One of the things I’ve seen in my practice is how lawyers in general have a certain disdain for all but the traditional tools of the trade. Words on paper and live argument in court are accepted, some feel comfortable with a flip chart or chalkboard, the cutting edge practitioners may even go in for powerpoint or electronic evidence presentation and feel they are state of the art.
Yet, perhaps because of a my communications training before law school, or maybe because of my career as a journalist, I’ve always felt that this regimented, almost inflexible way of pursuing advocacy leaves much to be desired.
On one hand, I understand how attorneys are loath to try anything too new, too quickly. After all, our legal training tells us not to stray too far from precedent and our conservative natures argue against risk taking in courtroom technique, lest an experiment fail with disasterous consequences for both client and malpractice insurance carrier.
On the other hand, there’s the judge and the jury.
The judge is likely drowning in paper and buried in cases. In Los Angeles County, where I practice, I’ve listened to more than one presiding judge recite the litany of shortages: not enough resources, not enough judges, not enough money, not enough of anything.
The juries, for there part, don’t come to court to listen to oration. They are sitting there because they must, having been summoned, and as soon as they can will power up their cell phones, blackberries, video players and computers and get back to communicating with the world the way they are used to.
And we lawyers still bow, mutter aged incantations such as “May it please the court,” as if the jurist were glaring down from the bench under a powdered wig.
So, given all this, why are we prejudiced against modern communications in a modern courtroom? I could argue we are bound by tradition. Some might also argue we are chained by laziness. Whatever the reason, doesn’t it make good sense to break free from our traditions and study modern communications techniques with the same intensity that our forefathers (and mothers) studied the written word?
I would argue, it not only makes good sense, but rather, it is critical if our profession is to remain relevant in advocacy. We should be testing the legality of new techniques, prodding the court system into adapting to the communications habits of our current population.
There is no question that this movement is encountering resistance, not just among the bar, but also members of the bench. I had an experience in federal court recently where it was impossible to find out in advance if I would be allowed to present evidence by video, even though what I was offering was clearly within the federal rules and the courtroom had the proper equipment pre-installed and available.
Obviously, the judge must maintain control over the proceedings and rule on the admissibility of evidence. But the court must also have clear guidelines in place so that counsel can plan their case according to modern methods. After all, isn’t this all about orderly administration of justice?
Posted under Courtroom Technique
