Click to launch the program guide
To begin each segment of the program click on each frame from left to right.

PowerPoint presentation from a speech given at LegalWorks '98
New York, NY  September 17-18, 1998

 

 

Samuel A. Guiberson

 

Well, in the retelling of great trial experiences, the victor always gets to show the full range of the persuasive evidence and the loser gets to tell you the meaning of it all. What I'll try to do is convey to you some of the lessons that I think will teach you, not how to try United States/McVeigh again, because there may never be a case with that same set of elements - political, legal, personal. What we should all try to draw from any trial experience we have is what can we take forward to the next one.

One of the things that you have to recognize about a case of this magnitude is that there is no CLE for United States v. McVeigh. Everything about a case of historical dimension creates a torsion, in the people and the process itself. You have to be prepared for a case to change you and to change the way you think and for things to go unpredictably. If the case is unpredictable, as truly every case is, we can't proceed from a set of assumptions about how technology should be applied. We have to draw from the unique qualities of each case, those elements in that case which dictates how to use technology. You know, just as you don't put your hand in the same stream twice, you don't operate in the same litigation more than once. So each time you choose technology to apply to a particular case, think through what evidence will be in the case you are preparing to do the technology in, rather than assume that the same technology you learned how to use in the last case is the technology you should use in the next one.

Trial tactics are information tactics. And by that I mean, how you choose to develop, to evolve, and to master the information in the case, certainly one as massive as McVeigh, dictates, you see, what trial tactics will evolve from the lawyer's knowledge of that information. Without the technology, without the litigation support, it would have been impossible even to comprehend the significance of so many tens of thousands, if not hundreds of thousands, perhaps millions of documents and artifacts from the government's investigation. It simply would have been impossible to develop capable strategic use of that information without applying the technology to it. What I learned from McVeigh is one must always first find the technology which will best reveal the evidence to the lawyers just as we had to choose the technology which would best reveal the evidence to the jury. The lawyers have to find in the technology those means which empower them to discover that which is most significant in the evidence.

Technology is the bridge over the river chaos. And by that I mean, in my experience, in McVeigh, in September of 1996 - which was about the time the government had organized and prepared every single exhibit they would be using in trial to the fourth decimal place. I mean, these guys were organized. I found myself in the position of having to design, implement, develop, and manage all the technology that would be applied by the defense both before trial and during trial. I had to double the size of my law office, create a new, essentially a law firm dedicated to a case in which about twenty nine lawyers and probably scores of paralegals and investigators were involved. All with differing layers of sophistication in things computing and technological, and find a common ground in which they could operate as one for that trial. Technology was the common denominator not in the sense that everybody knew anything about technology, but by building a network, a human network of processes and products, we were able to form a law firm. A single case law firm. It was the technology that was the medium. The experience of learning it together, developing it, using the resources daily, that was the thing which brought us together. In fact, the least of my problems was figuring out what hardware and software to use. The hardest part is finding the human processes that build organization and make you effective in the use of technology in trial. The technology enabled us to overcome the physical, emotional, intellectual trauma that was imposed upon us, and surely on the prosecution as well, by a case of this duration and intensity.

The best litigation support uses the simplest means to present information. Rather than get off in some complex set of proprietary products that nobody would know how to use, I said there was only one thing I could probably teach everybody in this case how to use in the time I've got, and that was to organize everything in this case around a Windows interface. I had to create a way that people from law clerks to senior attorneys could get to all the discovery in the case with three to five clicks. That was the only thing that I could be sure that they would all know how to do. And what we did, was to essentially present a way of accessing information that required nobody to know anything about what applications they were using. The menu would call each application with the document already loaded in it. And because of the network, we were able to update this system, really, hourly by having a network administrator distribute new desktop startup menu features to all the computers in the system. Simplicity is really the essence of success in this work.

I favor the notion of distributing all the resources that we have, databases and text bases into subtopics or sub-groupings -- Breaking it down into small pieces allowed people to vector in on the resources they really needed a lot more quickly than they would have to do if they had to go through some big database every time. Equally important is the knowledge of what resources are there. So we put a lot of emphasis into teaching people, using the network, using online instruction as to how to operate each component of our litigation support systems.

