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1 GORDON BERMANT: Thank you for that wonderful
2 introduction.
3 I can't imagine an experience more conducive
4 to humbling than to be before you now, having just all
5 of us heard these extraordinary trial lawyers come away
6 from advocacy for a moment and speak from their minds
7 and their hearts about all of this stuff that we've been
8 seeing for the last couple of days.
9 I don't think I have anything to say that they
10 haven't said more eloquently and effectively already.
11 But it may be that I can say some of the same things
12 with a slightly different perspective. And I'll be
13 lucky if I can do that much.
14 Yesterday, we learned by precept that the
15 famous or infamous Dr. Murphy is always over your
16 shoulder when you're working with technology.
17 You heard last night that a very long trial,
18 the Exxon Valdez trial, went off without a hitch
19 technologically. I suspect that may have been the only
20 trial in the history of trials where that was true.
21 This morning, Dr. Murphy shook my hand here.
22 I'm certainly not going to stand for the slander that it
23 was the fault of the Macintosh.
24 It's very clear that this courtroom that Woody
25 has breathed into existence is going to not only survive
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1 but succeed. It's going to succeed for several reasons.
2 One is Woody himself, a genuinely nice person in charge
3 of something that is not only effective, it's so unusual
4 that we tend to be very positively disposed to its
5 outcome.
6 It's going to be effective because he has done
7 exactly the right thing, he has put practice ahead of
8 theory.
9 Those of us who don't practice trial law but
10 make our living somewhat parasitically talking about
11 those who do correctly follow those who know what
12 they're talking about.
13 The role of social science, the role of
14 research, the role of academicism in this business is
15 not to lead, but rather to follow, to attempt to
16 conceptualize, organize, simplify the landscape for
17 those who come along subsequently, more or less like
18 being at the end of the circus parade with the large
19 broom trying to make the landscape a little bit neater
20 and easier to distinguish what you need from what you
21 don't.
22 There is something else I think that should be
23 brought out that is so much in the background here and
24 yet so important that we might overlook it. This is
25 happening in Arizona. And it occurred to me, as I
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1 thought about this, that Arizona has been an innovator
2 for more than 20 years in this kind of work.
3 Twenty years ago, I was involved in some
4 projects that brought to my attention the use of video
5 phone in Maricopa County to conduct proceedings between
6 the circuit court in Maricopa County and the local
7 lock-up.
8 Today, in Arizona, you have certainly one of
9 the most, if not the most, advanced kiosk projects in
10 quick court of any state in the nation.
11 On the federal side, the name, as we know,
12 everyone here knows Judge Richard Bilby. I know Judge
13 Richard Bilby in ways different than the way that you
14 know him. But I was directing the federal court systems
15 development for the systems that now populate almost all
16 of the federal courts between 1982 and 1986, and it was
17 at that time that Judge Bilby became the chair of the
18 committee of judicial conference of the United States
19 that was responsible not only for overseeing the
20 development of innovation but for going to Congress to
21 get money to do it. And it was Judge Bilby's political
22 acumen that led to the so-called judiciary automation
23 fund which allows multi year funding across the fiscal
24 years for the purposes of automation of the federal
25 court.
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1 That one innovation, perhaps as much as any of
2 the other more purely technical things, has been a
3 tremendous value to federal court innovation. Of course
4 you all know Judge Strand in Phoenix whose commitment to
5 technology in the federal courts stands second to none.
6 All of these are Arizona developments. So I
7 think it's not only appropriate, but somehow maybe even
8 a bit explanatory to find Woody's success here in
9 Tucson.
10 At this point, imagine a change of slide.
11 I want to talk about three ideas. Just three.
12 Number 1: There is a clear and obvious trend
13 toward the utilization of modern technology in
14 courtrooms and courthouses. This trend is inexorable
15 and inevitable, but its timing is unpredictable.
16 Predictions that in a year or two there will be monitors
17 in every courthouse in the country if only the judges
18 are smart enough to figure out what deep pocket clients
19 and vendors are to hit up for that, I think are a bit
20 premature.
21 And that is in part for the second idea, which
22 is that there is resistance to this trend. This
23 resistance is also inevitable. Whether or not it's as
24 immovable as the trend is inexorable remains to be seen.
25 I suspect that this trend will simply go along,
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1 different parts of the country at different rates and
2 different court systems at different rates with
3 different kinds of resistances, but whenever there is a
4 step forward and publicity about a step forward, there
5 will be a reactionary intensification of the resistance.
