Experiment in the Fishbowl

Experiment in the Fishbowl
Lessons Learned from the Oklahoma City Bombing Case

Excerpts from a presentation given at
National Association of Criminal Defense Lawyers Conference
Atlanta, GA November 13, 1998

Samuel A. Guiberson

Well, there came a day in 1996, when I fluffed up my pillow, and I turned out the light and went to bed, and thought: “today, you became pretty much solely responsible for organizing, for managing, for implementing, for designing all the computer litigation management and trial presentation, in court and out of court, in what is said to be one of the most historic cases of the modern era. And you know, at that moment I said, yes! This is the professional opportunity of a lifetime! This is the experience of a lifetime! And in the summer of '97, when I was dragging my sorry behind through the outskirts of Denver, I realized that this was an experience you only want once in a lifetime. Because there isn’t, and there never was, and there never will be, a CLE for courses like United States v. McVeigh. You get the big chance to try to elevate your practice, do something extraordinary under extraordinary circumstances, and you either succeed in part or fail in part, but whatever, you come away as in every case with experiences and know-how that you know you can apply to the next case, whether it's large or small, and to paraphrase Nietzche: the lawsuit that does not kill you, makes you a better lawyer. And so, what I want to do today is share with you some of the things I took away from this ordeal, and I want you to know that all the therapists that are working with me since I got out of restraints want me to be out here speaking, so thank you for being part of my recovery process from post-McVeigh stress syndrome, I appreciate that.

Let's try to start from the outset of what's really important about understanding how to use technology in any case. And you might think that what worries us, as we litigate these cases, is what kind of hardware are we going to use? What kind of computers and software will be necessary? And you find out very quickly that that is the least of your worries, that what technology is really about is understanding how to teach people to use it powerfully, to be better advocates. That's really what it's about. It's not about learning hardware and choosing which software package to use that's easy! I had that done in the first day.

The problem is learning how to use technology to overcome the human crisis that every lawsuit really is. And that's why I say technology is the bridge over the river chaos. At so many levels, sure, as Dennis was telling you, you have to be able to find the one piece of paper in the million, you have to be able to find the facts within a multi-channel, broad-bandwidth, omni-communicative society like ours, you have to be able to find the image, and find the video, and find the audio, and really, find yourselves in the center of such a tortuous and physically demanding, and psychologically demanding process. So, technology becomes the way of unifying different people. There wasn't just one big lawyer in the McVeigh case, there were, perhaps, seven or eight, as I recall, different law firms'lawyers with different legal backgrounds, some had never practiced before, some were expert criminal defense lawyers, some civil lawyers. A very different group of people that had to be integrated into a law firm, a one-case law firm, using what? Using technology, using the common media of working through the computing to find the resources that they would need to be effective in trial.

There's information chaos—and that's what we all know computers are very good at resolving, but there's also the human chaos. And creating a community, creating an organization through a computer system, a sharing, learning the process, learning how to use it, sharing information, sharing techniques, that too, forges a kind of community that is the most important part of every successful team litigation.

So you focus technology on people, process, and persuasion, and not on products. You know, you hear, I think some computer company tells you that the computer is the network, but in today's practice, especially in complex litigation, quite ironically, the network is the organization. The extent to which you succeed in creating a useful network of information exchange between people, at all levels in the organization, be it an organization of three, or of thirty-five,that is the extent to which you can work as a team in pursuit of the tactical information that you need to win the case.

Well, okay, since litigation is about people and not products, it only makes sense that you don't presume upon every new facts situation, the technology that you used in the last case. One of the things I've learned is that you don't start with the technology, you begin by understanding the people and the unique qualities of the case you find yourself in. And then you apply the technology, the applications, the computers, the techniques that are best suited to the people you're going to be working with, and to the kind of case you're going to be dealing with. It doesn't do you any good to have technology, if there is no human advocacy flowing through it, if there is no soul to it. It doesn't do you any good to be using Power Point if your point has no power.

