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JILT 1999 (3) - William Boyd






What is Video Conferencing?


A Potpourri of Applications


A Virtual Classroom


A Transnational Simulation Exercise


Examination of Expert Witnesses


A Virtual Bankruptcy Court Proceeding


Virtual Guest Lecturers


Some Lessons Learned and Thoughts about the Future



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But What is it Good For?
Using Interactive Video in Legal Education and Law Practice

Professor William E. Boyd
James E. Rogers College of Law
University of Arizona


New technology often is greeted with skepticism. Interactive compressed digital video, or what is more commonly known as video conferencing, is no exception. My purpose here is to dispel the doubts and explain how and why this exciting new technology could be one of those changes that changes everything about how we go about doing legal education and law practice. Video conferencing probably has most often been associated with distance (or distributed) education and has been touted as a way to advance that enterprise beyond the 'talking head' or correspondence course applications with which it traditionally has been identified. The introduction of real time interactivity clearly improves the learning experiences possible across geographically (and temporally) separated classrooms, but we have only just begun to scratch the surface with regard to the multitude of ways that video conferencing may be employed to enrich legal education. An important conference devoted to the broader subject of distributed learning in legal education was held in June of 1999 in Chicago, Illinois.

Concurrently, legal professionals outside education are finding that the technology can effectively reduce the costs of engaging in many of the activities associated with law practice. Practitioners have shown particular interest in the use of video conferencing to bring into a proceeding the testimony of an expert who would be very expensive to have physically present. Courts are exploring video conferencing to reduce the costs and inconvenience of travel to judges as well as attorneys and litigants.

Keywords: Legal education, law practice, video conferencing, virtual classroom, dispute resolution.

This is a Refereed Article published on 29 October 1999.

Citation: Boyd W, 'But What is it Good For? Using Interactive Video in Legal Education and Law Practice', 1999 (3) The Journal of Information, Law and Technology (JILT). <>. New citation as at 1/1/04: <>

1. Introduction

Why such a title? New technology often is greeted with skepticism.[2] Interactive compressed digital video, or what is more commonly known as video conferencing, is no exception. My purpose here is to dispel the doubts and explain how and why this exciting new technology could be one of those changes that changes everything about how we go about doing legal education and law practice. Video conferencing probably has most often been associated with distance (or distributed) education and has been touted as a way to advance that enterprise beyond the 'talking head' or correspondence course applications with which it traditionally has been identified.[3] The introduction of real time interactivity clearly improves the learning experiences possible across geographically (and temporally) separated classrooms, but we have only just begun to scratch the surface with regard to the multitude of ways that video conferencing may be employed to enrich legal education. An important conference devoted to the broader subject of distributed learning in legal education was held in June of 1999 in Chicago, Illinois.[4]

Concurrently, legal professionals outside education are finding that the technology can effectively reduce the costs of engaging in many of the activities associated with law practice.[5] Practitioners have shown particular interest in the use of video conferencing to bring into a proceeding the testimony of an expert who would be very expensive to have physically present.[6] Courts are exploring video conferencing to reduce the costs and inconvenience of travel to judges as well as attorneys and litigants.[7]

In the Spring of 1997, a video conferencing facility was opened at the University of Arizona College of Law (UA), in Tucson, Arizona. Here I describe how I have been using that facility and explore some of the questions raised and answered along the way with a view to suggesting how video conferencing can enrich learning opportunities and facilitate efficient and less costly law practice activity. I first used the technology to teach a debtor-creditor law course jointly with Arizona State University Law School (ASU) in Tempe, Arizona. Subsequently, I developed a simulation involving a transnational business deal that went awry and in which students at each of the three different institutions were assigned the roles of representing one of each of three parties in the simulation. Later I taught a class the focus of which was an exercise in which students were required to cross examine a forensics expert using interactive video and then prepare papers evaluating the effectiveness of the technology so used. More recently, I staged a bankruptcy court proceeding for the Arizona State Bar Convention in Tucson, Arizona. This effort also involved a three-way connection with the judge at the UA Law School, one attorney at the site of the convention and opposing counsel in Phoenix, Arizona. This past spring I brought 'virtual' guest lecturers from various campuses across the United States to my Cyberlaw class.

