Ahead of the Curve

I'm sitting here at the keyboard.  I've got two computers in this room (three if you count the one that doesn't do anything except host the router), one with, as of this afternoon, two monitors.  The smart phone is on the desk with me and the land line with bluetooth headset is within easy reach.

Welcome to the 21st Century.

No, I don't like it all that much, either.  I've got this blog, but not a website.  I'm not on facebook.  I don't twit.  I don't do text messaging.  I'm registered with LinkedIn and have acknowledged a few contacts when people have asked me to, but I've never sought out a contact, and I'm not sure why or how it might do me (or anyone else) any good.  Same with AVVO (which keeps reducing my rating because I don't update my information or solicit endorsements).

My laptop is big, rather too heavy to want to carry around with me any more than I have to, and the state courts where I mostly practice aren't wired anyhow.  I don't have a netbook or an iPad (or an iPod, for that matter), and while I occasionally find myself wishing for one, I don't quite get how either would improve my life or my work in a way sufficient to justify the expense. 

Frankly, I'm too old for all this.  I learned to type on a manual typewriter and still keep one around (though I can't say I actually use it).  I remember the rotary phone fondly (the ones Ma Bell gave us before the feds broke it up, the ones that never broke, ever).  My first instinct when I want to know something isn't Google, it's an almanac or encyclopedia or dictionary.  The dead tree version.

But while I have some ambivalence about all this technology, you don't need to be enthusiastic about the electronic wonderland to understand that it has real utility.

I prefer books, but the truth is that I have a Kindle.  And I do the vast majority of my research on line these days (not with the Kindle, of course).  Why?  Because I can get to far more information, more easily, and pretty much 24/7/365.

I carry the smart phone because e-mail and the web are the way I stay in touch with the office and with clients and with the criminal defense community.

I do electronic case filing in the courts that allow/require it and wish more courts would at least allow it because it's far more efficient than doing paper filing (and carries a few extra bonuses - like meeting a deadline with a filing at 11:59 pm).

I have this blog because it gives me a forum to mouth off, and because it turns out that there are people interested in what I have to say (thank you!), though I don't know that it has any actual utility (unless Scott Greenfield's right and I'm getting a chance at secret influence on the courts). 

The point is that if it isn't all about utility, it mostly is.

But there are still folks who don't get it.

The days of the lawyer calling out to his (pretty much always) secretary to tell her (pretty much always) that she'd better make a copy of that document before faxing it are largely over, but there are still plenty of lawyers who don't have e-mail, don't use computers, and more to the point, don't think creatively about them.

Which brings me to Carino v. Muezen, a medical malpractice case in Morris County, New Jersey.

First and up front, I don't know anything much about med mal, and this post isn't about that.  What I do know something about is recognizing when someone has a good idea.  Joseph Carino's lawyer did.

Internet Cases, a blog of "law and technology" by Evan Brown, gives the gist of the plot.

The courthouse in Morris County, New Jersey provides wi-fi access. As jury selection began in a medical malpractice case, the plaintiff’s lawyer used his laptop to do some real time research on the members of the jury pool. The judge noticed the research taking place and called the lawyer out.

Brown then quotes part of the exchange between lawyer and judge, but I'm taking a fuller excerpt from the court of appeals decision.

THE COURT: Are you Googling these [potential jurors]?

[PLAINTIFF'S COUNSEL]: Your Honor, there's no code law that says I'm not allowed to do that. I — any courtroom —

THE COURT: Is that what you're doing?

[PLAINTIFF'S COUNSEL]: I'm getting information on jurors — we've done it all the time, everyone does it. It's not unusual. It's not. There's no rule, no case or any suggestion in any case that says —

. . . .

THE COURT: No, no, here is the rule. The rule is it's my courtroom and I control it.

[PLAINTIFF'S COUNSEL]: I understand.

THE COURT: I believe in a fair and even playing field. I believe that everyone should have an equal opportunity. Now, with that said there was no advance indication that you would be using it. The only reason you're doing that is because we happen to have a [Wi-Fi] connection in this courtroom at this point which allows you to have wireless internet access.

