There are some footnotes and a 135 word note at the end. Please don’t include the note in the total word count.

Video, Evidence & the Practice of Law (1)

The New Record (2)

Video evidence has become commonplace in the courtroom, especially in criminal cases. This development in law clearly reflects technological advancement. However, video footage has fewer qualitative differences from traditional forms of evidence beyond the actual presentation of information. Today, much documentary evidence at one time existed as digital evidence. Thus, the use of video in court makes a simple but interesting statement about ongoing developments in the evidentiary record and litigation practice: the more things change, the more they remain the same.

Dialoguing with a Mentor (3)

Chirp Chirp. It was his Blackberry. My voice trailed off.

“Keep talking, sweetie, I’m listening.” I was doubtful but picked up my line of questioning:

“Did you ever imagine that one day you would be holding a computer in your hand?”

“No sweetheart -- I never imagined we would go into space, or have a black president, or watch movies in the middle of a trial. He said all this without pulling his eyes away from the sleek black device in his hand.

Finally he looked up at me with an apologetic smile. “Sorry, no more interruptions.”

“Okay, so you really didn’t anticipate cameras in the —” Buzzzzz. His phone danced on the table, my lips stopped moving. He cut his eyes to the machine and quickly looked back at me. His gaze was intense and open, the kind to assure me that I had his undivided attention.

“What’s your question?”

“I’m just surprised you didn’t anticipate the use of video evidence. What’s your opinion?”

“Why do you think the police department installed cameras in police cruisers? Footage is just another perspective to evaluate events.” He was a criminal defense attorney and litigated a number of successful Fourth Amendment cases.

“Are you telling me the use of video evidence doesn’t change your trial strategy at all? When you learn that the prosecutor will share damaging footage from a correctional facility or a police cruiser, you don’t get a little intimidated when it looks bad for your client?”

“That’s like asking me if I’m afraid of a photograph or an x-ray that is unfavorable for my client. It’s all the same to me.”

“But do you think videotapes distort evidence or clarify it?”

“Depends on who you ask – some people will find portions prejudicial others will find portions illuminating. Videotapes add to the record and most judges will not view them as conclusive. It’s the jurors that you have to worry about.”

“Okay, so – ”

Chirp Chirp. He instinctively looked down at his Blackberry despite his promise. A frown materialized on his face.

“I’m really sorry, Chris, but I have to run. We’ll do this again the next time I’m in town.” He was talking about lunch at Del Friscos in Times Square.

“But I have one more question.”

“Shoot,” he said helping me into my tan trench coat before turning towards the door.

“What does being a successful litigator require?” I had to shout because with his long legs he was already several feet ahead of me. I jogged to catch up.

“It’s being lucky enough to win all of the cases you should win and most of the cases you should lose.”

When we made it to the curb I raised a brow in puzzlement and he winked. Before I had time to pose a follow-up question he was replacing a passenger who had alighted from a taxi advertising a gentleman’s club on the roof.

Chirp Chirp. It was my Blackberry. "Be good!"

Enter Jerome Frank and the Legal Realist School of Thought

Before taking Law and Contemporary Society I would have shrugged off my mentor as cynical; of course video usage marked the most significant development in the history of evidence and consequently the practice of law. Judges and jurors would attribute undue weight to video evidence, making it determinative of trial outcomes. However, after spending some time with Jerome Frank and his contemporaries, I had a different opinion. I knew that when my mentor mentioned cases that should be won and lost he was referring to the notion that the outcome of cases should be predictable – based on precedent. The luck part was a stroke of legal realism that I would have missed. In reality, the only thing predictable about legal decisions is that people determine outcomes, not precedent or a particular type of evidence. Some view this subjectivity to mean that biased interpretations of facts in your favor merely amounts to good fortune. Any decent litigator must have basic legal skills. But the best ones also harbor a healthy dose of rule and fact skepticism driving the real work of lawyering, studying the players in any case. This is why litigators spend so much time learning about judges and selecting juries.

Conclusion

I am doubtful that we will ever develop a technology that reliably eliminates subjectivity in interpreting evidence. If I am correct, the types of evidence that make it into the record today, tomorrow, or a century from now will have little impact on the primacy of understanding psychology to practice good law.

Grade.

---

1.

This is a new essay inspired by Lawyerland. While I understand that the point of the exercise is to edit a previous writing, having misunderstood the summary judgment standard, I have nothing to say about Scott v. Harris or summary judgment. My interest in developments in evidence produced this writing.

2.

I am defining the record as the body of evidence judges evaluate to make decisions. Over the last century the record has evolved from including primarily transcripts and oral testimony to photographs, to demonstrative evidence (x-rays, day-in-the-life videos, etc.) to trace evidence (fingerprints, DNA, etc.) and now video footage. This is not a chronology. Many of these developments happened concurrently.

3.

This dialogue captures a true interview, however some of the language may be slightly different since I did not write this down until after the discussion.

---

This essay feels bare to me. I’ve tried to revise it many times but I am not sure where the deficiency lies. My goal was to produce a writing similar to Lawyerland, however, I believe I have missed the mark. Lawyerland has layers producing a literature that is at once simple and complex, humorous and sobering. This writing seems to be one-dimensional. I’ve had other people read this and some like it. Others say the problem is trying to copy another author’s style without adding originality. With that being said, although I requested a grade, I look forward to reading your comments to see if they illuminate a way forward with respect to improving my style.