To facilitate a careful assessment of the various uses, and to better demonstrate the technology to others, many of the video conferencing sessions were videotaped. Images from the tapes are interspersed throughout this article[8] and, more ambitiously, digitized clips from the tapes can be run as one proceeds through the article. These images and clips should assist a reader to better understand what the technology can and cannot do.

The taping that occurs in conjunction with a video conferencing session involves reducing the session to a fixed medium and can pose interesting questions of who owns the content of the tapes for purposes of publication, distribution or display under copyright law.[9] By contrast, merely conducting a video conferencing session, given the transient nature of the communication, would seem not to involve publication for intellectual property purposes (although there certainly could be 'publication' that triggers the risk of defamation or invasion of privacy or other such liability). However, insofar as pre-existing works are performed or displayed during a video conferencing session there may well be intrusions on copyrighted materials that cannot be dismissed simply as a matter of fair use.[10] Moreover, as will also be seen in following discussion, effective use of video conferencing requires that the medium be heavily supplemented by conventional publication and by various asynchronous forms of electronic publication. These other forms of communication, such as electronic mail, listservs and web pages can pose copyright infringement and other types of liability as well.[11]

Those of us who have been exploring the applications of advanced technology in legal education and law practice are acutely aware of the need to avoid using technology simply because it is there.[12] The admonition that we must never lose sight of the pedagogical or other goals that underlay our efforts as educators and legal professionals clearly applies to video conferencing. The risk of becoming enthralled with a new technology at the expense of basic objectives is reflected in the temporary distance learning guidelines promulgated by the American Bar Foundation and the American Association of Law Schools accreditation groups and which seek both to encourage experimentation and counsel caution.[13] It also is captured in the frequently expressed insistence that technology cannot be simply an expensive 'add on' and must instead create new value by improving upon and enriching conventional methods.[14]

2. What is Video Conferencing (What are we talking about)?

Simply stated, video conferencing is real time, ideally fully interactive, face-to-face communication that permits physically separated persons to meet 'virtually' as if they are in the same physical space. Such virtual meetings can be achieved using a range of video conferencing technology. The UA law school facility is equipped with ISDN-based Picture Tel equipment.[15] At the time of the installation this was the most affordable option that achieved the level of image and audio quality needed to do the kinds of things I had in mind to do.[16] Alternatives to ISDN connectivity are discussed below.

The video conferencing facility at the UA College of Law is located in a classroom (Room 201) that is used for purposes other than video conferencing. The classroom seats thirty or so students. It is one of three rooms that are fully wired with power and ethernet connectivity to every workspace. The equipment consists of a Picture Tel Concorde 4500[17] codec[18] (and multiplexer[19]), and three monitors (two 32 inch and one 27 inch) physically located to allow convenient viewing of the transmission from the remote site or sites. The larger monitors sit on carts in the front two corners of the room. The other is hung from the ceiling above the codec for viewing by the instructor. There are two preview monitors that display what is being transmitted to the remote locations. One is a small (9") and is placed on the table top near the podium for the instructor's use. The other is larger (21") and sits on top of the codec where almost everyone in the room may view it.

There is an Elmo document camera that can be used to send images of printed materials or physical objects. This device typically is placed on the table to the instructor's left. Three ISDN lines support 384 KBS transmissions, the speed needed to achieve the minimally acceptable level of video and audio quality for engaging in most law-related activity. There is a switch box that allows the use of a university T1 line as an alternative to ISDN connectivity. Two sensitive microphones pick up sound throughout the room. The mikes may be placed anywhere the cord reaches and may be daisy-chained.

The images that follow offer two views of the facility.

Image 1

Figure 1
Image 2

Figure 2

Figure 1 shows the two corner monitors, the one hanging from the ceiling and the small preview monitor and the microphones. Figure 2 shows the codec, overhead monitor and microphones and the larger preview monitor. In Figures 1 and 2, the mikes are sitting on small tables inside the horseshoe configuration of tables. To avoid the need for production support personnel we opted to go with one video camera that can be set to track whoever is speaking or be manually operated and also can be preset to view particular parts of the room with the push of a button. The camera is remotely controlled using an infrared transmitter that allows the operator to position the camera and to switch to auxiliary devices such as the document camera and a VCR. The remote control device also can be used to mute the audio on the near end, display a picture-in-picture (PIP) of what is being transmitted and, with the cooperation of the far end facility, even position the camera at the far end. There is a projection screen that is electronically controlled and we can project the codec image on the screen rather than on the monitors if we so choose (and also show computerized presentations and videotapes).

