Paperless jury trial
By Nathan Speir
The concept of a paperless law office is well established. A simple Google search will reveal several New Zealand firms that have already transitioned to a paperless (or at least less-paper) practice.
The idea of going paperless in court however, especially in a jury trial, is not met with the same degree of acceptance.
For many lawyers, being asked to trade the parchment and pen for a PC would be like asking a builder to leave his hammer and nails at home. Perhaps it is because law is one of the last true professions and is steeped in tradition, or maybe we are just reluctant to move with the times. Whatever the reason, it is clear the issue polarises us.
Last month I set out to demonstrate that it was possible to go paperless in court, even before a jury.
I used PDF (scanned) versions of witness statements in place of the real thing, took a tablet computer to the lectern when addressing the jury and typed notes during the evidence of each witness. I did, however, have a physical copy of the file with me just in case.
This article records what worked for me, what didn't, and what I would do differently in future. Before I get into that I should first say that my client was fully supportive of the idea before trial and is also happy for me to share the outcome with the readers of this article.
To complete the paperless jury trial I bought a new laptop, the HP ENVY X2, which turned out to be the perfect fit for the job. It is a laptop that doubles as a tablet (the touchable screen detaches). I also used my smartphone as a wireless “hot spot” and was therefore able to access all of my legal databases from court.
Fortunately I work for Rice Craig, an established suburban law firm in Auckland and therefore had access to a full copy/scan/print setup, which made scanning documents to PDF quick and easy.
I needed a simple and efficient way to store and manage the scanned documents. I did some research and spoke to a few tech-savvy people who put me onto a software download called Foxit Phantom PDF. It is an excellent program that allows one to create digital files just like physical versions, with easily accessible tabs so that several documents can be viewed at once.
Foxit is also great because it allows annotation of PDF documents. One can highlight words, add notes to documents, set bookmarks and even search for specific words or phrases in lengthy documents. This feature was very useful when it came to reviewing the 200-plus pages of court transcript by the end of the trial. Each night I typed notes as I read through the transcript, which were easy to refer back to later.
The jury trial was a multi-accused assault case in the Manukau District Court. My client and another were charged with assault with a weapon and common assault. The two defendants were alleged to have assaulted a takeaway store owner in the early hours of the morning, causing him reasonably serious injuries.
In the weeks before the trial I arranged my digital file in a logical sequence: the first tier of folders included (a) Crown case; (b) defence case; (c) co-accused case; and (d) house-keeping documents. Within each folder I had various witness statements, Police notebook entries and job sheets as well as cross-examination plans and notes for jury addresses.
The Crown presented an indictment to the court and my client and his co-accused both pleaded not guilty to each of the charges. The jury was empanelled and the Crown opened its case. When my opportunity came to address the jury I did so using the tablet at the lectern. I was able to "pinch and release" the screen to zoom and scroll through my notes with the swipe of a finger.
During the evidence-in-chief of the Crown witnesses I tapped notes into Microsoft Word. Then, when it came to cross-examine I detached the screen and had my tablet at the ready. It was easy to switch between my notes, various statements of witnesses and my client’s brief of evidence using the generous touch screen. In fact, I used the “split screen” function several times to compare what a witness had said in various statements to Police.
When it came to putting prior inconsistent statements to a witness I had to hand the physical document to the witness. In the future, a solution to this problem could be screens set into the bench in front of the witness, counsel, the judge and possibly even the jury. The setup is already being used by the Serious Fraud Office in trials and would enable everyone to refer to a document contemporaneously.
In closing the case to the jury, I spoke for almost an hour and had nothing with me but the tablet. It went without a hitch.
The jury retired to consider their verdict, and after deliberating for more than four hours, both defendants were found not guilty of both charges.
Both the trial and the method used were ultimately a success. Some of the positive aspects of using technology in trial included:
- · being able to access all my documents from one source, safe in the knowledge that there was no chance I had left anything back in the office;
- · not having to transport bulky, clunky files and loose-leaf folders;
- · an easily accessible and efficient document management system;
- · the ability to search large documents (in particular the court transcript) for words and phrases that I knew had been said but couldn't remember when;
- · being able to type notes quicker than I could write them (and be able to read them days later); and
- · a progressive approach to a traditional process.
Of course using computers in the courtroom also presents some issues. There is the risk of computer meltdown, batteries running out, water spills and various other catastrophes. Fortunately none of these things happened in my case and the experience was a good one.
I would encourage others to give paperless a go. There is no need to be afraid of using technology. It is a tool that can improve efficiency and is easy to use once you know how. You can leave your heavy files, commentaries and paper diaries at home and use a laptop, tablet or smart phone to do the same job.
With the advent of E-bench it is clear the courts are looking to modernise the way in which they manage voluminous files. Without doubt technology is coming to the courtroom in the near future and we as counsel should be prepared to adapt if we want to survive.
Nathan Speir is a civil and criminal litigation lawyer who has conducted jury trials for both the Crown and defence. He is employed by Rice Craig Barristers & Solicitors in Papakura, Auckland.
This article was first published in LawTalk 821, 21 June 2014, page 20.
Update One Year on: Paperless jury trial – perhaps not yet by Craig Ruane.