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Denise Howell is a seasoned appellate and intellectual property litigator based in Los Angeles. Denise writes one of the first and most popular law-related blogs, Bag and Baggage, coined the term "blawg" and helped pioneer podcasting for lawyers. Microcontent obsessed since 2001, she is frequently quoted in the media on legal issues involving intellectual property and technology law. "Sound Policy" is Denise's show at IT Conversations, and it's also what she hopes results from the briefs she submits to court. Email Denise at dhowell@gmail.com.

Dennis Kennedy is a computer lawyer and legal technology expert based in St. Louis, Missouri. An award-winning author, a frequent speaker and a widely-read blogger, he has more than 300 publications on legal, technology and Internet topics, many of which are collected in his e-books. Dennis has been described as someone who knows almost every rock song in existence and, more importantly, how they apply to technology and law. Email Dennis at his gmail address.

Tom Mighell is Senior Counsel and Litigation Technology Support Coordinator at Cowles & Thompson in Dallas. He has published the Internet Legal Research Weekly newsletter since 2000 and blogged about the Internet and legal technology at Inter Alia since August of 2002. With Tom's singing, Ernie on guitar and Dennis' encylopedic knowledge of rock music, we may have the beginnings of a good band, if this whole blog thing doesn't work out. Email Tom at tmighell@swbell.net.

Marty Schwimmer left a partnership in the largest trademark practice in the world and founded Schwimmer Mitchell, a full-service IP micro-boutique in Westchester County, New York, where he represents owners of famous and not yet famous trademarks. He founded The Trademark Blog, the first IP law blog and the one with the most pictures. He is the first to come in and the last to leave in his firm. Email Marty at marty@schwimmerlegal.com.

Ernest Svenson practices law with a mid-sized law firm in New Orleans, specializing in business-related lawsuits. Most of his practice takes place in federal court, especially the Eastern District. He is best known for his weblog Ernie the Attorney, which he started as an experiment. Like many experiments it got out of control. Nevertheless, he continues to practice law and, occasionally, to seek enlightenment. Email Ernest at esvenson@gmail.com.
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Between Lawyers provides just-in-time group commentary on the issues raised when technology, culture and the law intersect. We take you behind the firewalls and conference room doors to show you how experienced lawyers deal with these issues and help you prepare for the new challenges we all face. For more, see our introductory post.
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July 18, 2006

Cameras in the courtroom?

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Posted by Ernest Svenson

Chief Justice John Roberts recently told a group of people in Huntington Beach, California that he was not in favor of cameras being allowed in the U.S. Supreme Court. "We don't have oral arguments to show people, the public, how we function," he told the audience. Well, let's stop here and talk about the audience for a second. In case you couldn't guess, the audience was not a bunch of high school students or some civic group. The audience was composed of federal judges and their spouses.

Obviously, the Supreme Court doesn't have oral arguments to show people how the court functions. Even a guided tour through the various chambers wouldn't exactly show the public, or lawyers, how the court functions. So, that statement is basically a rah-rah red herring.

Judges, when they talk amongst themselves (and they do this a lot), strongly oppose cameras in the courtroom. But that doesn't mean it's not a good idea. What's going on is judges are doing the cost-benefit analysis in a way that reflects their sensibilities. They realize that a lot of attorneys play to the cameras and to popular sentiment, and they rightly fear that this will diminish the sanctimony of court proceedings.

But, it's not the cameras that cause the problem (i.e. guns don't kill people etc). It's something else: namely our innate desire for attention, which many of us express in really goofball ways. So, yes, having cameras in the courtroom will exacerbate this problem. First question: is there anything that could minimize the problem of attention-hounding lawyers, if and when cameras are allowed in the courtroom? Second, and more important question: what might be the short-term, and long-term benefits of having cameras in the courtroom? I agree it won't exactly show us how the court functions, but it may show us a lot of other useful things. Maybe it will show us how some things don't function as well as they should. Maybe it will allow us to see for ourselves (not filtered through a reporter's descripition) that certain attorneys are ill-prepared or brazen or stellar or [fill-in adjective].

But, regardless of whether we can reach a consensus on whether cameras in the courtroom might be useful, there is something else to consider.

Cameras in the courtroom are inevitable. Why? Because each succeeding generation expects more transparency and openess, especially from government institutions. This has been a long-running and powerful trend. Nationally, and internationally. So when Justice Roberts says that he and his fellow justices see themselves as "trustees of an extremely valuable institution," he is trying to preserve a tradition that over time will lack the resonance that it now has. If you want to receive applause for saying that cameras will never be allowed in the courtroom then make sure you are speaking to other judges. If you say that to other groups of people you'll find the applause is less enthusiastic. Eventually, there will be no applause outside of the judicial sect for this sort of statement.

In 1996, Justice David Souter told a congressional panel, "The day you see a camera come into our courtroom it's going to roll over my dead body." I don't think that will happen in a literal sense, but it actually could if Justice Souter chose to be buried on the steps leading up to the Supreme Court.

Eventually Justice Souter will pass away. This is an inevitability. And it's virtually inevitable that somewhere in the future there will be a generation of people who will expect to be able to see images of what happens in our public courtrooms, especially the United States Supreme Court. Yes, free speech and transparency are messy things that cause all kinds of problems, but they also have tremendous social force. I completely understand Justice Roberts' viewpoint, and to some extent I agree with it. But, regardless of who among us now agrees with it, the truth is that viewpoint has a limited life-span.

I'm not big on fighting things that are inevitable. I'm more inclined to say: so if it's coming, then how can we create a better transition? But then I'm also not someone who gets invited to talk to judicial groups a lot either.

Comments (1) + TrackBacks (0) | Category: Law 2.0


COMMENTS

1. William Wilson on July 21, 2006 12:47 PM writes...

Having participated in one of the very first federal experiments with cameras in the courtroom, I can offer some perspective. Most lawyers who are worth their salt know that the audience they need to play to is the judge or the jury--only the incompetent will play to the cameras, and those who are that incompetent are incompetent in many other areas of their practices.

As trial lawyers know, when a trial is going on, there is too much to focus on to worry about the cameras behind you. While waiting for court to start, you may wonder if your tie is crooked and whether your suit will look good on TV, but once things get going, the cameras fade into the background.

My worry about cameras in the courtroom is that the television networks and stations have so little time to show what really goes on during a trial that the snippets of video they will show will be taken out of context. The important things that happen during a trial may not always be apparent to the person deciding which video clips will make it into a news story.

This entire issue is merely a subset of my concerns about how well the public understands the legal system. Plenty of people receive their "education" about the system from either TV news or (Lord help us) Judge Judy. The journalists who report on legal cases do not understand the system any better than the audience in almost all instances. I've often wondered what could be done to make journalists understand the system better so they can explain to their audiences better. I'm not certain there is anything, however. Journalists, like many other people, are busy with their lives and work. They don't have the time to learn about the legal system any more than I have the time to (re)learn to speak and write French. I may want to do it, but the time simply isn't there.

Would cameras help educate the masses? Perhaps not.

But Ernie makes a good point about transparency. We no longer have the time to go down and watch the big trial as in To Kill a Mockingbird. Employers won't allow that, nor do the demands of family life. Perhaps cameras in the courtroom will help assure the American people that their legal system is operating properly. On the other hand, it could also give fodder to critics who can take those clips out of context.

A problem in search of a solution--most definitely.

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