To take a 'tour' of Room 201, click here [3,963KB].

Two problems with the facility as it is designed and configured are that the lighting cannot be controlled as well as it should be and the tables are fixed rather than functionally modular (as they should be to accommodate different types of videoconference uses). On the other hand, the tables are situated so as to allow students to face each other. In many facilities, including those at two of the other sites involved in the collaborative ventures described below, the tables are in rows and students are looking at the backs of each other's heads (except as they may be able to view one another on the preview monitors).

As was noted earlier and will be explained further below, videotaping the conferencing sessions themselves is desirable. It is possible to tape using the VCR attached to the codec. But, practically speaking, it is possible to configure the VCR attached to the codec to videotape only one end, either the remote or the local site, at a time. To achieve the best coverage, it is desirable for each site to tape a remote signal and then share copies of the tapes so that each site has videotape of the other site or sites. For completeness, I had someone videotape the UA site independently of the VCR attached to the codec. This tape captured what was happening at my site, including the action on the monitors displaying the local and remote sites.

3. A Potpourri of Applications

My uses of video conferencing technology have been driven by a desire to 'check out' its potential for changing the way we do legal education and law practice across the board rather than a need to employ the technology so as to fully exploit it in a particular setting.

3.1 A Virtual Classroom

My first major excursion into the video conferencing world was to teach a course on debtor-creditor law jointly with Arizona State University Law School (ASU). This subject covers often complicated material ranging from basic non-judicial to court-assisted collection remedies to the impact of community property law on debtor-creditor relations. The UA and ASU classes met virtually for two and one-half hours four days a week.[20] The UA class met in our video-equipped classroom. The ASU students met in a campus video facility outside the ASU law building. On the ASU end, the campus video services department managed the technology side of the sessions. I did both the teaching and the video operation (camera movement, etc.) on the UA end, which is a testament more to the manageability of the technology than it is to my production acumen.

The course was taught as a conventional U.S. law class, meaning the emphasis was on interaction as opposed to lecture. The ASU faculty person, Professor Dale Furnish, was scheduled to teach this course (as I had just taught a similar course in the spring semester) so he took the lead with regard to basic course materials, assignments and class discussion. However, I participated often. Professor Furnish was able to see and speak with his and my students, and they with him. Likewise, I could interact with my students and the ASU students. As important, Professor Furnish and I engaged in a good bit of dialogue that reflected our differing views about specific topics. Often I would note key discussion points on a whiteboard in the UA classroom that was visible to students at both ends. As noted earlier, video conferencing involving complex learning and practice activity that continues over an extended period of time works best if it is supplemented by other forms of communication, including especially asynchronous computer-based communication. To this end, I created a class listserv on which I posted a summary of each topic as it was completed and which served as a forum for asynchronous discussion outside the classroom.

The images that follow are stills taken from the videotapes made of the class meetings.

Image 3

ASU Classroom
Image 4

Room 201
Image 5

Yours truly

To observe a snippet of the interaction in the virtual classroom sessions, click here [15,607KB].

Presently, bringing together students from different institutions into the same class is likely to present cross registration and related administrative difficulties. To avoid having to deal with these hassles, the UA students enrolled at the UA and the ASU students at ASU. It also is the case that students at one or the other school might perceive the students at the other as having an advantage because of physical and temporal proximity and hence greater access to the faculty person responsible for grading. In response to this problem, Professor Furnish and I gave essentially the same final examination, but graded the examinations according to the grading practices in place at our own schools. Each of us assigned grades to our own students. Beyond this, we would share online important offline discussions that we had with our own students. The videotapes of the class sessions were available to students on both ends who, for whatever reason, were forced to miss a class or part of a class. The intensive meeting schedule meant that missing a class was more problematic than would be the case with a regular law school offering. We did stress to the students that the availability of the tapes was not an excuse to miss class.

