Max Headroom Esq: Zooming to Trial 

The advent of virtual court makes me wonder how trying a case to a camera–and watching it unfold on a screen–changes the zeitgeist of the trial? In some ways, nothing changes. The rules of procedure and laws of evidence remain unaffected. The parties put on their case, admit their exhibits, examine witnesses, etc. While the mechanics differ, the basic premise of the trial remains. What will change, though, is the physical reality of the event. We are entering the era of disembodiment. Rather than using our bodies and all of our senses, our advocacy will be confined to the visual and aural; we will become Max Headroom instead of Clarence Darrow. 

What we lose…

The power of staring into the eyes of a witness on the witness stand is inestimable. Will it be the same on the screen? I question whether our intuition will work virtually. Will we lose the ability to redirect a wayward witness (using the traffic cop hand up, for example)? Cross-examination will likely become more challenging (although witness stonewalling will literally be “in your face” obvious). Direct examination will also feel different. Will our ability to tell the story through our questions remain? Will we be able to maintain a natural conversational tone? I don’t know the answers to these questions yet. But time and practice will soon tell us. 

But what we may gain…

Some things may improve. Trials may shorten. And lawyers may be discouraged from throwing surplus exhibits at the trial judge. It will be easier to use demonstrative or substantive exhibits when examining the witness. Using a deposition transcript to impeach based upon a prior inconsistent statement will become more immediate and impactful. The ability to use far away top-caliber expert witnesses becomes possible. And through this virtual medium, we can try a case from anywhere in the world. 

Preparation.

With all that in mind, will the methods of trial preparation change? Certainly any exhibits, impeachment materials, and demonstrative exhibits must be indexed for easy access with screen sharing. As described above, using demonstrative exhibits will become easier, and lawyers will profit through the creative use of these powerful exhibits. But to do so, the lawyer must master the technology for a seamless presentation.

The quality of the sound and the camera become important. Just as a lawyer seeks to have a powerful presence through his or her wardrobe and carriage, the same holds true with the quality of his or her technology and virtual image. Time and care should be spent on the backdrop, lighting, and presentation. Investments in higher quality technology will reward the advocate (and thus, the client). And preparation will include ensuring it works. Like having your car breakdown on the way to the courthouse, inadequate wifi becomes fatal. 

The Medium is the Message.

Regardless of the medium, the case still depends on the story. Who tells the more plausible story (and looks better when doing so) usually prevails. The trick will be to learn better ways of telling the story using this new medium. In his 1964 book, Understanding Media: The Extensions of Man, Media analyst Marshall McLuhan proposed that the medium of communication rather than its message should be the primary focus of study. How can we use this particular medium to better tell the story? It is here that we must focus our attention rather than reimagining trial advocacy in its entirety. 

Instead of bemoaning this revolutionary change: embrace it, study it, and harness it to better represent your clients. We are entering a new era, and lawyers who “get the message” offered by this medium will quickly excel in the virtual world of Max Headroom. 

Published June 18, 2020

About the author

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Steven N.Peskind

Principal Attorney

To be successful, a lawyer must have insight into the whole human catastrophe and be able to effectively traverse the legal system. It is the intersection of these two disciplines that fascinate me. I have been a lifelong student of both human nature and the law, and have created this blog to help others following my path.

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