Catching up with technology in the courtroom

June 1, 2011
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By Dustin Seibert

Business at the Cook County state's attorney's and the Cook County public defender's offices hasn't seemingly changed much on the surface during the past few decades.

But while cases, clients, crimes and the bottom line look about the same, the road to a trial's end is now paved with computer screens and plenty of high-tech audio visuals and digital tools unlike anything seen in the past.

Courtrooms are more high-tech than ever before. And the drive is on for both offices to compete in a zeitgeist where their private firm counterparts often outshine them in the technology arena. At the same time, juries are increasingly tech savvy and prone to believe what they see on procedural courtroom television shows.

In 2011, getting "plugged in" is no longer an option. But getting there hasn't been without its hang-ups.

Assistant state's attorneys know that Mark Shlifka and Scott Horowitz are the men to find if they wish to create a top-shelf multimedia experience for the courtroom. Just take a look at the manila folder stuffed with requests for Shlifka's assistance.

As the executive assistant state's attorney and director of continuing legal education for the office, Shlifka was tasked in 2009 with training state's attorneys on the finer points of technology.

"The people sitting in the jury box today, younger or older, aren't the same people that were sitting in there 10 years ago," he said. "Almost everybody receives their information in digital format, whether it be on a smartphone or iPad or Kindle or whatever the case, they're online every day, receiving their info in a new way."

Attorneys constantly need to respond to jurors' misconceptions of what truly goes into all aspects of a case.

Shlifka has a name for this phenomenon: "The CSI Effect," after the popular television show "CSI: Crime Scene Investigation." Attorneys on both sides acknowledge the burden of the program.

"Jurors are watching a lot of television for entertainment, which they equate into reality," he said. "They have what I believe sometimes are unrealistic expectations about how cases are tried."

Shlifka said technology is essential for jurors to relate to prosecutors from an empirical standpoint: 90 percent of jurors are better equipped to understand evidence when evidence presentation software is used.

And within the course of the average three days it takes most Cook County cases to elapse from jury selection to closing arguments, jurors can retain 65 percent of what they see and hear versus just 15 percent of what they only hear, he said.

"Not all cases have DNA, gunshot residue or fingerprints. But when you can present your evidence in a scientific way, it feeds their need for science," he said. "It's like methadone; it's a substitute for the real thing."

Shlifka used to teach mandatory 3½-hour classes in the audio visual room in the Cook County Criminal Courts Building basement before a major thunderstorm last summer resulted in a flood that destroyed the room's equipment.

Now as the room is being rehabbed, Shlifka works with attorneys individually; he dedicates about 20 percent of his time to technology training and presentation preparation.

The team has been paramount in helping co-workers like Felony Trial Supervisor Patrick McGuire, who utilized Shlifka when working on the case of Andre Crawford, an alleged serial rapist and killer from Chicago.

A mixture of crime scene photos and 11 video-taped statements helped McGuire and his team obtain a life sentence for Crawford in 2009.

"Scott and Mark made the presentation of the case so much smoother," he said. "I was on board [with technology] before, but at that point I was telling everyone 'we gotta do it.' "

McGuire oversees 20 attorneys, all of whom he encourages to develop a feel for creating solid multimedia presentations in the courtroom.

"I tell people to get to Mark and Scott as quickly as possible," McGuire said. "If you get everything to these guys ahead of time, it's never been a problem."

Abishi C. Cunningham became Cook County public defender following years as a Cook County Circuit Court judge. The technology he witnessed during his time on the bench at the Daley Center motivated him to implement technology initiatives in his new position.

"One of the judge's main goals when he came [here] was to bring practices that were fairly common in the private law firm communities and one of the big ones was technology," said 1st Assistant Public Defender Pat Reardon. "He was in a courtroom where a lot of big stuff happened, with up-to-date, hot technology on both sides."

To accomplish that end, Cunningham hired Assistant Public Defender Christopher Garcia, who has about 15 years of experience working with TrialGraphix, a consulting firm that trains attorneys in trial presentation software. Garcia gave a TrialGraphix continuing legal education seminar to the office's chiefs and supervisors last year.

"We need to incorporate what they do with the attorneys in this office so that they become more technically proficient," Garcia said.

Cunningham asked Assistant Public Defender Joel Simberg, who has been with the office since 1998, to serve as the office's unofficial technology guru. In May, Simberg started directing the office's new pilot program, making his duties more official and providing him more visibility in the office.

"This pilot program's gonna solve the problem of people who don't know I exist," he said. "[Technology] is a real movement here. This wouldn't have happened in previous administrations that didn't realize the importance of this."

Simberg started teaching technology skills to attorneys nearly four years ago. In addition to teaching a litigation technology class at DePaul University College of Law, he teaches hands-on courses to groups of 10 public defenders twice a month.

"There are certainly some attorneys that don't have any tech skills at all," he said. "Some even have trouble working a mouse, but we can teach all of them."

