Although it doesn't seem that long ago, it has been almost four years since the O.J. Simpson murder trial began to imprint itself on the American consciousness through the medium of television. By the time it was over, both opponents and proponents of cameras in the courtroom were using the example of the trial to bolster their contradictory positions on that particular courtroom technology. In retrospect, the debate over the appropriateness of televising trials can be seen as a perfectly natural consequence of the attention given the high-profile trial, especially in light of the controversial outcome.

The trial had an unexpected consequence, however, in that it raised our general awareness of the importance and use of various kinds of courtroom technology. Of the many memorable images of the trial, some of the most memorable are the scenes of judge Ito's courtroom bristling with computers, monitors, cameras, tape decks, projectors, presentation devices, microphones, audio and video switchers, and the tangle of wires and cables that connected them all to each other and, ultimately, to the world.

What the members of the general public may be unaware of, however, is that the hardware and software they observed in use in the Simpson trial are just one link in a chain of new technologies that have revolutionized courtroom litigation and the practice of law – and these new technologies hold the promise of great changes to come, as well. Ironically, even the largest of law firms, with their buttoned-down traditions and conservative images, have been slow to react to and adopt technological changes that allow them to conserve both time and money, and help preserve rain forests in the bargain.

On the other hand, various information and information technology industries have not been slow to realize the potential of what is still a largely untapped market – not only the large firms, but the thousands of courtrooms across the country and the even larger number of small to medium-sized law firms. At the Fifth National Court Technology Conference (NCTC5), held last September in Detroit, some 125 vendors showed their wares to more than 2,500 conference participants, and presenters used state-of-the-art technology to conduct over 20 educational sessions covering such topics as managing electronic images and documents, using databases of various kinds, smart courtrooms, and client/server technology. One of the concepts that the presenters at NCTC5 hoped to convey to their audience was the notion that opportunities for utilizing technology arise in virtually every phase of the practice of law.

All of these opportunities fall into two broad categories – courtroom technology and law practice technology. Of necessity, however, the two sometimes overlap and will continue to do so with increasing frequency, especially as electronic filing of briefs, motions, and other court documents becomes more common. Courtroom technology includes presentation devices such as those with which we became familiar through the Simpson trial, but it also includes computer access to documents, transcripts, and scanned exhibits; real-time transcription of depositions and courtroom testimony; and the use of videography in depositions, in demonstrating evidence, and as a record of proceedings. Law practice technology includes imaging of documents for handy access and conservation of paper; workplace communications such as faxing, electronic file transfer, e-mail, and audio and video conferencing; development of multimedia applications; and, perhaps most importantly, computer-assisted and on-line legal research.

Courtroom Technology

One of the most simple, yet most effective, ways to enhance the efficiency of the courtroom and the integrity of the trial process is to keep a video record of all that transpires in the courtroom. Interestingly enough, Kentucky is the only state in the union that routinely makes direct use of video records. Although other states videotape proceedings, they all transcribe the contents of the videotape for official use, considering the transcription to be a more accurate record. However, the issue is not really one of accuracy as much as ease of use. Because of its value as an accurate record of the testimony and events in the courtroom, a videotape of a trial helps ensure that a verdict will not be overturned at the appellate level. In fact, a study undertaken by the National Center for State Courts evaluated the use of video transcripts in the Kentucky Court of Appeals and found that their use increased appellate affirmances. However, some Kentucky attorneys maintain that the increased rate of affirmances is the result of the time and trouble involved in fast-forwarding and rewinding videotapes to check testimony. But even this criticism can be countered by new video systems that tie real-time transcription to the videotape. Regardless of this controversy, we are now in the midst of the "digital age," and video technology seems almost old hat in the face of new possibilities for courtroom technology.

What does the well-equipped "smart courtroom" contain? Court 21, a joint project of the William & Mary School of Law and the National Center for State Courts, is billed as the "The World's Most Technologically Advanced Courtroom." The Courtroom 21 Web site provides a 32-item list of the components that make up the courtroom of the future, some of which are truly extraordinary. They include six remote-controlled cameras that can be synchronized to the real-time transcript, consecutive translation of up to 140 languages using AT&T's LanguageLine, first appearance and remote arraignment via two-way television, bench and table access to federal and state statutory and case law via CDROMs, dial-up access to WestLaw and Lexis/Nexis LawPlus electronic filing, a wall-installed 40-inch Sony monitor for computer and video display, additional 20-inch monitors for the bench and the jurors, Microsoft NT computer networking, visual presentation devices, and more.

One might think that all this technology is what leads to the crowded scenes of judge Ito's courtroom, but that is not the case in Courtroom 21. The technology is designed to be as unobtrusive as possible and fit in with the walnut paneling and furniture that comprises the courtroom decor. Additionally, the total costs for all the technology are less than half of the potential cost of the technology in judge Ito's courtroom, which was estimated to be around $250 million.

