|The Courtroom Of The Future|
By Nancy A. Mitchell, David D. Cleary and Matthew L. Hinker of Greenberg Traurig LLP
Law360, New York (April 13, 2011) -- As the 21st century moves into its second decade, technology continues to evolve at a breakneck pace. This evolution of technology has clearly affected countless aspects of the practice of law; tethering attorneys to their email, resulting in massive increases in the number of documents to review in litigation, and greatly accelerating the pace of information gathering and sharing. These tools have not only increased the pace of practice, and the amount of information available, they have also allowed practitioners to be more easily informed and to respond more expeditiously to their clients’ needs.
Although technology has been incorporated into many areas of the practice, the incorporation of these innovations into courtrooms, and courtroom practices, severely lags behind the rapid rate of technological development. So, while the industry has been fairly adept at incorporating certain technologies into an everyday practice, few of these developments have been utilized to more effectively streamline and modernize the courtroom experience.
Despite the rapid development of technology and its incorporation into every day life, nearly every aspect of a courtroom proceeding, other than electronic filing, still revolves around a paper practice. In most jurisdictions, attorneys must deliver courtesy copies of any filing to chambers, print and carry numerous copies of often voluminous binders of exhibits to hearings, as well as bring paper copies of any orders to be signed to court.
Ideally, in the near future, most of this paper practice will be replaced by technology which conserves resources and time. While electronic readers and tablet computers are fairly new to the market, they are becoming increasingly mainstream and could have many applications in courtrooms. For instance, counsel tables, podiums and witness stands could be equipped with electronic readers, thereby allowing each party to simultaneous review documents.
Even today, various alternatives exist to simplify the presentation of documents to witnesses and opposing counsel. A utilization of readily available electronic equipment would drastically reduce the amount of paper that is currently utilized in a proceeding. Binders containing voluminous exhibits could be carried on a memory chip the size of a postage stamp, rather than in countless boxes.
Further, the electronic presentation of exhibits to witnesses could also drastically expedite the average examination. Rather than asking a witness to locate a document, or to turn to a specific tab in a binder, an examining attorney could simply utilize a wireless connection to display the desired exhibit, or even a specific page of an exhibit on a screen in front of a witness at the press of a button. An attorney could also easily highlight portions of an exhibit or help the witness locate the portion of the document to be reviewed. Perhaps within the next several years, rather than toting boxes of binders to a hearing, associates will be able to carry the requisite exhibits to court in a pocket or their briefcase.
Another area where the courtroom of the future is likely to look very different than today, is the increased use of video conferencing, Web-cams, and their supporting data networks. When coupled with the electronic presentation of documents, these technologies will alleviate the need for many witnesses, and out-of-town attorneys, to travel to a hearing or proceeding.
In the bankruptcy or corporate arena, hearings are often conducted in jurisdictions that may be relatively inconvenient for a witness to attend. Rather than traveling to such jurisdictions, in the near future it may be possible to present a witness to the court via video conference.
Such a presentation would allow a judge to evaluate the witnesses’ testimony while observing the declarants’ body language, and interpret any other visual cues, while eliminating the burden of travel. A witness testifying via video conference would not be terribly troubled by a rescheduling of their testimony.
In addition, through an adaptation of video conferencing, a court could have far greater access to any potential witnesses, and could reasonably request the testimony of a witness that otherwise may be unavailable due to travel schedules or difficulties associated with traversing great distances. In fact, utilizing these technologies would greatly expand a court’s ability to force a witness to testify, regardless or their distance from the actual courtroom.
In addition, counsel tables consisting of large teams of lawyers from various jurisdictions may soon be a thing of the past. Rather than traveling back and forth to hearings, attorneys may soon be able to rely on local counsel as their physical representatives in court and conduct their business through video conferencing. It may even be possible to conduct an entire proceeding virtually without any attorneys or even the judge in the courtroom.
Many jurisdictions already allow attorneys to appear or to participate in hearings via teleconference and video conferencing; conducting hearings via video conference seems a logical evolution. Unfortunately, while many law firms are equipped to conduct video depositions, installing the required equipment to facilitate video conferencing in every courtroom would require a fairly significant capital expense. However, given the proliferation of devices incorporating cameras, and video-cameras, in the last several years, proceedings may increasingly feature the use of video conferences.
While the utilization of technology could greatly facilitate the conservation of judicial resources, it is not without its drawbacks. First, and foremost, the installation of the necessary equipment would require fairly significant expenditures of capital, and given the current financial limitations of many states, the modernization of a courtroom is unlikely to be considered a fiscal priority.
Further, much like the electronic filing system utilized by many courts, a uniform system would have to be developed, and installed, to ensure ease of use and to reduce potential complications. Additionally, proceedings that rely heavily on video conferencing, or other forms of technology, would be subject to potential technical difficulties. Finally, stringent measures would need to be taken to ensure the encryption of any sensitive information, and to prevent any type of electronic eavesdropping or tampering with such a system.
In fact, to the next generation, a brick and mortar courtroom may seem as outmoded as fax machines. A secure, virtual courtroom could be accessed via individual computers allowing hearings and proceedings to occur in cyberspace. The judge, or an assistant, acting as a moderator would determine which party was controlling the video conference at any one time.
Any document needed at the hearing could be instantly accessed through cloud-based computing, allowing an attorney to effortlessly distribute copies of exhibits. Further, ensuring an accurate record of every proceeding would be far easier and efficient, as the proceeding could be recorded and distributed electronically to each party, and any other party requesting a copy of the proceedings.
In the meantime, as practitioners become more familiar with recent technological developments and recognize the advantages that are presented through the adaptation of such devices, the benefits to the practice may soon outweigh the costs. Perhaps appearing via video conference in a proceeding while distributing documents electronically to the court, opposing counsel and any witnesses will soon seem as commonplace as checking one’s email on a BlackBerry.
*Nancy Mitchell is an operating shareholder in the business reorganization and bankruptcy practice in the firm’s New York office. David Cleary is a shareholder in the business reorganization and bankruptcy practice in Greenberg Traurig’s Phoenix office. Matt Hinker is an associate in the business reorganization and bankruptcy practice in the firm’s Wilmington, Del., office.
The opinions expressed are those of the authors and do not necessarily reflect the views of the firm, its clients, or Portfolio Media, publisher of Law360.