Because we were learning the evidence with the technology we had chosen, it was important that we bring that same technology to court. That is an essential continuity that a lot of lawyers forget. They think that there's the technology they use on their laptop, informally at the office, and there is that technology that they use in court when they have their litigation butlers bring their databases to them on red crushed velvet pillows - that somehow the two environments are different. In fact they're not different at all. The most authentic way that you can demonstrate your advocacy from a technology is to use the technology you are most familiar with. You don't have to get sophisticated; you really have to get simple. Being, just dog simple is the surest way you ensure that all of the resources you build into your litigation technology are actually used, as opposed to having your people intimidated by what they don't know and having them fail to maximize the potential of the investment. Because we are going to be using the same technology in court as we use in the office, we don't have to worry about what will the courtroom of the future be. The courtroom of the future should be the law office of the future. You should be able to do everything that you do in your law office, in the courtroom. That's what we achieved in the McVeigh case.

Here you see the layout of the courtroom. One of the problems we encountered, I think, is that some people believe that technology is architecture. It is part of the design of the courtroom, like furniture. That it is the court's responsibility to place the furniture and the technology there for lawyers who are appearing in that court to employ. Because technology is advocacy, I don't ask anybody else to speak for me. I don't ask the court to speak for me. I ought to speak in court through the technology just as I use my voice before the jury in argument. So if you are going to have lawyer-centered technology in the court instead of court-centered technology, the lawyers have to be encouraged and have to encourage the judge to allow them to participate in the planning process. Lawyers have to be in control of their own technology. No matter how good the court personnel are, it is inevitable that if the advocates themselves don't have control of the courtroom technology that there will be failure. And there was failure, sometimes the audio did not come on, we were sometimes handicapped, the case was a bit delayed because of technical problems that truly would not have occurred had the lawyers been in control of the technology. The explosion, one of the most evocative and powerful pieces of evidence I have ever experienced, came off less like a big bang, a big roar and more like a pop because; inadvertently, the court personnel had turned the level down too far. So this critical evidence, this emotional moment in the government's case was limited because they were not in complete control of the presentation cycle of their own evidence.

Let me show you a close-up. This is a close-up of our side. I was seated there, my associate Maria Ryan was seated to my side, the red dots indicate where the monitors were. We weren't able to use it as much as we would have wanted to because the other circumstances of trial, what I call the trial space, and that is who must sit next to whom, the internal politics of how a defense team and client are presented to the jury and court. Those things are controlling factors. You can't let the way the jury perceives the relationship between the attorneys and the defendant be dictated by where somebody installed a monitor. So, the physical space, which of course, remains the same for the court, is never the same as the trial space, which changes with each trial. So I think it's important that we think in terms of installing or placing technology in the context of the trial, in the trial space, which is unique to the case and therefore, installing hardware in fixed locations becomes a restraint, you see, rather than a benefit to counsel. As it so happened, ironically, of all of the lawyers in this case, the two lawyers seated in front of those second monitors were the least technologically capable. The virtue of the installation was that it made the technology discreet, but the consequence of its location was a limitation of how aggressively the counsel could use it.

This is a model of the defense side and the computer resources we had installed in the courtroom. This would have been my terminal, we had a server here, twin processor. This is Maria's computer, this is Sam's here, these are the computers at the other table. We wanted to create an office network.

In fact when you present technology in court, you present two movies, the visual, oral and print information that you present to the jury that we all see. The second movie is the one that only the lawyers see and that is what is shared and presented on these litigation monitors in front of the lawyers. Each computer, controlled from my terminal, could see anything that was on my computer. The value of that, is that I might be researching some 302's and find one that was critical to the particular testimony then going on. I would be able to flash that in front of the lead attorney, let's say, to draw his attention to these facts. In fact, on each desktop of each computer were essentially portfolios, of all the information that we had about each witness that was to testify that day. We could print documents from place to place. I used the laptop which was part of the network to transport large files to and from court each day. So that became sort of our mule between the main office and this courtroom.