Both Professor Furnish and I judged the experiment a success. Using examination performance as a measure, the students as a group mastered the course material as well as they do in a conventional course. The students relatively quickly became reasonably comfortable with the video conferencing environment and interacted with me and Professor Furnish and other students as if they were in real space rather than communicating with monitor images. What problems there were could be attributed more readily to the fact that the classes were too frequent and too long and the amount of material too great for the time available than to the technology. In retrospect, spending some time explaining video conferencing, why it was being used, that there is a period of adjustment and that the potential longer term benefits are substantial, would have been time well spent. Of course, explaining to our students what we are doing and why we are doing it is good advice for legal educators generally and is not unique to using technology.

There were no technology glitches of consequence. The fact that we were using a partial T1 connection[21] rather than ISDN lines (which can be less reliable) probably served to keep the sessions running smoothly. It also helped keep costs down.

In my view an effective distance learning experience does not require that every class meet in real time.[22] Interaction need not be entirely in real time to be effective. Indeed, there are significant advantages to asynchronous communications that include the opportunity to pose more thoughtful questions and offer more complete answers than are possible in a real time setting. The challenge is to create the proper mix of real time video and asynchronous communications. I urge that a select number of video sessions, heavily supplemented with the use of e-mail, listservs, web pages and other asynchronous communications, is the best model.[23]

The UA/ASU course was aimed at evaluating the use of video conferencing technology to allow the UA to offer courses not offered at ASU and vice versa, with only one professor at the originating school. Cross-registration, and other such problems, led us to employ the two-professor arrangement. Where cost savings are not the controlling consideration, having two faculty members involved can greatly enrich the learning experience for the students (and the faculty themselves).[24] The advantage is that each professor brings to the experience varying degrees of expertise and often differing points of view, thereby invigorating classroom exchanges. However this may be, the success of our venture bodes well for the more economical one professor, 'client-server' model, under which law schools may offer and receive courses that are not available at all schools.

As noted, virtual classroom meetings were supplemented with asynchronous contact and I maintained a listserv on which summaries of topics were posted and where students could raise questions and make comments. The degree of student input was less than ideal. I would attribute the relatively low level to the very heavy class meeting schedule and to the absence of a vibrant 'Internet Culture'[25] at the two schools. Law students at most law schools in the United States are accustomed to meeting with faculty and other students in real time, face-to-face live settings.[26] But, students' expectations are changing as more faculty employ e-mail, listservs, web pages and online conferencing[27] and as law schools invest in the infrastructure and communications support needed to make these alternatives convenient and efficient.[28]

I properly anticipated the desirability of videotaping the video conferencing sessions to assist in evaluating the use of the technology and demonstrate it to others. But, because of our lack of experience, both sides taped the ASU end. In retrospect, we should have had each end tape the transmissions from the other and then swapped tapes rather than both ends taping the ASU end. However, we still were able to produce a rich collection of tapes containing an entire debtor-creditor law course. One could imagine a market for the tapes. Such marketing would pose the question of who owns the content of the tapes. That question could arise irrespective of whether a distribution is for profit. An argument could be made that the students either had no rights to the content or implicitly waived whatever rights they might have had and that I and Professor Furnish hold any copyright.[29] But, it would be good practice to obtain releases and waivers up front from all the participants.

3.2 A Transnational Simulation Exercise

My next foray into using video conferencing involved a very different teaching experiment. Professor Andrea Johnson, at Cal Western in San Diego, California, Todd Nelson, at the Monterrey Institute of Technology (ITESM) in Monterrey, Mexico, and I collaborated to develop a simulation of a transnational business deal that broke down. In connection with the simulation students were assigned the roles of representing one of each of three main parties in the simulated dispute - a Tucson software developer/vendor (TechFirm or TF), a San Diego lender/financier (Sundown or SD) and a Monterrey licensee/purchaser of software and computers (MexMax or MM). The classes at each of the schools were divided so that there were students from each school on each team representing one of the clients. Thus, there were UA, Cal Western and Monterrey students on each team. We did this so as to get a good mix of students on each team, promote interaction among the three groups and avoid pitting the students at the separate schools against each other.

The problem around which the simulation was built was complicated. Simply-stated, the Tucson software developer, TF, licensed some inventory and billing control software that it had developed (called Surething) to the Monterrey party, MM, who at the time was a large manufacturer and distributor of clothing apparel. The software did not perform properly, seemingly because of the differences in fields needed for names and addresses in Mexico from those that worked in the United States. MM claimed that it had lost hundreds of accounts and suffered extensive monetary damages. In an attempt to resolve the dispute, TF provided MM with the source code to the software and offered to assist in achieving an appropriate solution. A fix was accomplished and the software then performed well, so well that MM decided to distribute the software itself under a different name (Anotherthing) in Mexico and Latin America.