The first thing you must do when you apply this kind of media to advocacy is learn to distinguish special effects from being especially effective. So you start with the case, and then let the technology fall into place based on the kind of case you're dealing with. A lot of old-timers would tell you that information management and the techniques you use to visualize information in pursuit of an advocacy for your client, is their, that's somehow separate, separate from the process, the charisma of oral advocacy. It's simply not the truth we live today, nor will it be the truth we live for the rest of our careers. Trial tactics are information tactics, because the information you can't realize out of a million documents is not available for you to use tactically in court. If you don't find the words, find the pictures, find the images, you won't have tactics. You have to have a capacity to put your arms around the information. Oh, okay, I don't try huge cases. Well, that's okay, but you're going to find that, as we employ more image, more audio, more sound, as the evidence itself becomes more technologically based, you're going to find yourself working with more complexity in even the simplest fact patterns. So anyone who underestimates the decisions you make about how you will organize the evidence for something that is secondary, to the process of understanding how you will win the case, has made a fatal flaw from which they will not recover, and only more so, the larger the case grows.

So, we're talking today a lot about presentation and the use of demonstrating evidence in court. But I've always had a different theory, and that is, since we're using computers in court for the lawyers, as well as using computer techniques for the jurors, there really are two demonstrations going on, two sort of parallel processes, and you have to serve both equally well. And that is, you have to be able to bring all that you know about the case, all the methods you've developed, all the materials you've researched, and structured out for your litigation support, to court, in a way that allows you to continue to be just as effective as the way the case proceeds in court as you were in preparing for that case.

So, you try to use the simplest means of presenting the information. You do that because you can't assume that everybody knows the same programs as you do, that when you're working with another law firm across town or all across the country, that they are also using big foot six database, or some other product, Word Think, whatever it is, the languages don't mesh very well in technology. So, you try to work down the organizational system to the very most common denominator. And in the McVeigh case, because we were working with people of all different kinds of technology backgrounds, as well as legal backgrounds, we simply employed, as you see, the basic Window structure. We just added into the Windows interface every component of the case, breaking it down, so that each person on the defense team could find what they need, and work with that specific zone of information while others were exploring other types of information simultaneously.

And this is so important to me. Managing information means managing to get information, not to those who know the most about technology, but to those who know the least, who have no clue as to how the page they're seeing on their monitor got there, or what application it's in. To be successful in complex litigation especially, you have to find a way to raise all boats; you see, to make sure that no one is compromised because they do not have the same level of technical sophistication as your in-house guru. So that's what's important, that keeps the good strategy, to always keep it simple. Simplicity is a virtue in litigation management, in litigation support, and in courtroom presentation.

It is not a good idea, I have found from working big and little cases, to try to dump everything into one big bucket of facts you carry around with you. It's a good idea to try to use your good minds to think of ways to break down information into components, so that you do two things. One, is it's easier to access that way, and secondly, it's easier to use the process of organizing information to master that information. It's not just about'see, the process of getting your arms around the facts doesn't begin once you get all this into a computer system. It begins when you first sit down and think, how will I accomplish this end? Because it compels your mind to think, to structure the case as you might not otherwise do until shortly before trial. You have to try to anticipate how the evidence will flow, how the testimony, and how many witnesses, you begin to think in terms of abstractly organizing how the case would proceed.

Now you say, What do you mean? I thought you just went and got the program, and you did whatever the program told you to. Nothing could be more wrong. What you do is think about the first day, the first day you begin to prepare the case with the computers, thinking in terms of using the computers. You start from your sense of putting yourself in the place you will be in when the trial begins. Because the only thing that's going to be useful to you then is going to be what works at trial. So, what works for some propeller-headed computer expert is irrelevant. The only thing that you should spend your time and money on are those processes and technologies which you know you will be comfortable with at trial.

When they get bigger, they get obviously, more complicated. And organizing, and understanding what is organized, is really the same process. So, you've got to pay a lot of attention to making sure that everybody working with you has a complete grasp of how the information you've assembled is organized, that they can use the capabilities that are there. Because it obviously does no good for you to burden your client with the expense of a complex litigation system, and complex in-court technology if not everybody from the law clerk to the top trial lawyer' understands how it works. This notion of creating a hierarchy of experts and non-experts in the litigation team is nonsense. Everybody's got to be able to do everything. This is a renaissance time, this is renaissance technology, everybody has to understand every aspect, or the team is inevitably weaker.