6 The third idea is that this courthouse that we
7 visited yesterday and others like it, the most obvious
8 one is the courthouse at William and Mary in
9 Williamsburg, Virginia,, some of you will remember a
10 courthouse of the future that was around 20 years ago at
11 McGeorge School of Law in Stockton, California.
12 So the future always seems to be with us and
13 then fades into the past. Something to remember,
14 because that McGeorge law school did not have any of the
15 technology of this one, but it was much more exploratory
16 and experimental in the way it shaped the physical
17 environment. That was what seemed to be important at
18 the time.
19 This courtroom reflects both the trend and
20 resistance. I want to talk about that a bit because I
21 think it's obvious how it reflects the trend and perhaps
22 not so obvious how it reflects the resistance.
23 Imagine a slide, anyone you like, that shows
24 your vision of the Simpson trial. No doubt you have so
25 many images of that running through your minds that it
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1 won't be difficult to do that.
2 For better or worse, the Simpson trial is
3 increasing public awareness of technology in the
4 courtroom. A key ingredient, a key point to remember,
5 there will be a confounding confusion between technology
6 in the courtroom as part of the infrastructure and
7 technology in the courtroom as it comes in for the
8 presentation of evidence, which itself is high tech.
9 So right away, there's a bifurcation of
10 issues. On the one hand, there's the issue of the
11 expert witness who brings in high tech equipment of some
12 sort to present something like DNA strips, where the DNA
13 strips themselves may be subject to a certain kind of
14 legal analysis. And just the way that those DNA strips
15 are presented graphically can be subject to some kind of
16 analysis.
17 So the medium, namely the form of breadth of
18 presentation, and the message: He did it because the
19 probability that anybody else has this DNA is probably
20 less than 1 in a billion are conflated and they need to
21 be separated out, because it's quite clear that you can
22 manipulate graphic presentations to highlight or
23 diminish any certain features of any presentation.
24 Now, there's high technology in the courtroom
25 confounded with legal issues. And I trust that's what
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1 the next speakers will talk about. There is a rich
2 variety of evidentiary issues that blend the technology
3 of the medium with the content of the evidentiary
4 message.
5 But not all technology in the courtroom is
6 like that, and that's what we've seen yesterday. What's
7 the best example? The best example of technology in the
8 infrastructure is real-time reporting.
9 Real-time reporting, whatever its virtues, is
10 more expensive than other forms of making a record and
11 other forms of bringing it back quickly into the
12 courtroom. Even vendors report that real-time reporting
13 is going to be 40 to 60 percent more expensive than
14 other forms of doing it.
15 Now, this is not anything other than a cost
16 question. And if there's been one thing that's clear,
17 it's that the advocates who have spoken here so far are
18 very sanguine about the funding of high technology
19 courts.
20 We heard yesterday: Don't worry about it very
21 much, Joe Cotchett said, because vendors and deep pocket
22 clients together will cooperate to make this possible in
23 any courtroom where it needs to be made possible. And
24 Robert Palmer seconded that view just a few minutes ago.
25 John Greacen tells us that there's a fellow nearby who
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1 has eight pages of examples of how this is being done.
2 So there does seem to be some kind of ground
3 swell of different ways of bringing various kinds of
4 technology into the court. I think nevertheless, from
5 my point of view, I think we will see both moving
6 forward and resistances to various ways of funding for
7 the very reasons that emerge in the session on issues in
8 court technology that we worked out at the group
9 decision center yesterday, where fairness to parties and
10 to people whose resources are limited was the very first
11 concern, at least in the group that I was in, group B.
12 Now, how might that work out? I give you an
13 example how it works out in the evidentiary setting that
14 I think is one of the best examples of high tech that
15 I've heard about so far. This is a case Stephenson
16 versus Honda Motors, Superior Court of California, 1992.
17 Stephenson, a woman, driving an ATV near Bedrock,
18 California, way up in the wild country, has a spill.
19 She claims the road, the trail she was on, was smooth,
20 and that this ATV inherently unstable, went over. Honda
21 should be liable.
22 By the time it gets close to trial, there's
23 been so much rain up in that area, that the erosion of
24 the road bed makes it impossible to go up and get a look
25 to see what the nature of the road is.
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1 But when money is no object, as it wasn't for
2 Honda, they could go back and look at geographical
3 surveys -- someone told me the official name for the
4 kind of surveys that go and take photographs of the
5 entire country, it was possible to find roughly
6 contemporaneous photos, very high grain density photos
7 of that area and blow them up and say: Look, it looked
8 very rough even then.
9 So then Honda sent a photographer to that area
10 who used stereoscopic photography at 10 foot intervals
11 to create stereoscopic images of that road, put that on
12 a 24 per frame per second projection and then got the
13 court to allow the jurors to wear the goggles that would
14 bring out the depth of this road. And the jurors were
15 blown away, because this looked like riding over the
16 craters of the moon.
