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Your case is set for trial tomorrow in federal court. You've prepped your witnesses and submitted your trial brief, but you're not as confident about the rules of evidence as you'd like to be. After all, it's been quite a while since you took a case all the way to trial. You've set aside these few hours for final preparations.
Imagine if you could push a button on your desk and see the walnut-paneled walls of a courtroom rise around you. As you make your selections from a long list of experts, Clarence Darrow takes a seat on your right, Atticus Finch on your left. A copy of the evidence code and a leading evidence treatise are within reach.
Before you your adversary, a seasoned trial lawyer, has your client on the stand and is grilling her unmercifully. That last question seemed somehow improper, you think, but you're not sure why, and as you're pondering it your client is already halfway through her answer. Finally, midway through counsel's next question it comes to you, and you jump to your feet and stammer unconfidently, "I object, Your Honor. That calls for hearsay." Immediately the judge booms out, "That's not hearsay, Counsel. Overruled!"
Unruffled, you consult your esteemed co-counsel and skim a few pages of the treatise. Then you quietly press the rewind button and play the scenario over again. This time your argumentative objection is sustained, and you can see your client relax a little as the judge admonishes your adversary to "stick to the facts, Counsel!" You make a mental note to watch for this line of questioning in tomorrow's real trial.
* David M. Arfin is president and David J. Simon is director of technology of CLE Group in Menlo Park, California. CLE Group develops and distributes "The Interactive Courtroom," interactive multimedia software used by law firms, law schools, and continuing legal education organizations, and created "cle.Net," a World Wide Web site dedicated to delivering audio-based, legal education and training online.
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Within a few hours, you have completed real-time simulations of direct and cross-examination, and your confidence level for the next day's proceedings is noticeably higher. You push the button on your desk again, and the "virtual courtroom" fades away as quickly as it had appeared.
***
There is a tremendous gap between this "virtual" ideal and the way most lawyers hone their trial skills today. The tradition of being mentored by a senior partner has suffered as the practice of law has undergone dramatic changes over the past decade. Time pressures and client-service demands have combined to reduce many firms' in-house training efforts. Outside training, including NITA-style seminars and "talking head" lectures, are often too expensive and inconvenient for the average practitioner. In fact, most lawyers learn principally by "trial and error," with the accompanying risk of personal and professional embarrassment (if not also liability).
Fortunately, advances in computer and communications technologies are making possible many aspects of the "virtual courtroom" experience described above. Just as pilots have flight simulators, doctors have electronic cadavers and baseball players have batting practice, lawyers now have risk-free opportunities to develop and hone their courtroom skills.
Recent Developments in Interactive Training
In the last five years, numerous law schools and state and local bar associations have begun using interactive video-i.e., video controlled by a computer programmed to respond according to the user's input-for skills-training. One of the most widely used of these programs, CLE Group's laserdisc-based "The Interactive Courtroom"
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series, simulates a civil jury trial and casts the user in the role of plaintiff's counsel, defense counsel or the trial judge.1
As the trial proceeds in video, the user registers his or her objection to questions or answers via the computer keyboard. If the user does not object, the direct or crossexamination continues, and the witness paints himself into a number of corners. On the other hand, proper objections may trigger a video response from opposing counsel or a video ruling by the judge that sends the proceedings off in another direction entirely. By using a computer-controlled video source, this interactivity occurs in realtime-i.e., without the delays of forwarding or rewinding a videotape to many different locations.
These interactive programs are extremely popular. For example, a recent course put on by the State Bar of Texas showed that 98% of the attendees said they would attend another interactive video-based course. Similar results have occurred in programs sponsored by the Association of the City Bar of New York, and the State Bars of Arizona, Ohio and Alaska. In addition, the programs are in over one-third of the nation's law schools. The ABA's Association for Continuing Legal Education awarded the programs its "Best Program" and "Best Program Idea" honors (Attachment 3). In the past two years alone, thousands of attorneys, judges and law students nationwide have gained access to this powerful training tool.
The next step in the evolution of interactive legal training was the adaptation of some of these laserdisc programs to CD-ROM format last year. Technical limitations on the size of the video deliverable from a CD-ROM proved to be a substantive boon, because it meant that a much greater amount of video could be included to enhance user interaction. It also made the programs available to a much broader audience,
1 The original software and content for "The Interactive Courtroom" were created at the Stanford Law School Interactive Video Project in conjunction with California's Continuing Education of the Bar. Another interactive, laserdisc-based series is The Harvard Law School Interactive Video Library (Attachments 1,2).
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given the ubiquity of CD-ROM drives as compared with
laserdisc players. Now anyone with a multimedia-capable computer
can have the "virtual courtroom" experience at his or
her desktop (Attachment 4).
A Desktop Flight Simulator for Lawyers
In addition to carrying forward the features and benefits of the laserdisc programs, "The Interactive Courtroom" on CD-ROM includes several new enhancements that bring it closer to the virtual ideal described above. The most noticeable of these is a graphical user interface, which places the user behind counsel table, face-to-face with video windows of the trial judge and the witness on the stand. In the center of counsel table is a desk blotter for registering objections, with navigational buttons, a book of '-'Teacher's Notes," and even a water pitcher (that doubles as a pause button) also within reach. While the selection of expert mentors does not include the likes of Atticus Finch or Clarence Darrow, the user does have point-and-click access to context-sensitive tactical advice from no less than Howard Weitzman, chief legal officer of MCA, Barbara Caulfield, former U.S. District Judge now with Latham & Watkins, Terence MacCarthy, of the Federal Defender's Office in Chicago, and Tim Hallahan, creator of the laserdisc version of the programs. Or users may click on the "Teacher's Notes" book for a discussion and analysis of the pending question and answer by Stephen T. Maher, Esq., aka "The Practical Professor."