Continuity in technology—what you know how to use at home, with your kids, in the office, is the technology you ought to use in court before the jury. And the reason for that, is that there is an authenticity, there is an authority, a credibility, that comes from using software you know so well before the jury. That is communicated, it translates clearly. Some lawyers think that they should have evidence butlers, that bring, you know, the technology before the jury on crushed red velvet pillows, and that, somehow there sits a formality in the courtroom that is different than just hunkering down over your home PC and doing your work, not true. The jury senses the artificiality of that. You've got to use the programs that you use every day. If you don't feel comfortable sitting at home using a program, don't ever show up in court with it, because it will fail on you. And you have to have the comfort level to correct that error and not feel like you're handicapped by your ignorance of this highly specialized software.

It's important to let there be that continuity also, because you will need to do something in the midst of trial, in that moment with maximum tension and pressure, and you better had know that program as well as you know the palms of your hands; or you won't be able to respond to that crisis and pull the information to the fore, where you need it in front of the jury.

Lawyers, not courts, not experts, not consultants, have to be in control of their own technology, in court and out of court. This has happened, this is the hard lesson of this case. Let me tell you first, that this lesson was learned by the government. And I just, I want you to just a look and familiarize yourself with this, because of the way things are going to go here in the next few minutes. Just take a moment to look at that, and read that, so you have an idea of what you're about to witness.

One of the most evocative pieces of evidence I've ever encountered in court was the government 's recording, incidental recording, of the explosion of the Murrah Building in Oklahoma City. The power of that evidence was so profound, that it was the keynote of their case (recording played).

Unidentified Female:            “(unintelligible) this proceeding, basically, there are four elements that I have to, uh, receive information regarding

                                                            (explosion)

            Child:                                      “(unintelligible)”

            Unidentified Female:            “(unintelligible) everybody’s okay here!”

Unidentified Female:         “(unintelligible). Out the back door! Go out the back door!”

Unidentified Female:            (unintelligible) back door.”

            Child:                                      “I can’t get out”

But, at the moment they played that at the beginning of the case, this is how it sounded (plays same recording). What had happened, is that between the time they set up before, and the time the tape was played, quite inadvertently, some courtroom personnel had turned the volume down. So that the impact of this most critical component of their persuasion, was lost on the jury. It sounded less like a cataclysmic explosion, and more like that. Why did that happen? It happened, because the lawyers were not in control of the technology they were using in court.

There is, in the judiciary, State and Federal, a reluctance to give something so alien to their experience over to the counsel, and not to hold control, like some wild animal that might wreak havoc in the courtroom. So, in that particular instance, it was decided that the court personnel would control the "go" switches. They would have the power over the levels and the controls that would present the evidence. And although those people working in that case were models, I mean, they were the best, smartest, most helpful, productive people, it is inevitable that people who are trained as courtroom professionals cannot, overnight, acquire the expertise necessary to troubleshoot and present high technology evidence in court. This is a given. So the consequence was, that if you lose control of the presentation of the evidence to the court, then you've really lost control of your technology advocacy. And that's something worth fighting for. It's important to bring this up early on, so that both sides, it has equal value, because this certainly happened to us too, in other instances, perhaps less profound, but that you maintain control over the demonstration, the presentation of your evidence, just as you control what words come from your mouths in closing. It's just that significant. It literally has the same level.

Now in the courtroom, we had of course, we're all familiar with this technology, a presenter, and we used multiple large monitors; and this did expedite trial, and it does accelerate the presentation, and communication of the evidence. But unfortunately, today, a lot of people, a lot of lawyers, and even technologists, think that this is sort of the limit of what should be done on a day-to-day level. Now, on our side, our lawyers felt much more comfortable using the physical documents on a presenter. And, as I said, they took my advice, you use what you're comfortable with and you don't use what you're not comfortable with.

