In September 2004 the first ”Paperless Trial” in Texas was conducted in Austin. I was asked to provide the technical support for the school districts in that trial. The trial lasted 26 days, presented testimony from 32 witnesses, and had over 23,456 exhibits. More than 350 of them were shown before the court. Judge Dietz was a “Gojira” aficionado and had half a dozen Godzilla figurines on his desk. He would signal his displeasure by putting one or another front and center on the Bench. The Judge held strictly to the paperless directive. At one point an attorney for the state asked the judge if she could use a paper printout of an exhibit so the witness could compare it to another exhibit. Placing the largest Godzilla in the pack at the front of his bench he said “We have been in trial for 18 days and not a single piece of paper has been used. We will take a 15-minute break and if you cannot figure out how to show two pieces of paper on the screen at once I’m sure Mr. Dexter can show you how!
After the trial the State filed an appeal. We prepared the documents for the appeal, linking each exhibit to the transcript, giving the appeals court the ability to review every exhibit and the testimony for the first totally electronic appeal in the State.
Lawyers Discuss Experience with First Paperless Trial
The September trial regarding the constitutionality of the state’s school finance system required only 26 days, thanks in part to State District Judge John Dietz’s requiring both sides to make use of the E-courtroom technology.
Though Judge Dietz’s decision was certainly the most important aspect of the trial, this was the first “paperless” use of the technology, and both sides were eager to show off their E-courtroom skills The Texas Attorney General’s team was led by Jeff L. Rose, chief of the general litigation division. The joint team of Bracewell & Patterson and Haynes and Boone was led by Bracewell’s John David Thompson III.
What was it like using the new e- courtroom equipment for such an important, high-profile case? Were you nervous about the trial going smoothly?
ROSE: Judge Dietz’ E-Courtroom technology had a huge positive impact on every aspect of the trial, from effectively displaying the thousands of documents to helping to “liven up” what some might describe as relatively dry subject areas. Our team had taken the Travis County training, but even with the training and having made some practice runs, it was a bit intimidating to step up to use the stuff with the media cameras rolling and the Godzilla dolls just waiting for you in the corner.
THOMPSON: Of course, we were nervous using the E-courtroom technology for the first time in a case of this magnitude. However, it was a great experience. We had thousands of exhibits, tens of thousands of pages of documents, and for the most part the trial went very smoothly. We were able to use real-time Internet connections in the courtroom, and most witnesses were able to use PowerPoint presentations, summative exhibits, and demonstratives. I think these tools made all of the presentations more time-efficient and coherent. It would have been very easy to get bogged down in technical issues, but for the most part we avoided that. I think the technology definitely shortened the trial.
How was your preparation different for this trial? Obviously, you had to take a different approach with E-courtroom equipment.
ROSE: The technology made a world of difference in document discovery in the case, enabling us to do voluminous document pro- ductions on disk. Witness preparation was also quite different using the technology, as both sides in this bench trial ended up relying heavily on PowerPoint presentations to lead (and boy, do I mean lead) their witnesses through the testimony. We had a Rule 11 agreement to exchange demonstratives 48 hours in advance, so the price for leading your witness with PowerPoint was previewing your direct to the other side.
With the Plaintiff witnesses utilizing PowerPoint on direct, we had to quickly adapt our cross-examinations by having our own exhibits, and PowerPoint in some cases, loaded beforehand. All of this led to smooth witness examinations, but it certainly changed the preparation and dynamic com- pared to low-tech trials. Paper had to be avoided at all costs, as Judge Dietz generally did not allow the lawyers to hand the witness or the bench any paper.
I would say the most significant difference procedurally was extensive use of TEXAS RULE OF EVIDENCE 1006, allowing summaries of voluminous documents. With the vast amount of statistical and numerical data in this case, the charts and graphs in PowerPoint became a valuable tool to both sides in summarizing and illustrating the evidentiary points.
THOMPSON: There are several things that we did differently in preparing for this trial. Perhaps the most important decision our team made was to have a fulltime technology specialist as part of the team. Ric Dexter with Haynes & Boone was fantastic! At one time or another, I think he assisted every lawyer on both sides in the trial. Having Ric as part of the team allowed the lawyers for focus on the legal issues. He not only was able to deal with various hardware and software issues; he had a great feel for content and helped us develop demonstratives that accurately and effectively summarized other exhibits and witnesses’ testimony. We decided to use as many of the tools as the rules of evidence would permit – lots of color, graphs, and charts to summarize other fairly dry and technical exhibits, etc. I definitely would recommend having a skilled technology person as part of a trial team.
Were you satisfied with how you were able to present your case? Would you do anything differently?
ROSE: I was proud of our team’s ability to ramp up quickly and use the new technology, and ultimately, I think it gave us the ability to effectively present our case. The Godzillas only came out a time or two, usually when someone was making the Judge car sick by using the document camera without freezing the document. In the perfect world, it would be nice to have a full-time technology specialist to run your trial technology for you, like Haynes & Boone had in Ric Dexter (who was great and helped us as well). Short of that, however, we showed that old dogs can learn new tricks with the Ecourtroom, you just have to get up there and do it.
THOMPSON: I am sure that there are several things that we could have done better, and hopefully will in future trials utilizing technology to this extent. However, I honestly cannot think of one thing that our team did, at least related to technology, that was an outright mistake. When we do a detailed de-briefing in a week or two, I am sure that we will identify some “lessons learned” for future trials.
One point I want to stress: The use of technology would not have been possible or nearly as effective if the judge had not been conversant and comfortable with its use. Judge Dietz clearly is familiar with the technology in the Ecourtroom, encouraged the lawyers in its use, and truly lead by example in its use.
This was a learning experience for the attorneys in the best sense of the term. I am looking forward to similar experiences in the future. • AL