Samuel C. Stretton ()
Technology is changing the face of jury trials.
Is there anything unethical about electronic closings?
In an electronic closing, the standard jury trial is flashed before the jurors exactly as the judge charges. All exhibits, particularly photos or videos, are displayed to the jury. The lawyer’s comments are written and published to the jury. The lawyer speaks them, but many times is looking at a computer when doing so.
The question raises the concern that many experienced trial lawyers and some judges have perhaps had: Where is the line to be drawn in giving a closing speech?
A closing speech by an experienced trial lawyer is a wonderful thing to watch. A lawyer stands in front of the jury without notes, talks to the jury and looks them directly in the eyes. A lawyer senses issues while talking to the jury and at times modifies the speech. Sometimes a lawyer may hold up a photograph or an exhibit to discuss it, but it is in essence a lawyer speaking to a jury, as an advocate, arguing in a compelling fashion the client’s version of events and evidence.
Now, with the use of computers in the courtroom, a person experienced with technology can make the closing argument a computer-based project, a miniature replaying of the trial. The lawyer’s words are sometimes very secondary to the photos, exhibits and written comments appearing on a computer screen that the jury is reading.
What is particularly disturbing is when the computer screen parrots the exact law that the judge is later going to charge. If the lawyer knows what the judge is going to charge and puts that on the screen, does that give the lawyer an unfair advantage because the jury is going to hear the exact same words a few minutes later from the judge and then receive the written charge in the jury room?
There are no ethical issues. But the real issue is the changing nature of the trial. Should there be a limitation on technology in opening and closing speeches? Are trials now going to essentially be a computer review where the lawyer has a secondary role, or are these closing speeches still going to mean something where a lawyer talks and advocates to a jury?
Because people are raised on television and computer screens, they seem to give more credence to what they see on the screen than what people tell them. But the problem is that these kind of electronic closings in essence retry in many ways the whole case again. Statements are shown, photos are shown, videos are shown, evidence is displayed and comments are made, particularly if the lawyer has ordered the notes of testimony on a daily basis. Closing is supposed to be a work of art and advocacy. It should not be another rehashing of the evidence at trial that has already been seen by the jurors and is now just being seen again in a computerized version.
Perhaps this is more effective and should be done by all lawyers in the future. Perhaps the old art of advocacy and great speaking is something that is going to be left to the distant past in favor of the modern approach.
That may well be the future, but if that is so, where does it leave trials? After a while, one could try a whole trial by a computer screen. A computer can be programmed with all the questions and evidence. There might not be the need for an attorney.
To an experienced trial lawyer, there is something offensive about taking technology and essentially rehashing the trial as opposed to an old-fashioned address to a jury, looking at them and advocating a viewpoint or cause. Should a trial be won because someone can put together a computer program that electronically retries the trial or should it be won due to what the jurors recall of what they saw and heard during the trial and lawyers arguing their respective viewpoints?
Further, if a lawyer now can put up the exact words a judge is going to charge, since judges usually give the charge in advance to the lawyers, is that fair or ethical? Is it right to have a judge’s statements incorporated into the lawyer’s closing to make the jury think the judge and the lawyer are working side by side?
Closing arguments are not a presentation at a corporate meeting. Trials are a human experience and should not become computerized, nor should the role of lawyers be diminished, at least in my opinion. After all, the next step would be to take the judge’s charge and just put it on the screen and the judge can read it from the screen or have a computerized voice read it.
What should future trials look like? Should they be a battle of technology and technical showmanship or should the human aspect still predominate?
Just because one can do something doesn’t mean it is the right thing to do. Technology can go to amazing limits, but that doesn’t necessarily resolve the fundamental question as to what a trial should be. In some ways, the use of modern technology during opening or closing speeches is rapidly changing the nature of a trial to be more of a technology game. In my mind, no matter how proficient one or both sides are in technology, that is not how a trial should be conducted. A person’s cause or criminal defense should not be ruled or decided by technology, but rather by serious advocacy. At least there ought to be some consideration in terms of what should be allowed in opening and closing speeches and even at times what should be allowed in terms of evidentiary presentations at trial. The human side of trials should predominate. That is what has made the jury system and trials in the United States such a precious and wonderful instrument of justice.