However, a sacrifice is made, because no matter how high-tech, if one uses only one media to try to bring across the message, you will dull the sensibilities of the jury. Now, I know there are lots of lawyers in this room and others that think, my charisma is such that I can carry my words into the souls of the jury. Okay, but can you do it for three months straight? I doubt it. Maybe an hour-and-a-half, but not three months. Ultimately, every courtroom becomes a mundane place. And the way we can acquire, we can raise the level of energy in any advocacy in court over a long period of time, is to employ many media. Not multimedia, that's sort of a tie-dyed, pimply-faced kid with glasses and a joystick, I'm not talking about that. I'm talking about understanding that law practice today in court has less to do with being "wordsmiths" in the image of Sir Thomas Moore, and more to do with multi-channel, broad bandwidth communications, being "wordsmiths", "Imagesmiths", "videosmiths", "soundsmiths". You have to be a master of all those media to advocate effectively in courtrooms today and in the next century.

That's what advocacy will be. We have to rethink what advocacy is, it is advocacy in many media, and not, alternatively, in a monochrome of a single-type display technique; but an integration of many different types of media, different ones stimulating people. The idea here is stimulus, of course. To keep them thinking with you. And to use that, you use color, you use different media, you alternate, you bring different dimensions of the same facts. Use many media to attach different images, different mental signatures, to the same idea or emotion. Now, the government did a good job of this.

I would like, someday, to be in a position to use the kinds of tragic personal stories that the government had available to them in this case, to move a jury into a sensibility about my client and about the facts of the case. This, of course, is the high-tech end. They took chances, and they tried to apply the message in many different media. They began by giving one an overview, a very technical overview, of each level of the Murrah Building. And this was sort of the format from which they would proceed. And then, they took it into a less high-tech media, and produced witnesses with the narrative stories, identifying each individual who worked at each desk on each floor, at the time the bomb went off. And, in so doing, they continued to stimulate, subliminally perhaps, to stimulate the jury with different ways of presenting the same idea: that these people were loved, and suffered, and died in the explosion. And that was, it was a profoundly effective technique, because they understood that any single demonstrative aid would not have been nearly as powerful as the combination and synergy created by all of them overlapping one another.

The two are not different, folks. How well you use the technology is how well you make your case. But, when you put technology in a courtroom, you don't put it in the physical space of the courtroom. That's irrelevant. You think about, as the government did in the McVeigh Case, the emotional space, the trial space that is unique for every trial. The unique combination of people, places, issues, that makes a trial unique and idiosyncratic.

One of the problems we had, is that, and it was a wonderful job, the installation in the courtroom had monitors there, there where we see the red dots, myself, my associate, McVeigh, Nigh, Jones; and they were fixed in the desks. They were part of the furniture. Unfortunately, technology in court is not part of the furniture. It is part of the living process of trial. And that, by sheer coincidence, not by design, put the folks that had the very least experience working with computer resources, in front of two of the four monitors the court had located inside the courtroom. And that was necessary, what we ended up with was necessary, because there are other things that overlay the physical space and the trial space, and that is the physical relationship between counsel and the defendant is far more important, the jury lines of sight--more important. So the technology has to be flexible enough, and you have to fight for this in court, to get the technology flexible and dynamic enough in its installation, so that it works in congruity with the case before the court, and not as if it were just a chair or a table that is immovable, and has no rapport with the particular people and facts of the case at hand.

There is all this talk, I mean, at technology conferences: "oh, what will the court of the future be in the year 2001, 3001?" The fact of the matter is, that everything that is a part--today, tomorrow, and the day after tomorrow--of the "law office of the future," technologically speaking, should be and will be in court. That's what we did. We brought the same capabilities that we had in our offices in Houston and in Denver, into the courtroom; so that there was nothing that we could not do during court, in session, that could be done at the office. That's why you can't let courts get caught up in fixed installations that become obsolete the day they are installed.

The technology is so dynamic, our creativity as lawyers is so dynamic, that we have to be able to move forward to translate the mistakes we made last case into a good idea for the next, without being tied down to technology that got sold to some judge six years ago. You must think that you should never be shorted in court, you should have everything there that you would have in a law office.