Both offices utilize a wealth of software in and out of the courtroom. Likely the most utilized program is Microsoft's PowerPoint.

PowerPoint contains many tools that allow users to create dynamic visuals for the judge and jury, which is where Shlifka and Simberg come in.

Shlifka wants to get his attorneys to avoid looking at PowerPoint presentations as linear, text-stuffed entities that are more sleep-inducing than informative. His interactive "home" menus allow users to click a button to move to an individual slide before returning to the menu and moving to the next one.

"I don't look at it as a line, but as a wheel with spokes. From the center you can follow a spoke out to the middle, then back to the center," Shlifka said. "Once you see it like that, you aren't using PowerPoint as you know it anymore."

Like Shlifka, Simberg said he believes that the conventional PowerPoint presentation is ineffective for judges and juries alike. He said PowerPoint is not the only thing he teaches attorneys, but it is among the easiest program for them to pick up.

He trains them in everything from the basics of slide creation to creating diagrams of car accidents.

"I teach how to use graphics, visual images and how to present evidence," Simberg said. "You may not actually ever need that diagram, but once you can create it, you can do so much other stuff."

Reardon delivered his first PowerPoint presentation — on public defender caseloads — at the University of Illinois College of Law in Champaign-Urbana in March. He said attendees were receptive to the information in the slide show, even asking him to double back to a slide containing a colorfully presented statistic.

"The only reason I was able to do it was with Chris' help, and I still managed to screw it up a bit," he said, laughing. "But it still made a profound impression ."

Though PowerPoint is invaluable in the courtroom, attorneys from both offices strongly contend that it can't be used as a crutch to replace conventional lawyering.

"People often throw up the same text they're reciting [in a PowerPoint], so they are giving a presentation that's competing with them," Garcia said. "The images should stand on their own. You should be able to get my themes without me saying a word."

When Reardon delivered his presentation at Illinois, he prefaced it by pulling out an old, worn Nokia cellphone and holding it up to the audience.

"There are all these law students in this big auditorium and they all have their laptops on their laps and smartphones out. I told them when I started, 'you're gonna hear a talk from a guy with a phone that only makes phone calls,' " he said. "It was like [I'd] brought in this fossil."

Having started practicing law in 1975, Reardon represents the old guard of attorneys that spent most of their careers without the use of smartphones, wireless Internet and high-definition anything.

"There are some people like myself who are sort of Luddites that don't understand this stuff very well and need support," he said. "I see the value of it, but I'm not very good at it."

"There are some who wanna embrace it and some who don't," Shlifka said.

He said they don't embrace it because they disagree with it — "they're just not comfortable with it."

Simberg said just because lawyers use high-tech gadgets like iPhones in their private lives, doesn't always mean they want to use that same level of technology in the courtroom.

"It takes more effort to do this stuff … you have to be ahead of the game and well-prepared," he said. "Every time you add [technology] you add a degree of difficulty in which something can fail. That's a scary thought to be out there in the courtroom and have that … you always need to have a Plan B."

Assistant State's Attorney Ruth I. Gudino, a 14-year veteran with the office, admitted to being initially put off by technology primarily because change was disconcerting.

"It is very intimidating to use technology because we're creatures of habit," she said. "We're used to using papers and doing things certain ways."

Not long after joining the state's attorney's Felony Trial Division in 2005, Gudino asked Shlifka, then her supervisor, how she could position herself as a better attorney.

"Of course Mark said technology, at which point I hyperventilated and said 'give me another suggestion,' " she said. "He told me 'it's not really that difficult.' "

Gudino said Shlifka coached her through everything she needed to know, including how to stave off the "panic mode" that could occur if the technology ever malfunctioned and she lost her argument. Now, as a felony trial attorney under McGuire, she's a technology pro- in-training, helping her less-adroit co-workers develop their own presentations.

"I was fortunate that Mark walked me through in baby steps," she said. "I'm not [familiar] to all the possibilities and options available to us, but I am more comfortable with it. So by the time you do a murder [case] with me, you're gonna be a star."

Indeed, it's some of the younger attorneys that have the easiest time learning and getting adjusted to the technology, said Simberg, who teaches many 20-somethings at his DePaul classes.

"I move so fast with them," he said. "Things that used to take me two full classes with everyone else … take only a couple hours."

Shlifka is living proof that people of any age can segue into using technology in the courtroom — with no formal educational background or natural compulsion toward computers and electronics.

"I wasn't a computer geek or in the AV club in school," he said. "I'm simply an attorney who learned how to use this stuff."

Simberg, who also has no formal computer training, echoed his sentiment.

"I'm just not afraid to tinker," he said. "I realize by and large that I'm not gonna break anything, so it doesn't scare me. And that's what we need to teach the lawyers ."

Changes in technology have never been more difficult to keep up with than in the past decade.