17 No question that the woman had no business
18 riding that vehicle on that terrain at that time. She
19 lost.
20 Now, as was pointed out to you yesterday, and
21 as is very important to remember, the exact apparent
22 depth of this thing depends precisely on the width of
23 those camera lenses at the time the photos are taken.
24 Now, who knows how all that played out. Again, an
25 evidentiary issue. But simply an example that there was
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1 no way that plaintiff could compete by going out and
2 narrowing the gap, the intraocular gap that would have
3 allowed the jury to see a presentation where the depth
4 and the raggedness of the terrain would have not been so
5 apparent.
6 Okay. So when it comes to cost, the question:
7 Who are the beneficiaries? And even though to date, in
8 every example that I know of, there may be exceptions in
9 John's eight pages, every example that I know of, the
10 costs have been paid either by deep pocket clients or
11 vendors.
12 The question is: How long is that going to
13 last? Who is going to maintain that equipment when the
14 deep vendor client is long gone? Who is going to
15 maintain that equipment when the vendor goes out of
16 business, when that particular product goes out of
17 business?
18 Sooner or later people are going to have to
19 bite the bullet of public funding, one way or another.
20 Sooner or later, people are going to have to bite the
21 bullet of public funding. The free ride for the
22 courtroom and the taxpayer can't go on. Not even
23 getting to the question of whether it should, as a
24 matter of public policy.
25 How is that going to play out? There's a
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1 wonderful aphorism that's attributed to a woman named
2 Gloria Wasserman. I would be very grateful if anyone
3 who knows who she is would tell me, because she said
4 something very important and I have no idea who she is.
5 What she said was: Today's extravagance becomes
6 tomorrow's necessity. And that's exactly what we're
7 going through here.
8 Much of what we see in these trials is from
9 the point of view of the ordinary trial lawyer. It's
10 amazing how many trial lawyers are country lawyers;
11 you'd think nobody lived in the city.
12 From the point of view of an ordinary trial
13 lawyer, these are extravagances. But as time goes on,
14 it will be: My gosh, if you don't use this, you're out
15 to lunch. If you don't use this and your opponent has,
16 you may be liable for malpractice. A serious problem.
17 The extravagance becomes the necessity. When the
18 extravagance becomes the necessity, the politics are
19 mobilized to get everybody to pay for it because you
20 have to have it. It's necessary. So of course it's
21 going to be a public expense, it's a public necessity.
22 One could probably predict that.
23 I want to change gears briefly. Changing
24 gears, all of this technology has been focused inside
25 the courtroom. That's only half of it. It's only half
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1 of it. What about the technology of bringing the
2 courtroom to the world? That's what's really moving
3 things now. What's moving things now is Court TV.
4 And Court TV and CNN and the network coverage,
5 largely of the Simpson trial, but not totally, are
6 bringing messages about technology in the courtroom to
7 millions of people in ways that are totally out of our
8 control.
9 The little quick time video clip that I'm
10 heart broken that I can't show you is a clip from Court
11 TV, a 20-second clip, that shows one of the police
12 witnesses being cross-examined by a member of the
13 defense team at the Simpson trial and the camera pans
14 slowly from the witness across to the defense attorney.
15 And in that sweep, there are approximately
16 eight monitors. The courtroom is littered with
17 monitors, and all the paraphernalia. And you'll note,
18 there's this little box that's next to the witness stand
19 that seems to be illuminated as if from some submarine
20 cavern. There's this kind of green. You know this
21 luminescent thing next to the witness? That's a
22 monitor. It's all over the place.
23 Now, people aren't thinking about that.
24 Except a friend of mine who doesn't work in this area
25 called me from across the country to say: You've got to
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1 watch the Simpson trial right now. I said: Why? She
2 said: Judge Ito has totally lost control to the
3 technology in the courtroom.
4 I don't know whether that's true, I don't know
5 whether that's false. The point is, here is somebody
6 who doesn't work in this area who was so impressed by
7 the overwhelming amount of stuff in there, that she felt
8 somehow better after having called me to talk about it.
9 Now, what is this? This is another example of
10 the classic case that still is going to drive the
11 jurisprudence one way or another.
12 Estes v. Texas, 1964. Now, you'll remember
13 that because in the pretrial phase, there was so much
14 press coverage that it was considered so disruptive that
15 it got all the way to the Supreme Court and the thing
16 was overturned.
17 Now, all of that kind of public information,
18 all of that presentation of court material and all the
19 material that goes around it sets the context in which
20 expectations about courtrooms are going to be set.