But now things are changing, and at least before these changes become permanent there ought to be some consideration or limitation as to what can be said and done. Maybe the role of lawyers and advocacy is something of the past. But the greatness of trials and the American judicial system has always relied on individuals and their experience, skills and wisdom. To diminish that role as is happening in courtrooms every day raises some serious questions as to the future of trials and opening and closing speeches. Whether there should be limitations in technology during a trial should be decided in the context of what future trials will look like.
Judges should be discreet when being paid for extrajudicial activities.
As a judicial officer, can I be paid a fee for publicly lecturing on the law?
Under the new Code of Judicial Conduct that has been adopted for appellate, common pleas and municipal court judges, the appropriate section is Rule 3.12, which is titled “Compensation for Extrajudicial Activities.” The rule is a little vague, but it does allow compensation for many types of extrajudicial activities.
In essence, the rule states a judge may accept reasonable compensation for extrajudicial activities permitted by the Code of Judicial Conduct or other law. But there is a limitation if the acceptance would appear to a reasonable person to undermine the judge’s independence, integrity or impartiality.
Judges are allowed, under Rule 3.7 of the new Code of Judicial Conduct, to participate in educational, religious, charitable, fraternal or civic organizations and activities. Under Rule 3.7(a), a judge can write, speak, lecture on various subjects, including nonlegal subjects.
Therefore, under Rule 3.12, a judge can accept reasonable compensation.
Whether a judge should is another issue. Obviously, if a judge is teaching part-time in a law school, then the judge should be paid a fair compensation. But what is fair? Many times, lawyers are hired as adjunct professors in a law school and paid a minimum fee for the course. The judge’s salary, if he or she is teaching in the same fashion, should be the same. Obviously, if a judge is teaching one course and getting paid much more than a lawyer, there might be a problem.
Under Comment 1 to Rule 3.12, the judge has to be mindful that his or her judicial duties have to take precedence over the other activities.
Also, a judge should be very careful about speaking at specialized bar association or partisan meetings. If a judge is invited to speak to insurance defense lawyers on a subject and being paid for that, he or she should be very careful if he or she is handling cases where insurance defense lawyers are appearing. That could raise questions as to the judge’s independence, integrity or impartiality. It is one thing to be speaking to bar associations. It is another to speak to lawyers or other people of a group that has a particular viewpoint.
The compensation has to be reasonable. Massive payments will raise questions.
Any money a judge receives for these types of activities has to be reported. Pursuant to Rule 3.15, a judge has to publicly report the amount of money or the value of compensation received for extrajudicial activities as permitted in Rule 3.12. For reimbursement of expenses and gifts, there are limits. Gifts under $250 in the aggregate don’t need to be reported, nor do expenses not exceeding $650. But there are no such limitations on compensation received for an extrajudicial activity. The reports are made through the Pennsylvania Supreme Court statement of financial interest.
The proper way for a judicial officer to look at taking on extrajudicial income is whether or not it will have any impact on their judicial duties and responsibilities. Another way of looking at it is also whether or not there would be a value to the group or to the lawyers to hear the judge’s lecture or speech. Many times that is most useful, particularly to members of the bar. The judge should not go into extrajudicial activities with the primary purpose of supplementing their income.
Judges should be paid more. On the other hand, in this day and age, most lawyers make nothing compared to the judicial salary. For a lawyer to make what a judge makes, plus cover the overhead of a judge, a lawyer would have to make somewhere in the range of $700,000 to $1 million to cover those same expenses.
It is good that judges participate in civic and community bar association activities and seminars. The Code of Judicial Conduct encourages that and should. If a judge can be compensated at a reasonable basis for that, then there is no problem. But there is a problem if the judge is looking to make money. Judges should be willing to accept the judicial salary as their primary source of income and not look to other means to greatly supplement that. That is the trade-off one gets. Further, every judge has to recognize that many times, if they are paid for extrajudicial activities, it is only because of their judicial position. Most lawyers speak many times and are rarely, if ever, paid. A judge should keep that in mind at all pertinent times when considering whether to accept compensation.
In conclusion, a judge can engage in extrajudicial activities that are permitted and can be compensated. But a wise judge will be very discreet and careful in doing so. The protection of the judicial office is always paramount if one has the privilege of being a judge.
Chester County lawyer Samuel C. Stretton has practiced in the area of legal and judicial ethics for more than 35 years. He welcomes questions and comments from readers. If you have a question, call Stretton directly at 610-696-4243 or write to him at 301 S. High St. P.O. Box 3231, West Chester, Pa. 19381.