By design, it was not clear what law should govern or how the governing law should be applied to the facts of the problem. MM's actions raised both domestic and international copyright issues. The software development had been financed by a SD, the San Diego lender, who took a security interest in the software and any receivables generated by the distribution of the software. Because of its pre-occupation with the initial failure of the software and the subsequent actions of MM, TF experienced financial difficulties and was threatened with foreclosure by SD. U.S. law is still developing as to the steps that must be taken to create and perfect a security interest in copyrighted materials and the receivables they produce and the facts were deliberately unclear as to whether SD had done enough to adequately protect its interest. Our intent was that the legal and factual uncertainties would force the teams representing the three parties to negotiate a 'win/win' rather than a zero sum winner-takes-all outcome.[30] The basic responsibility for the three primary legal areas was allocated according to the expertise of the faculty involved. Each of us delivered a foundational lecture that was video taped and distributed to the other sites. I was the secured financing expert and the UA students on each team were 'lead counsel' on the U.S. secured financing issues. Professor Johnson served as the expert on copyright law and her students were lead counsel on those matters. Todd Nelson was the expert on Mexican law as to both of these areas of law and his students were lead counsel as to Mexican law.

The negotiations took place using a combination of asynchronous and real time communications. We established four listservs. One was a general list to which all the students and faculty belonged. There also were three private lists, one for each team. The private lists were for confidential communications. In addition, I created a simulation web site. This site was a repository for all the important documents, including the problem statement, helpful resource materials and the names and addresses of all the students and their team assignments. The web site was set up to permit threaded discussion and postings by all who were permitted access to the site, which was all the students and faculty at the three institutions.

The asynchronous communications were supplemented by two telephone conferences and by two video conferencing sessions of two hours each. Coordinating the real time communications was not easy. At the time of the exercise, San Diego was on PST, Tucson on MST and Monterrey on CST. We had to bring together students from three educational institutions, enrolled in three different courses, offered at three different local times on different days, across two different states, two different countries and three time zones.

Image 6

Professor Johnson
Cal Western Site
Image 7

UA Students viewing
Professor Johnson

The first video session was aimed largely at testing a three-site connection, acquainting the students with each other and with the technology and explaining our expectations of the students. Professor Johnson had prepared a handout explaining the win/win objective and how it might be achieved through negotiation and without litigation. She led the discussion during the first videoconference.

To get a sense of how that session went, click here [15,439KB].

Our plan was that the second video conferencing session would provide the opportunity for hard negotiating that, ideally, would lead to an agreement among the parties. Most video conferencing uses a voice activation arrangement according to which the video cameras follow who is speaking. Whoever speaks the loudest and most often tends to have control of the video. With voice activation, moreover, each site sees only the site where someone is speaking. Effective negotiation involving multiple parties is best done using what is referred to as 'continuous presence' connectivity. With continuous presence, each site sees the other sites at the same time on a split screen and the sensation of being in a meeting with the parties at the other sites is all the more real.[31]

Multi-site connectivity, whether voice activated or continuous presence, requires the use of a device called a bridge. Most of the major carriers (and a few independent entities) rent bridge time. Each site calls the bridge and the bridge manages the communications. The logical choice for us seemed to be a Sprint bridge because all three of the institutions involved in the simulation had previously used a Sprint bridge in doing video conferencing.

To our great disappointment, the Sprint bridge connection failed to give us continuous presence conferencing. Worse yet, the audio quality of the connection to the San Diego site was so bad that San Diego eventually fell out of the session and the students from the UA and ITESM had to engage in negotiations without input from of the San Diego team members. Despite this breakdown, there was a spirited exchange between teams located at these two sites. To experience some of the give and take, click here [8,125KB].

Image 8

Todd Nelson ITESM
Image 9

Room 201 with ITESM
on the Monitor

For reasons unrelated to the use of video conferencing, a complete agreement did not emerge from the negotiations,[32] but the students and faculty and invited observers[33 ] were satisfied that the experiment had amply demonstrated the important role that video conferencing can serve in complex legal dispute resolution involving widely geographically-separated parties and their attorneys. That 'virtual' negotiating could substitute for physical meetings requiring costly and time-consuming travel to a common site was apparent to all. That video conferencing will have an especially important place in the resolution of disputes in an international setting also seems to have been made clear.