We had live Internet access from the courtroom to the World Wide Web. We also were able to be in constant communication both with our office, and also with the witness room, which proved very useful to us. You have got to realize in this case it is easier to open the door to a 747 at 50,000 feet and jump out than it would be to get out of that courtroom. There were big burly guys with things in both ears that were not going to let you out. So you were locked in there for keeps, it was like somebody shut the door to Pharoah's tomb. Until the next break you weren't getting out. So the ability to communicate to our staff and to direct work, even work in the field via e-mail, was a critical and important part of what we were able to do because we were in there all day. In effect, the management team of the defense and of the government was locked in that courtroom eight hours a day. So we had to be available via our communications link to make decisions and manage operations while the trial was ongoing. That is essentially what I was doing. Following the evidence, researching points that were coming up, whether it would be in our own information system or in the Internet as well as communicating back and forth and communicating documents to the folks around the table.

You try a lawsuit in one place, but preparation in this modern age is global and by that I mean that you have to go outside of the traditional boundaries of what we have been taught in our legal education as what is relevant to an investigation of a case. The use of the Internet essentially I think is going to transform the way we conceptualize our cases. I was able to research names, or organizations, or products online that we would then use in cross-examining that next witness - pulling information off the Internet that was relevant to our cross-examination of the witness who had taken the stand before I logged on. It's important also to realize that the investigative dimension that is now part of the Internet. There will be other cases, there will be other tragic circumstances that come to courts, in which the entire nation is focused. You will find that the Internet is an extraordinary resource for investigation of leads, because people who have something to contribute, real or imagined, will come to the Internet and tell you their stories. In the McVeigh case we were scanning all of the web pages that dealt with anything relevant to the case on a daily basis -- all of the, essentially the chat groups, everything. We were watching everything, monitoring everything that the world was saying about our case to see what was out there, to see what, if anything, would afford us an advantage in court.

Trial advocacy is total communication. By that I mean it is no longer good enough for you to be a capable orator, one must be able to use audio, to use video, to use images in ways that are just as articulate and as creative as your best closing argument.

You must be a full bandwidth advocate capable of using any media to convey your message to a jury. It became important for the defense to demonstrate aspects of McVeigh's life and influences that were different than those that the government had emphasized and that the press had characterized before trial, so we presented a film about his personal history. I'd like to play you a part of that and see if it doesn't cut against the grain of what your perception of Timothy McVeigh is. (TAPE) What were we doing there? Trying to put context, trying to articulate through video, the humanity of an individual who had only been described in atrocity.

Well, today we believe what we see on television. Again in this phase of the case, the sentencing case, Dick Burr and Mandy Welch were trying to present the main influences which had impacted on McVeigh during his life.

VIDEO VOICE OVER: While his war veteran buddies were testifying, I edited down a video tape that he had in his possession, which described the magnitude of violence that was part of the Gulf war experience of the soldiers who fought there. While this was being played his buddies were talking about how this conveyed the experience of what they lived through during the war. The juxtaposition of his rural family upbringing and the intensity of modern conflict should be obvious.

Video is visceral. Sometimes there are things that need to be communicated about a defendant that overwhelm our lawyerly skills of oral advocacy. This might be one of them. This is the third influence on McVeigh that the sentencing lawyers wanted to convey to the jury.

If video is visceral, audio is radio. By that I mean that in the radio age our imaginations were integrated into our senses. As we heard narrative stories told to us through radios, we visualized what was occurring in the radio. In this instance, we had some recordings that had been made of a prominent government witness who was marvelously prepared, visually pleasing to the eye, but perhaps it was useful to the defense to convey, not through aggressive cross-examination, "you aren't who you say you are, are you Mr. Witness?" But rather through a contrast of a different demeanor and different vocal quality than that which the jury had witnessed in court. What you're seeing on this screen is the digital rendition of computer digital sound files used to play these recordings in court. (TAPE) That brief clip of the conversation conveyed a completely different sensibility about that witness than that witness conveyed to the jury in court, and it was not a function of aggressive cross-examination, but simply cross-examination by contrast.

One of the most critical things to remember is that while technology is a lawyer's aid in the preparation and presentation of evidence in trial, if you are to succeed with it, it must become the juror's tool. The juror must feel that the technology you've conveyed to them in court made them more able, to fully comprehend the significance of the evidence. If they take from your technology the sense that they benefitted from it and they learned the essence of the case you're presenting, then you have succeeded.

Thank You