With each ruling comes an explanation and a citation
to the pertinent Federal Rule of Evidence or the statute of the
state the user selects. The full text of the rule or statute can
be viewed by simply clicking on the citation. The program offers
periodic reviews of effective and ineffective trial techniques;
it even shows the user what evidence was admitted due to his or
her failure to make a timely or proper objection. At the end of
each program, the user's performance is reviewed briefly by both
the judge and the user's client, and a performance summary is
offered for printing.
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Benefits of Interactive Training
The benefits of interactive training have been touted in numerous studies by instructors and users alike. These studies consistently cite the following benefits of interactive technologies: reduced learning time, instructional consistency, mastery of subject, increased retention, increased motivation, increased access, reduced cost, and enjoyment by users (Attachment 5).
These benefits manifest themselves in the legal field in a variety of ways. The most frequently cited benefit is the program's facilitation of a "learning by doing" process through its interactive nature. Memorizing the rules of evidence alone, watching others try cases, or sitting through a "talking head" seminar does not provide a learning environment that allows for the honing of one's own instincts. Rather, effective lawyering skills are learned by persistence, feedback and repetition.
Interactive video-based training simulates many of the pressures of practicing law, while also allowing users to learn by receiving immediate feedback on the wisdom of their actions. The fact that this learning occurs in a risk-free environment encourages users to explore on their own; it empowers them to seek knowledge, rather than merely receive instruction.
The availability of high-quality interactive programs will lead rapidly to the democratization of legal-skills training. Practitioners in remote areas or in small-sized firms will have access to the same quality of skills-training used by attorneys in large, metropolitan firms and at the same cost.
When this new learning format is used appropriately and in combination with traditional interpersonal mentoring, the individual attorneys, firms and clients all benefit from it. The real-time trial simulations help newer lawyers who are often not well-prepared in law school for the realities of practice, as well as veteran law,vers who do not have many opportunities to try cases. This technology can also benefit firms with more than one office by providing common and consistent training to all
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branches, no matter how small or remote. Perhaps most importantly, attorneys can brush up on their skills and make their mistakes in a "virtual" world without detriment to their clients. The economic advantages of computer-based training also make these programs a viable training option for law students and paralegals, as well.
A Look to the Future
The number of law firms using interactive training is growing. This trend is driven by advances in technology, an increase in the number of states adopting Continuing Legal Education requirements, and the market's need to reduce cost and raise the quality of skills-training programs.
The media formats or "platforms" on which information is delivered continue to evolve quickly. There is tremendous momentum pushing information-providers toward the Internet, and the first few legal-training programs have begun to appear on the World Wide Web. For example, Counsel Connect provides on-line, text-based discussion groups in which dozens and sometimes hundreds of lawyers participate. And CLE Group offers several MCLE-accredited programs via "audio-on-demand," meaning that users can hear and interact with the program in real time.
The next foreseeable advance in this technology is
"video-on-demand" via both the Web and corporate intranets.
When bandwidth increases and compression technology improves sufficiently,
as they both inevitably will, any content deliverable via CD-ROM
will be deliverable via the Internet, where developing, upgrading,
maintaining and distributing materials are much easier and cheaper.
As that time approaches, the focus will be able to shift from
simply how the information can be delivered to how effectively
it can be presented.
Skills-training programs can then be totally content-driven, rather
than being constrained by the limitations of existing technology.
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The Internet also provides an opportunity for interactive programs to expand beyond skills-training to take on substantive practice areas and other aspects of the law office. Future offerings could include anything from preparing a client for an upcoming deposition on a landlord-tenant dispute, to tips from five leading experts on mediation techniques in environmental cases, to how to market one's legal services on the Internet.
Eventually, there will be a huge database of materials
developed by top experts on a broad range of topics accessible
with a click on the mouse, if not a spoken word. Lawyers will
have "intelligent agents" comb through legal and other
databases to gather information on the particular case they are
about to try and the trial judge to whom the case is assigned.
The data thus gathered might be factored into a simulation closely
approximating the real-life trial. (If the attorney's adversary
is also this prepared, they may want to consider a "virtual
settlement.") Borrowing an operations phrase from the manufacturing
industry, we'll see "just-in-time" (JIT) training for
lawyers.2
Reality Check: Legal Research and Virtual Libraries
As a reality check, it may be helpful to consider how advances in personal computing and communications technologies have changed legal research. Rather than having to travel to a law library and hope to find the appropriate resources, attorneys can now do most of their research at their desktops by using on-line services and CD-ROM collections of cases, statutes and other materials. The "virtual law library" is huge and growing quickly.
But we do not-not yet, at least-live in a paper-less or faceless society where books are extinct and the librarian's role in assisting legal research is trivial. Likewise in legal skills-training, there is probably no substitute for "high-touch" training in which lawyers personally show and teach their colleagues how to improve their skills, for
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those who are fortunate enough to have access to
it. For those less fortunate (and as a complement to the mentoring
process), however, desktop legal training can boost lawyer confidence
and competence, paving the way for both greater professional satisfaction
and more effective client service.
Conclusion
Technological advancements in multimedia computing have come at a fortuitous time for those concerned with lawyer training. Just when the economics of law practice and a growing need to improve skills-training presented a two-pronged challenge to the legal industry, interactive multimedia provides lawyers with an engaging, effective and efficient tool to meet this challenge head on.
Lao-Tse, a 5th-century B C. philosopher, said, "If
you tell me, I will listen. If you show me, I will see. But if
you let me experience, I will learn." Although Lao-Tse did
not intend to address the reform of contemporary legal education,
his insight confirms what every successful lawyer knows: learning-by-doing
is the best way to develop and hone legal skills. Interactive
multimedia represents a promising development in bridging the
legal skills-training gap.