21 Now, here's Chief Justice Warren from Estes v.
22 Texas in his concurring opinion: The courtroom in
23 Anglo-American jurisprudence is more than a location
24 with seats for a judge, jury, witnesses, defendant,
25 prosecutor, defense counsel and public observers; the
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1 setting that courtroom provides is itself an important
2 element in the constitutional conception of the trial,
3 contributing a dignity essential to the integrity of the
4 trial process.
5 Now, that is the emotional and constitutional
6 core of existence, because at every stage the whole
7 presentation of the process should be re-evaluated to be
8 sure that the dignity essential to the integrity of the
9 trial process is not compromised. Because there's more
10 at stake than compromising it for the parties in that
11 litigation; more than that for at least one of the
12 parties, the loser. There's the process itself that can
13 be compromised through unwitting, willy-nilly
14 application of disruptive process of which technology is
15 one source.
16 So the dimensions of resistance, cost,
17 control, fairness to the parties and the quality of the
18 proceedings.
19 Now, at the same time, we have a vision of a
20 technological future where everything is very neat.
21 Justice Clark, writing for the court in
22 Estes v. Texas, wasn't prepared to bank on those future
23 earnings. He said: It is said that the ever-advancing
24 techniques of public communication and the adjustment of
25 the public to its presence may bring about a change in
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1 the effect of telecasting upon the fairness of criminal
2 trials.
3 Just read in for his telecasting any court
4 technology you like; the logic holds.
5 But we are not dealing here with future
6 developments in the field of electronics. Our judgment
7 cannot be rested on the hypothesis of tomorrow but must
8 take the facts as they are presented today.
9 That's Supreme Court doctrine.
10 What that means is, at any point, any
11 resistance can be grounded in the doctrine that although
12 things may be getting better fast, right now they're a
13 mess and you can't do it in my courtroom. Come back
14 when you've got all these problems solved.
15 So judges who don't want to nurture and foster
16 approximations to the millennium of a high tech
17 courtroom don't have to, they're not obliged to be the
18 midwives of the process.
19 Okay. Third point and I'm done. How is this
20 courtroom, Woody's courtroom, an example of resistance
21 to change? The answer depends on what you think the
22 vision, what your vision of technology in the courtroom
23 is. And I'd like to propose a simple vision statement
24 for technology that reads as follows:
25 The role of technology is to reduce or
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1 eliminate the constraints of time and space on the
2 administration of justice in the courts. Reduce or
3 eliminate the constraints of time and space on the
4 administration of justice in the courts.
5 Obvious example, video depositions. Video
6 depositions eliminate the constraint of time, can also
7 eliminate the constraint of space. Video conferences,
8 simultaneous video conferences, eliminate the constraint
9 of space, time, space -- either one. If you record it,
10 you've done both, if you've done it live, you've done
11 space.
12 The question that should arise in every lawyer
13 and every judge and every potential juror and every
14 potential witness, having contemplated that vision
15 statement, is the following simple-minded question: Why
16 do I have to be here now?
17 Do you remember Timothy Leary, -- not Leary,
18 Alpert's book, the famous book entitled Be Here Now?
19 From this it follows why. Why does the judge
20 have to be co-located with the lawyers at the time of
21 the litigation? Why do the witnesses need to be
22 co-located with either of them?
23 Put aside the time question for a minute and
24 allow simultaneity: Why do they have to be spatially
25 co-located? To ask a question, an important question,
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1 it's not a question the answer to which is
2 self-executed, they don't. There are lots of good
3 reasons, but that's the question that needs to be asked
4 from the policy perspective: Why do have I to be here
5 now, why can't I stay in my office? Why do I have to
6 bear the costs, why does anybody have to bear the costs?
7 Thinking at that level which is, as I am, like
8 it or not, academic is the way I think about it. Why
9 does anybody have to be somewhere?
10 This leads, of course, to the germ of the idea
11 of the virtual courthouse. The courthouse that need
12 exist nowhere but electronically.
13 The courthouse in a weird and wonderful
14 science fiction novel called Arachny got to such an
15 extreme that all the legal participants participated
16 through jacks in their brain stem. It's a wonderful
17 book. I have no how many copies it sold, I may have the
18 only one.
19 But in any case, it takes the idea as far as
20 it can be taken, and that's always a good idea, creates
21 an absurd reduction of the idea, create the absurd
22 reduction of the idea and back it off one step at a time
23 until you begin to see where you're comfortable and
24 where you're not.
25 Seems to me that's the kind of future thinking
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1 that can be done here at Arizona, both at the University
2 of Arizona and in this larger innovative context that
3 seems to permeate the state and certainly permeates
4 everyone who is here today because you paid your hard
5 earned money to get here.
6 And I thank you very much for putting up with
7 me.
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