Law Practice Technology

In the courtroom, changes in technology are mainly concerned with record-keeping and presentation. In the actual practice of law, the most important technological advances address the manner in which legal research is accomplished. Kurt Metzmeier, coordinator of information systems services for the University of Kentucky College of Law, says that nowadays the heavily-laden bookshelves we are accustomed to seeing in law offices are there mostly because we are accustomed to seeing them. The real legal research is taking place through the use of CD-ROM databases and on-line services offered by such companies as WestLaw and Lexis/Nexis.

Both of these companies have been around for quite a while (West is a major publisher of legal reference books), but in the past they operated dial-up database services that were quite expensive to use. These companies could easily demand an initial fee of $100 for every lawyer in a firm and then charge $100 - $250 per hour of on-line time. According to Metzmeier, these costs were passed along to the clients. Over a period of time, corporate clients that represented major billing began to balk at paying what they perceived to be exorbitant research costs that were the result of inefficient search methods and outmoded technology. When faced with paying these costs themselves, law firms began looking for more efficient ways to accomplish their research and demanding different price structures for different services from their providers.

As a result of these demands, and facing competition from new players in the world of digital databases, companies like WestLaw have severely discounted their on-line services and now offer a CD-ROM format for all their legal references except the most current information. West, for example, offers a service called WestLaw Pro which charges a flat fee of $125 per month (with an additional fee of $70 per lawyer) for selected on-line services. The amount and variety of the information available from these services is staggering – 7,500 legal databases and 1,900 news, business, trade, and professional sources, as well as public records too numerous to mention. At the University of Kentucky, the free access to these services enjoyed by the law students is the envy of many on the campus, especially those studying business, journalism and communications.

On the law side, there are databases that include all federal and state case law, statutes, court rules, and sentencing guidelines; administrative law topics such as public utilities reports, environmental cases, insurance statutes and regulations, and attorney general opinions; and records of all civil proceedings. On the news and information side, there are full-text versions of hundreds of newspapers, and there are trade and professional periodicals covering 48 topics from "Aerospace and Aviation" to "Cosmetics and Household Products." The Lane Report is also included – every issue from December 1991. Additionally, there are numerous practice-area materials available, covering topics ranging from Administrative Law to Workers' Compensation, and everything in between.

Of course, on-line research is no longer the only option for computer-assisted research available to the forward-thinking attorney. For example, a single CD-ROM, containing all the Kentucky Court of Appeals decisions since 1930 takes the place of an entire set of reference books. When used in conjunction with West's Premise research software, CD-ROMs combine the familiarity of the accepted forms of book research with the efficiency of computer-assisted research. One of the main selling points of such systems is that the CD-ROMs are searchable by key terms such as the citation, the title of the case, the court dates, the names of the judge and of the attorneys, the general topic of the case, the headnotes, and any word in the text. And it's possible to jump to online services at any time. The cost of a license for a single CD-ROM database can be a $1,000 or more, but that is certainly no more than the cost of the entire set of books that it replaces.

Creating a Level Playing Field

The result of all this is that even small firms can afford to adopt technology that puts them on even footing with the largest firms. For Kimberly Hosea, law clerk for judge David Knox of the Kentucky Court of Appeals, legal research and writing are clearly her primary tasks. Hosea, who practiced with a small firm for several years, says that there is "absolutely no comparison" between the "then" and "now" versions of legal research. Aside from the ease with which work is accomplished, Hosea says, one of the main differences is that attorneys no longer have to leave the office to conduct their research. Before her former firm purchased its CD-ROM server and on-line services, she often spent a good deal of her time looking up references at the courthouse or at the UK Law Library. One of the benefits of the new system, especially for small to medium-sized firms, is that traveling hours can be converted to billable hours.

As in every modern walk of life in which technology now plays a significant part, the practice of law is still fundamentally the same as it has always been, though alterations in technique and method have taken place, It is clear that technology is not a substitute for process, hard work, and clear thinking, but simply another tool (albeit a very powerful one) in the hands of the well-prepared attorney.

Additionally, there are limits to where one can go with technology. Thus far, no jury trials have taken place in which all the participants come together through electronic means, but the concept of the "virtual courtroom" is upon us. Numerous pretrial proceedings already take place in a "virtual" space, through electronic filing of motions and through audio and video teleconferencing. If it could be determined that justice can be served under such conditions, the technology to make it happen is certainly available. It is essential to remember, however, that the promise technology holds for issues such as convenience and saving time, money, and paper is of secondary importance. The main goal is to maximize the chances for a desirable outcome in the case. As Fredric I. Lederer, chancellor professor of law at the William & Mary School of Law, puts it: "As trial looms on the horizon, counsel seeks to assure victory. Whether the goal is successful settlement or victory at trial, the wise lawyer routinely seeks to gain every ethical advantage possible. Increasingly, technology may well be not just an advantage but a deciding factor."

John F. Clark is College Technology Coordinator for UK's College of Communications and Information Studies.

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