Now, this is a schematic of our installation in the courtroom in the McVeigh Case for the defense side. This particular computer here is the server, which essentially, mirrored everything we had in Houston and in Denver. These computers were there, of course, for the counsel, me, my associate Maria Ryan, to lead trial counsel. We had printing capability, we had, of course, faxes in and out, email, the laptop computer was sort of a mule, we used it to transfer large files back and forth. But we also had a lot more than a high-tech installation. And the reason we did that, and I say we talked earlier about the two simultaneous lines of demonstration going on in court, what would appear on these various monitors was not just what appeared on the big monitor for the jury. We had on each computer, essentially, electronic portfolios of all that we had in our system on every witness that would appear that day. We had the ability to communicate between counsel and chat from one counsel to the other without looking ridiculous, passing notes. You know on those cases where there are forty-seven lawyers around the case, and you're trying to prove there is not a conspiracy? Well, folks, you prove it when you go like, "here, pass this note to Fangtooth's lawyer," and then you go (gestures). And all that cooperation tells the jury, "oh, they need to know about whether there's a conspiracy or not." But, in our case, we could sit at the keyboard without uttering a peep, and go, "you ignorant moron, why did you ask that question?" "Don't tell me how to do this, I'm handling this case!" You see, you have the capability to mask before the jury all kinds of discourse that you might have between counsel if you were scribbling on notes--very effective way of doing it. You remove all that visual queuing of the jury that you're all collaborating with each other in trying to get the whole table to go home.

And of course, you have to be able to monitor, you have to be able to do your work with the litigation support as you sit in court. Because one thing about our courtroom, was a little different than others, is that, once you went inside, it would have been easier to jump out of a seven forty-seven at forty thousand feet than it would be to get out of that courtroom. There were the burly guys; it was similar to the experience of being closed in Pharaoh's tomb, you know, until the next break, you are there. Nobody gets in, nobody gets out. So, it became powerfully important for us, what essentially happened, is you'd have this mammoth litigation, and every decision maker in the case is locked up in a room for eight hours a day.

Think about, how would we proceed? How would we continue to investigate and administer and manage this operation, being locked up in a room for eight hours a day? And the way we did it, is we had ISDN lines, we had dedicated access to the Internet in court from every workstation, we had a wide-area network with constant linkage between the office in Denver, and even down to my office in Houston, we had email and chat between the courtroom and all defense team members in and out of court; meaning that investigators out in the bush somewhere could use their laptops to dial into our servers, and we could be talking, as I sat there in court listening to the evidence. You know, I mean, I wish we'd put it to a higher purpose ("you never told us this person..."). But we did have that capacity, and the benefit of that was powerful because you could simultaneously progress your investigation, progress your case management, think of it for witnesses! You know, I would be able to, I was managing the (unintelligible). I was saying "we've got about five more minutes, hold 'Mr. Pidadeu' and have him wait five minutes," and everything was staged from the courtroom electronically. Not to mention, "my God, I forgot my brief!" You know, "communicate it over the wire, these are the questions I've got to ask, you've got three minutes." You see, the computer system allowed us to overcome human frailties like forgetfulness, and like not having something prepared on time, and folks back at the office could be, "how long till we get those questions typed?" "About six minutes. I will transfer them to your desktop." You see?

And that, although this is of course a complex case with a lot of complex resources, I tell you now, save and except for the ISDN line, and the dynamically-encrypted "la-di-da" that was foisted on us by the high profile of the case, I used to say that you could get everything you needed to do litigation support in criminal cases on what a paperboy makes. Now, I tell you you could get everything you need to litigate cases that approach this level of complexity if you're a paperboy who's lost his job. It's free. Now, with all due respect to Holland and Hart's marvelous installation, many of those same things can be done without the level of complexity that is apparent from that, and that sophistication of technology you witnessed.

Litigation of course is local, we try a lawsuit in a place. But preparation is global in the sense that we no longer need to think of ourselves as restrained by the scope of legal precedent, and the facts of our case, because the Internet has changed that. Whether you are doing a complex domestic terrorism case, or a dog bite case, I guarantee you as I stand here that there is information in the Internet, in a chat group, in a special interest group, in a webpage that is valuable to you and your conceptualization about how to make your case, and there may even be facts there, and fact patterns so similar to yours growing out of some "chihuahua bites man" story, somewhere on this globe.

