1. Tom Mighell on March 20, 2006 6:42 PM writes...

Dennis, I'll throw in the same comment I did in our back-channel conversation on this topic; what bothers me here is that this was done without notice to the other side. In a courtroom, it's completely appropriate to have a jury consultant, expert, or other advisor to provide information during a trial -- but that person is visible to the other side, who can then object if they feel it's necessary. In this situation, the other side has no idea that someone else is listening in.

There's also a question of the immediacy that this technology provides. Again, it's appropriate for a lawyer to go back to his/her office after a day in court and provide an expert with transcripts or notes regarding what happened at trial that day, so the expert/consultant can provide insight and advice on next steps to take. In this case, the expert is providing immediate feedback and questions, which is immediately impacting the arbitration. Is that an unfair advantage? I would say not necessarily -- as long as the other side is aware the technology is being used.

Here's another question not answered by the article: did the rules of arbitration prohibit others from being present in the room? Was the rule invoked? If so, then we may be also talking about a violation of the forum's rules.

I disagree that using technology in this way "corrupts" the legal system. To paraphrase an old cliche, "technology doesn't corrupt the legal system -- lawyers who use it without disclosing to opposing counsel do."

2. Thomason on March 21, 2006 8:46 AM writes...

I'm not sure about notice to the other side being a factor.
With a little planning, one side can come to the deposition, etc., with a team who have networked laptops. The team assists the questioning attorney by sending questions over to his screen, which appear alongside the live feed from the court reporter.
The only difference in what was "demo-ed" at the tech show is that the team is remote from the deposition room. Instead of being networked, in the room, they're out of the room and use IM and the web to assist the questioning attorney.
Analyzing the appropriateness of this hook-up is not really different than when the team slapped Post-Its with questions on them onto the lead attorney's legal tablet.

3. Robert Babcock on March 21, 2006 11:08 AM writes...

If one side shows up more prepared is than an unfair advantage to the other side? If I brought a computer that had all of the information in the world on it and was using it would I have to disclose this to the other side?

It seems people are scared of the changes that technology is brining to the law and to everyday communications. I suggest people get busy adapting or get busy looking for alternative jobs.

4. M Hedayat on March 22, 2006 5:17 PM writes...

I am tempted by Mr. Babcock's position. It seems solid -- being technologically savvy is no more an "unfair" advantage than being prepared for trial. And what happens if we shun such innovations anyway? The profession suffers because good ideas are stifled! This happens enough in the legal world -- why add to the problem? The problem however is that being technically superior or even better informed than one's opponent could be, or appear to be, the product of factors beyond the lawyer's control such as the amount of money spent by the Client or the size of their office. Finally though, I suppose these factors may well be the legal world's equivalent of natural selection -- to the swift goes the race, to the quick-witted the prize. Right?

5. Tom Mighell on March 22, 2006 9:05 PM writes...

I just don't think the real issue is the technological advantage -- if my showing up at trial with trial presentation software and a whiteboard means I present my case better than my opponent who only brought a few blowups, then all the better.

I guess my problem is this: recording proceedings without the knowledge of all parties seems to me, well, dishonest. If I want to videotape a deposition, I have to provide notice to all parties five days before it takes place. In many states (including Michigan, where the arbitration took place), recording a conversation without the consent of all parties is a violation of the applicable wiretap statute. If there's nothing inappropriate about the recording, why *not* disclose it to the other side?

6. kreig on April 7, 2006 4:48 PM writes...

Ultimately, I think that legal technology follows the population and, also, what is shown on TV. In the event that juries start expecting technology, I think lawyers will have to adapt. However, for now, personally, I think that low-tech is the way to go. A poster on an easel (especially if you can leave it for the jury to stare at throughout a trial), is better than a temporary electronic power point presentation.

Similarly, I do think that the court procedural rules and state ethics rules will help keep many types of technologies from being employed to create an unfair advantage (such as the arbitration scenario described above). As such, I am less worried about legal technology corrupting the law, because technology will be accepted when the time is right (I think to how DNA has been accepted and polygraphs have not... How powerpoint presentations have become acceptable but podcasting has not...)