People of a certain age remember when lawyers were almost always depicted in movies and television as competent, resourceful, honest, and zealous courtroom advocates for their clients. Long-running courtroom dramas such as Perry Mason, Matlock, and Law & Order demonstrated to viewers the vital role hard-working lawyers play in enforcing the rule of law for everyone’s benefit, protecting society from bad actors, and preventing miscarriages of justice.
Recently, however, lawyers are more likely to be seen on screen exhibiting less desirable character traits. There’s Liar Liar, a movie that features an attorney who cannot tell the truth. Or My Cousin Vinny, a movie in which a truly terrible trial attorney from Brooklyn somehow manages to win an acquittal for two clients charged with murder in a small southern town. Or, more recently, the disreputable exploits of a con man turned lawyer in the television shows Better Call Saul and Breaking Bad.
For better or worse (mostly worse), these and other entertainment programs are how most of the general public learns about the legal profession. Stories about lawyers are how the public learns “what it thinks it knows” about lawyers and the legal system, UCLA School of Law professor Michael Asimow wrote in Embodiment of Evil: Law Firms in the Movies, 48 UCLA Law Rev. 1339 (Aug. 2001). Mistaken, negative impressions among the general public can shape legislative outcomes regarding efforts to reform the law and fund judicial operations. Moreover, misapprehensions about lawyers are lodged in the brains of jurors at the beginning of every criminal and civil trial.
Jurors Are Impatient With Tech Glitches
Today, the general public seems to think that lawyers are not competent when it comes to technology. Take, for example, Shaun Sanders, the hapless civil litigator in the television show Jury Duty, an improvisational comedy in which everyone involved is an actor except for one person who believes he is actually serving on a real jury.
Attorney Sanders has a big problem with technology incompetence.
On the first day of trial, Sanders unsuccessfully attempts to show the jury an animation depicting his client’s version of the facts of the case. The jury looks on for several uncomfortable minutes while Sanders fumbles with his table device, stabbing his finger at the display in an attempt to download the animation.
The animation, Sanders announces to the courtroom audience, is stuck “in the cloud” and it’s not downloading to his tablet device. The judge begins to lose patience with Sanders. Jurors shake their heads. Sanders fills these awkward moments with promises that the animation will soon be ready. “I’m joining the wifi as we speak,” he tells the judge and jury.
When Sanders eventually gives up on downloading the animation, the judge announces that the trial will continue the next day when, he hopes, Sanders will have better luck with the animation. Despite being given additional time and a good night’s sleep, Sanders’ technology competence is no better the following morning. He can’t get the animation to run on the courtroom’s monitor, which he stumbles into and knocks to the floor.
Sanders decides to show the animation by playing it on a handheld tablet device, which he holds in front of the jurors as they crowd together in the jury box and squint to view the display.
“I have not had an opportunity to watch this yet,” Sanders says.
The animation itself is wretched, ineffective, and embarrassing. “I’m going to have to have a talk with my nephew,” Sanders says, nervously. Sanders eventually abandons the animation when it glitches and freezes. Some jurors are amused by Sanders’ misfortunes, while others are sympathetic with Sanders’ client. “He’s showing frustration when his attorney can’t show a simple video,” one juror remarks.
Technology Competence in the Courtroom
What can litigators take away from the comedic struggles of attorney Sanders? Aside from the unsurprising fact that people find technology ineptitude humorous, there are several:
Lawyers have an ethical duty of technology competence. Sanders’ fumbling around with the video animation diminished his credibility with the judge and jury and, by extension, diminished his client’s chances of success at trial.
Technology competence, mandated in nearly every jurisdiction’s professional ethics code, encompasses more than cybersecurity considerations when handling client confidential information. “Technology competence” also means knowing how to deploy technology to benefit clients in every aspect of the representation. The ability to competently use technology to persuade jurors to the client’s position is an ethical baseline in modern litigation.
Jurors expect a polished presentation. Neither the judge nor the jury in Jury Duty expressed sympathy for Sanders’ technology troubles. No surprise there. Experienced litigators believe that jurors today expect courtroom events to unfold in the same manner as a television show: the technology works, presentations are sharp and crisp, well-produced everyone is in costume, and everyone plays their expected roles.
Preparation is key, especially with technology. Sanders’ decision to hire his nephew to create the animation was obviously a mistake. But it was unforgivable for Sanders to not view the animation and rehearse his presentation in advance. As we’ve noted here, here, and here, careful preparation and a commitment to develop virtual advocacy skills are vital for success in modern litigation.
Litigators would do well to follow the professional musician’s adage: Don’t practice until you get it right; practice until you can’t get it wrong.
Jury Duty is fictional and obviously wrong about the law in numerous places. Who sequesters a jury in a civil case? Is the foreman really responsible for the behavior of other jurors? Nevertheless, it’s probably a highly accurate depiction of what the public believes courtroom advocacy looks like. Prospective jurors expect a polished and professional performance from everyone involved in the trial. They’re not going to be patient with a technologically challenged advocate like Shaun Sanders.