The expansion of the domain of information we have access to makes it inevitable that somewhere out there is something that can help you. And one thing we were very interested in, and albeit it only relates to high-profile cases, but, during the McVeigh Case, we were monitoring everything that was being said about the case on a day to day basis from six to eight months before, well six months is when we started, everything that anybody was saying. "Well, I remember I was there on Tuesday, and I saw some snipper dogs down by the courthouse." Whoa! Bing! Antenna. We were investigating through the Internet. You know, you used to send your investigator out into the town, and he'd go to the community where the crime happened, and seek out people--the community is global! There are people who want to tell their stories, whether they are real or imagined, that will go to the Internet and tell them. And you might get leads, you might get related facts, or outcomes that would matter to you; so it's a very important resource that really no case is too small to exploit.

Talked about this total communication, wide bandwidth. You have to have the beat, to be a good lawyer today. The beat, media rhythm, the ability to balance the different media to maintain the pace and intensity and stimulus and entertainment value, folks to be straight out, to make your message heard. And that is because, today, the truth comes in all sizes, of words and sounds and moving images. And what I'm going to play for you now is a series of components, of video components that were part of the sentencing phase, when it became our responsibility to try to humanize a defendant who had only been defined in terms of atrocity. Tell me, honestly, if what you know of Timothy McVeigh, that what you see, doesn't change your perception. How does this (unintelligible) work? Let me see if I can get a video here anyway. It's a slow roll, but you'll see.

What you saw was, of course, Timothy McVeigh's dad. And, on that little tractor, was the man convicted for killing a hundred and sixty-nine people, with his sister, who testified for the government (video plays). Kill that, we don't want to do that again (video stops). There we go.

The paradox of living with media, now this, again, trying to convey to the jury the influences, the psychological influence which has affected Timothy McVeigh and gave him the view of the world that he possessed at time of trial, this was taken, cut by uh, well, I cut it from a video found in his possession; and hence it became part of what his state of mind would be, it will attempt to capture what Tim lived through as a veteran of the Iraq conflict. And he was a gunner on a (unintelligible) carrier. We were trying to capture the intensity of modern conflict and convey, I think, in a six minute video which we played while his war veteran buddies extolled his soldierly virtues and called him a Sergeant's Sergeant, one of the best military men they had ever met. The paradox of living with media, is essentially that our life histories are a fabric of media today, and that our media is a fabrication of life. So the two have become so interwoven, that we need to explore the possibilities for developing the humanity of our defendants through the use of the media that they hold dear (video plays). This is the third influence on Timothy McVeigh. This is FBI footage. If you're trying to make a point about the connection between state violence and civil violence, those images do it, in my opinion, powerfully (video stops).

Video, as we sense, is visceral. It is advocacy to the gut (video plays). If you're trying to convey how a person is changed, tortured by contemporary events, this is a means to that end. Give me a little more volume please, if you will.

When dealing with audio, think of it as radio, and by that I mean radio in the old days, when it was the only media; and we, our parents, grandparents, sat beside their radio sets and visualized the action and events and people that they would hear told on the radio shows of old. Radio allowed us to invest our imagination into the audio signal and stimulus that we were receiving. We played some audio in this case, and I'm going to start with this one (recording plays). That was a recording of this contrite and clean-cut witness who appeared in the courtroom quite a changed man from the way his appearance and mannerisms, when he was not in a cooperation mode. And what we did in this is not what I usually do in tape cases, is essentially deconstruct the content, the language of the recording to try to defeat the presumptions of incrimination that exist in the media itself. What we tried to do was simply impeach by contrast, and that is, say "yes, he is wholesome, he is clean, he is a college boy today, and he has told you his narrative, but let's listen to what he was like before he found his favors with the government." A little louder (recording plays).

Bottom line, technology is the lawyer's aid, of course that's what we focus on, how it can help us make our cases. But if you're really good at it, if you really capture that, and find that rhythm of being able to use this in an integral way with your words, with your own physical movement, your video, audio, if you find a way to weave it into one, the jury will perceive it as their tool. They will see it as the means they used to find the case you made. Thank you very much, I appreciate it.