You’ve likely heard the story─the footwear motion heard round the world─where plaintiff’s counsel filed an actual I-kid-you-not motion asking the judge to compel defense counsel to refrain from wearing holey-soled shoes to trial. The claim was that defense counsel wore the shoes during all of his trials with the specific intent to casually prop one sole up during sidebars to show the jury he was “humble and simple, without sophistication.” With all the talk recently about technology at trial ─ vivid, interactive evidence, trial apps for your iPad, and so on ─ it got us thinking about what kind of impression all this glitz and glam really has on the jury.
We recently explored the power of 3D printed evidence. It seems these days you can (pretty quickly, easily and affordably) “print” an exact, to-scale replica of virtually anything - tiny, minute parts of complicated machinery, human body parts, scene reconstructions, you name it. Such evidence can be incredibly compelling. Ironically, however, in that analysis we compared the first version of “3D evidence” to the shoebox dioramas we all remember making in school. While 3D evidence is certainly intriguing and impressive, it makes us wonder whether it might be overkill. Is it possible, when juxtaposed with a holey-shoed attorney, crumpled tie and hat in his humble hand, that a shoebox diorama might actually be the piece of evidence that wins the case, purely because it’s simpler? We are all sensitive to the appearance of having six pin-striped suits sitting at our table when the other guy comes in with just his smile and a briefcase, but should we feel the same about technology? Can a fancy video animation come across as the sea of pin-striped suits in your corner?
Or, has technology become so engrained in our everyday lives that jurors expect it? They carry and use a phone every day that is one thousand times smarter and more efficient than the original IBM computer. Does the attorney who props an over-sized legal pad up on an easel and begins writing on it with a fat Sharpie look like your grandpa who doesn’t even know how to text? What were those special jumbo-dial phones that were specially made for senior citizens? Ahhh, yes. The Jitterbug. It’s tagline? “A simple cell phone made for those of us that grew up when phones were connected by wires.” When facing twelve twenty-something jurors, their smart phones buzzing in their pockets, is that necessarily a good thing? Or might they be thinking you’re packing a Jitterbug in your own wrinkled suit pocket and might that affect their trust in you in trying to present a case in today’s ever-changing, fast-paced iWorld? Is it still an advantage to be seen as “humble and simple, without sophistication?”
That may be hard to answer and will admittedly depend on a number of factors ─ the most important of which is likely the relative age and sophistication of your jury pool. But, whether to use technology at trial is not a decision you can make after the jury has been selected. You have to go with your instinct at the outset. While cost is always an issue (some trial technology consultants can charge up to $250/hour to sit every hour of trial with you just to handle those pesky rewind, replay issues), let’s cast that factor aside for the moment simply for the sake of debate. We’re curious how you view technology at trial these days. Some find technology can be helpful and persuasive. Others find it distracting and feel it interferes with their ability to connect with the jury. We always enjoy a good, healthy discourse. What’s your stance? When it comes to trial technology, are you geek or meek?