Veteran attorneys like Reardon and Garcia spoke of a time when they used chalkboards to visually strike down the points of opposing counsel. Shlifka and McGuire remembered when cutting and pasting briefs literally involved cutting typed lines with scissors and pasting them on to a document.

These days it's all about smartphones in everyone's hand and the social network era, all which can be manipulated in the courtroom to the attorney's benefit, Shlifka said.

"Smartphones have changed jury selection — if you have the time," he said. "You can take a look at a juror's Facebook page and nothing is wrong with that. We can easily connect to the Internet, quickly search their name and get all kinds of information."

Shlifka, who also does media editing, said the utilization of video footage in the courtroom has been essential to winning cases. The office's technology allows both offices to transfer videos from foreign software to their own PowerPoint files.

"Video cameras are everywhere; currency exchange, city of Chicago pole cams, gas stations," he said. "Different camera angles streamline everything."

Cutting-edge technology in the courtroom is perhaps best represented in the Nomad Technologies presentation station; a rolling cart replete with video screens, laptop computers, DVD players and various multimedia materials.

The model both offices use in court costs about $45,000. Shlifka and his team have replicated the Nomad with updated components for about $4,000.

Gudino demonstrated how she used office technology to create a presentation for a 2010 gang murder case.

When delivering her open-close argument, she presented a convenience store surveillance video of the man shooting his victim, interlaced with pictures showing the gunshot wounds on the corpse.

"We always argue, 'If you follow all the pieces of a puzzle, you'll get one complete picture,' " she said. "Using technology, they can now actually visualize what the complete picture is."

McGuire, who started as an assistant state's attorney office in late 1989, presented evidence in his first trial by holding up an 8-by-10-inch photograph to the jury.

"I learned to walk slowly so each jury could see it," he said.

"Even back then I knew the visual aspects were very important."

Today, McGuire uses high-definition screens to show his pictures: three 13-inch televisions for the witness, judge and defense, along with a 50-plus-inch high-definition TV for the entire courtroom. The process is far more practical than the now-obsolete practice of having jurors pass physical pictures down the box so each can have a glimpse.

"It was slow and time-consuming, and it detracted from the trial," McGuire said. "It's more effective to just put it on the screen and talk about it at the same time."

Shlifka said he'd like to see the Cook County Criminal Courthouse retrofitted with advanced technology and the incorporation in the courtroom of multitouch technology, like that found in films like "Minority Report" or what sports analysts use on ESPN.

The public defender's office, however, has less far-reaching goals to accomplish immediately. In a cash-strapped office of a cash-strapped county, the office tries to keep up with the technology that the competition's capital litigation fund provides.

"We need to strive for parity with the state's attorney's office," Garcia said. "There are lots of ways we have fallen behind, and it's nobody's fault, but we need the resources."

Cunningham's vision to make the office a modern courtroom has been difficult considering challenges as menial as getting the county to wire courthouses so that floor AC plugs work.

"The judge wanted for each of our lawyers to enter a courtroom and have [technology] at their fingertips, to be able to walk in with a laptop and just plug in," Reardon said. "At this point, the other team has it and we don't. We have to go back to our desks at the office [to get information]. By the time we do that, the judge has already made his decision."

Public defenders currently use a system requiring them to sign out laptop computers for trials and return them in time for co-workers to use. Simberg said he happily uses his personal laptop to try his cases.

"If I had my druthers, I'd give everyone in the office who wants one a laptop and load it with the appropriate software," he said. "I can't build a case so well if I have a hard time taking [equipment] home."

Simberg said, despite being stretched thin, he and his co-workers are dedicated to ensuring that all public defenders are technologically equipped. He recalled a time when he drove from downtown Chicago to meet halfway a public defender trying a case in the 5th District court in Bridgeview to get her the proper materials and run her through the presentation.

"This job has always been about getting it done for people," he said.

Anyone involved with courtroom technology agrees that while it might enhance a lawyer's argument, it certainly won't decrease the workload — in fact, it's quite the contrary.

"Putting this stuff together and loading it up is quite a lot of work," Simberg said. "The presentation is an aid, but it won't win my case in and of itself. I can't just hit the play button."

Garcia said the mark of any skilled attorney lies in their relationship with the judge and jury, regardless of how flashy the on-screen presentations.

"[Technology] is supposed to enhance our argument, not make it," he said. "It doesn't make irrelevant evidence suddenly more compelling. You still have to work and you still have to be a good lawyer."

Perhaps the only disadvantage to preparing for advanced technology in the courtroom is the possibility that attorneys might use it as a substitute for actual lawyering — something Shlifka and Simberg go out of their way to inveigh against.

"There are good presentations and bad presentations," Shlifka said. "The attorney who thinks the presentation is a substitute for lawyering is giving a bad presentation. The tail should never wag the dog. You don't back up the presentation, it backs you up."