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    May 19th, 2010

    ♬ This boy has got it made
    Media exposure
    It will make him all the rage
    But he’s not playing
    He’s not playing
    He’s just having
    Adventures in modern recording…♬

    Music and lyrics by: Simon Darlow, Trevor Horn, Bruce Woolley, recorded by The Buggles.

    This column starts a new category theme in this blog: “Tips”. This tip comes from British Columbia lawyer Richard Fowler.

    On Slaw.ca there have been posts on recording in the courts. Most recently, Mr. Justice Richard Granger posted on Technology and Court Reporting. Mr. Justice Granger stated:

    Unfortunately, court reporting in Ontario has not kept pace with the emerging technology which is available in the market place today and which could greatly assist judges in having a command of the vive voce testimony during the trial and when preparing their reasons for judgment.

    As Mr. Granger notes in his post, such real-time reporting is not inexpensive. For most trials, but particularly for criminal ones with legal aid and court budgets under so much pressure, the cost of such a system is simply prohibitive for counsel to bring into the court. Accordingly, there must be a better way!

    The Globe and Mail in an article entitled “No Laptops Please: We’re Lawyers” reported on lawyers who were attempting to bring CDs instead of boxes of evidence and laptops to court:

    All of those boxes would have made a much more unwieldy prop. But given the slow pace of technological change in Canadian courtrooms, perhaps cramming them in for effect would have been more appropriate.

    Earlier this month, a Whitby, Ontario, justice of the peace told criminal defence lawyer Sean Robichaud to put away his laptop, after the Crown objected to it as a potential recording device. He was forced to ask for an adjournment since his entire defence was stored on his hard drive.

    Back at the law society, Mr. Stern repeatedly consulted a laptop during the proceedings. But a newspaper reporter was asked to put hers away, because it can interfere with the hearing room’s recording equipment and computer system. (The court reporter said that it wasn’t a problem that day. But rules are rules.) Don’t even think of getting out your BlackBerry.

    So it was refreshing when Richard Fowler told me of his success in bringing his own recording equipment to court. In his case it is the Livescribe PULSE recording pen (www.livescribe.com). In Richards words:

    Essentially I use the pen to make notes of a witnesses testimony and at the same time it records the oral testimony. I can then download to my laptop a copy of my handwritten notes that has the audio synchronized. I can click on any part of the handwritten notes and listen to the audio. This allows me to make sure that my notes, in crucial portions are accurate.

    The judge was Madam Justice Arnold-Bailey of the Supreme Court of British Columbia, sitting in New Westminster, BC. The case is R. v. Butorac. I gave an undertaking to the court that I would not use the audio for any other purpose than for preparation and presentation in this trial. I based my request upon the practice directive which gives the media a right to record for the purposes of checking the accuracy of their stories.

    Lightscribe PULSE pen

    Lightscribe PULSE pen

    Perhaps others can follow Richard’s trail-blazing efforts to allow lawyers to make real-time recordings of court proceedings that are more accurate than scribbled notes. I would like to thank Richard for passing along this Tip on his adventures in modern recording and I look forward to posting (and hopefully – receiving) further Tips from dedicated readers!

    Hat tip to Nevin Fishman of Bernard & Partners for forwarding along the Globe and Mail article!

    This entry was posted on Wednesday, May 19th, 2010 at 10:58 am and is filed under Make it Work!, Technology, Tips, Trends. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.

    2 Responses to “Pen Envy?”
    1. John Olah Says:

      Dave,

      I have been trying cases for 35 years now. I still have not come up with a solution as yet as to how to take notes during a witness’s examination and then cross-examine once witness finishes. I still do it the old way, write on trial paper and the make my comments in the margin. This works reasonably well, except in the heat of the moment, at times I cannot read my writing, or I miss some of the points.

      Using a word process does not work, as when I tab over the next column, it does not line with the evidence. The other problem is you have to keep scrolling down to spot your next issue while you are standing in front of the witness.

      The light pen will not work, either. You cannot listen to the audio component of the witness’ testimony in the middle of the trial. I think the solution might be a tablet, such as the Lenovo X61 coupled with a small ink jet printer. This would allow the trial lawyer to take down the evidence in the old fashioned way, or type in the evidence into the tablet and higlight the areas you want to examine on. Then you make your notes in the margin and then print it off your notes. Presto, you have your cross-examination notes!

      Does any one know of a software solution that would allow a trial lawyer to take down the evidence and annotate it on the fly?

    2. Robin Nodland Says:

      “I still have not come up with a solution as yet as to how to take notes during a witness’s examination and then cross-examine once witness finishes. I still do it the old way, write on trial paper and the make my comments in the margin. This works reasonably well, except in the heat of the moment, at times I cannot read my writing, or I miss some of the points.”

      Using a live court reporter and realtime reporting, you can wirelessly receive the rough-draft transcript *while it is being created, word by word,* on your laptop and make notes, mark testimony, make issue codes, and then search back for your cross-examination. Realtime-viewing programs vary, but there is a very good FREE program available here: http://www.eclipsecat.com/?q=node/2167

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