from the prosecution side of the aisle in both Contra Costa and Alameda counties, however, are that deputy district attorneys do not have a choice. This is the wave of the future, district attorneys are saying.

"We will drag our attorneys kicking and screaming into the 21st century, and we will pound this on their heads so that they will use it," said Katague, who now heads the high-tech crimes unit.

It's a different story at the Alameda County Public Defender's Office, where supervising attorney Cliff Taylor said defense lawyers have used the technology for years. The transition from using word processing programs to presentation software mostly for courtroom arguments was a natural, he said.

"What I have to do now is get more attorneys using it," Taylor said.

In the courtroom, the buck stops at the bench. Gavel-wielding judges maintain final authority over who brings what into their immediate jurisdiction. Like lawyers, some judges resist requests to haul in computers, Lederer said.

"Some are particularly encouraging and welcoming, and some (think), 'Over my dead body,'" he said, again pointing out that age is usually not the key to figuring out attitudes toward tech use. "Most judges are at least receptive."

Through general observations and anecdotal evidence, Courtroom 21 researchers believe about a third of judges are high-tech pioneers, one-tenth will never allow it and the rest fall somewhere in the middle.

Alameda County Superior Court Judge Henry Needham, who watched as Lowe and Safire pitted technology against a more traditional approach, said almost anything that allows jurors to better understand proceedings is allowed in his courtroom.

"To me, it's just another way to show a jury a point in an efficient manner," Needham said.

The verdict

While possibly more efficient in practice, Lowe had taken a chunk of time away from his usual preparation for closing arguments to rehearse his inaugural electronic performance.

As jurors looked at photographs and combed over testimony for what was becoming the second full day of deliberations, Lowe could do little more than wait for a verdict. Did his quick-hit legal flash cards help convince jurors to side with him? Were they turned off by high-tech wizardry? Maybe that time could have been better spent re-examining the facts or developing an alternative statement.

Safire, meanwhile, bided his time in the main floor hallway of the Oakland courthouse. He had used some equipment similar to the deputy D.A.'s before, like in the million dollar civil case that had a "favorable result" for his law firm, he said. Would those tools again work their magic, this time with a not-so-favorable result for him? Was it time to consider more aggressive use of computers in the courtroom?

At 3:30 p.m. on the third day of deliberations, 12 men and women -- including the businessman with the suspenders and the older woman with the perfect posture -- strode back into the jury box. They had talked through the case for a dozen hours or so and had readied their decision.

The jurors, the foreman told the judge, were hopelessly deadlocked.

"In this particular case one attorney had PowerPoint and one had an overhead projector and it didn't make any difference," Needham said later. "The overhead projector was just as effective."

Technological tsunami

By most accounts, scripted, computerized presentations will one day become an obvious if not mundane addition to courtroom proceedings. Fresh-faced attorneys are bringing their new brand of litigation from law schools into the hallowed establishment of the legal world. At the same time, old-school lawyers, though not lining up to learn like third-graders on a field trip, are intrigued by the possibilities.

"This thing has captured my imagination," said Alameda County's Blazer, adding that his law school experience 20 years ago didn't include a stint with laptops. "It will evolve."

But to what extent? Will defendants one day be tried by robots? Could the day come when defendants are found guilty after jurors take in a two-hour DVD movie explaining the prosecution's case? Could a machine -- Trial-O-Matic, maybe -- be fed with facts and spit out a ruling?

"Human beings remain essential, and as far as we're concerned the defining element of the administration of justice," Lederer said. "It's a question of how we assist those human beings with appropriate technology.

"As far as we know, it will spread to where high technology becomes commonplace even in traffic court."

Trial technology will be such the norm, Katague said, that not using data projectors, high-speed computers and software that take jurors to a crime scene via their imaginations and a digital color photo will be considered incompetence.

"We believe that there is going to come a time that the California Supreme Court will say that an attorney who doesn't know how to use the computer, doesn't know how to use the computer to do research, doesn't know how to use PowerPoint, will be ineffective as counsel," Katague said. "We think that's coming up some day. Not in the near future, not until all the dinosaurs die, but we're planning for it."