[PLAINTIFF'S COUNSEL]: Correct, Judge.

THE COURT: And that is fine provided there was a notice. There is no notice. Therefore, you have an inherent advantage regarding the jury selection process, which I don't particularly feel is appropriate. So, therefore, my ruling is close the laptop for the jury selection process. You want to — I can't control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

 I could easily turn this into a rant about dictatorial judges ruling by fiat, a screed about robitis.  After all, the judge did say,

No, no, here is the rule. The rule is it's my courtroom and I control it.

and 

I can't control what goes on outside of this courtroom, but I can control what goes on inside the courtroom.

But I'm not going there.  Frankly, this doesn't sound like a raw power grab (though that first line is pretty clearly a declaration of just who makes the damn rules, anyway).  I'm taking the larger excerpt because of the judge's explanation of his ruling.

See, what I'm interested in is the two lawyers.  The one who saw opportunity and grabbed it.  The other who missed the boat.  The judge saw this as an issue of creating a level playing field (which is generally something favored in civil litigation, unlike criminal law where the field [it's really not play] is supposed to be tilted in favor of the accused).  The court of appeals knew better.

Yeah, trial judges have broad authority to conduct voir dire how they think best and to control the mechanics of their proceedings.  But this time the judge was off base.

In making his ruling, the trial judge cited no authority for his requirement that trial counsel must notify an adversary and the court in advance of using internet access during jury selection or any other part of a trial. The issue is not addressed in the Rules of Court.

We note, however, that on April 25, 2008, the trial court administrator for the Morris/Sussex Vicinage issued a press release announcing that "wireless internet access" had become available throughout the Morris County Courthouse to "maximize productivity for attorneys" and other court users. The press release quotes the assignment judge as stating that the "courthouse enhancement allows court users" to "access online databases." There is nothing in the press release, or elsewhere as far as we can determine, that requires attorneys to notify the court or opposing counsel in advance of their intention to take advantage of the internet access made available by the Judiciary.

Despite the deference we normally show a judge's discretion in controlling the courtroom, we are constrained in this case to conclude that the judge acted unreasonably in preventing use of the internet by Joseph's counsel. There was no suggestion that counsel's use of the computer was in any way disruptive. That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.

Read those last two sentences again.

That he had the foresight to bring his laptop computer to court, and defense counsel did not, simply cannot serve as a basis for judicial intervention in the name of "fairness" or maintaining "a level playing field." The "playing field" was, in fact, already "level" because internet access was open to both counsel, even if only one of them chose to utilize it.

This isn't a post about the dinosaurs who went extinct because they couldn't adapt.  It's not about the lawyers who don't use computers.  (At least, it's not directly about them.)  It's about taking advantage of what's out there.

I know a criminal defense lawyer here in Ohio who just got himself an iPad.  He's been carrying on for a couple of weeks now about how useful the thing is in court.  The Ohio Association of Criminal Defense Lawyers is going to be putting on a CLE in December focused on technology.

I suspect that the problem with defense counsel in Carino wasn't that he doesn't use a computer.  More likely, it's that he didn't think of using it in court to learn more about the jurors.  Not the dinosaur problem but a failure of imagination.  They're not altogether distinct, but they're not quite the same thing, either.

So here are the lessons to be learned.

• The day of the dinosaur really is over.
• Technology works a whole lot better when you have it with you than when you leave it behind.
• The smart lawyer is always thinking about how to take advantage of the situation.
• Make your record, and take it up on appeal.

Oh, there is one more thing I didn't mention.  Carino didn't end up any better in the court of appeals than he did in the trial court.

Nevertheless, we have concluded that Joseph has not demonstrated any prejudice resulting from the trial court's ruling. He has not pointed to a single juror who was unqualified or as to whom he claims he would have exercised a peremptory challenge, even though he has subsequently had the opportunity to perform an internet search concerning each juror. Indeed, inasmuch as jury selection took two days, Joseph's counsel could have researched the prospective juror lists overnight or during breaks, and certainly could have done so before the testimonial portion of the trial started on the third day.

Because, you know, there's one more lesson.

Being right isn't enough.