A painful lesson learned from the effort is that it should never be taken for granted that the technology will perform properly, even where a major commercial vendor has offered assurances that it will so perform. We did not conduct as many tests as Sprint would allow. But, more and repeated testing as well as an ample pre-negotiation session set up period was needed. Of course, this need for testing and retesting is not unique to video conferencing. Any technology can fail and users should be prepared for this eventuality. The correlative point is that technology users should have a fall-back plan that permits the use of non-technology based means or a postponement for as long as is necessary to get the technology to perform adequately.

Video conferencing does not solve all the problems of physical and temporal separation. As noted, time zone differences can pose special obstacles that must be anticipated and overcome. But, the fact remains that it is far easier and cheaper, and by all indications no less effective, to bring parties and their attorneys together in a virtual negotiating session than it is to force the parties to travel to some 'neutral' site the selection of which can pose its own set of difficulties.

It should be apparent that the project did more than confirm the importance of video conferencing in dispute resolution. It also demonstrated the great pedagogical value of the technology. Simulations provide wonderful learning experiences.[34] This particular simulation involved learning about the limitations on the utility of litigation, the importance of negotiation and the increasing role of technology in law practice of the future. These messages were not lost on the students who fully understood that we are at the beginning of the future with regard to business and legal interaction that will be increasingly global in scope.[35] They understood that the exercise offered an important glimpse of the future with regard to commercial dealings and how the disputes that arise will be resolved with the aid of technology such as video conferencing.

3.3 Examination of Expert Witnesses

Another telling use was made of video conferencing in a course offered at the UA called Information Technology and the Judiciary. This course explores various uses of advanced technology in litigation and law practice and considers the advantages and disadvantages.[36 ] Practitioners and courts have become very interested in video conferencing as a means for reducing litigation costs. Of particular interest is using video conferencing to depose or examine an expert witness rather than bringing the expert physically to the location where the legal dispute is being fought out.[37] Video taped depositions of experts and even parties have been used with success in the past.[38] But, interactive video examinations are new. Testing the technology so employed, therefore, was very timely.

An exercise was developed that required the students to cross examine a forensics expert in a wrongful death action using interactive video. The problem setting was not uncomplicated. In a nutshell, the pivotal issue was whether the victim had been shot in self defense or not. The only witness to the incident was the shooter, the defendant in the civil action. The victim had been shot once in the back and once in the chest. The question requiring forensics' input was whether the victim had been shot first in the back, thus spinning him around, and then shot in the back or vice versa.[39] The students worked very hard creating all the physical evidence, including photos of the scene of the shooting, a shooting incident report, a medical examiner's report, and an autopsy report. However, the focus of the exercise was the testimony of a forensics pathologist employed by the defendant and whose testimony supported the medical examiner's conclusion that the shooting had been in self defense.

One of the students enrolled in the class was an M.D. He played the role of the expert and, it is fair to say, he took to the task with a zeal that made him a formidable witness. The direct examination of the defendant's expert was done live (although in a fuller exercise it could have been done using video conferencing as well) and a transcript of witness's testimony was created and made available to the students for use in their cross examinations. According to the simulation, the expert was a New York physician who was testifying from New York. In fact, he was in a video services facility located in a building outside the law school on the UA campus. The students conducted their cross examinations from the video-equipped classroom in the law building. That the expert was not really in New York made no difference in terms of the nature and quality of the communications. Using two campus facilities did of course mean that the costs were negligible.

The images that follow are what each party was seeing on the monitor at his site.

Image 10

Forensics Expert
Image 8

Student Attorney

None of the students had ever used video conferencing before. To familiarize them with the technology, we did a lengthy test run in which the students, both those who would do the cross examination and the student playing the role of the expert, were able to experience communicating using video conferencing. It had been explained to the students that the video quality would likely not present a problem but that there is a bit of an audio lag even at 384 KBS.[40] Many expressed concern that this lag would interfere with their ability to control the witness and, specifically, that the witness might engage in non-responsive and potentially damaging answers that the examiner could not cut off. The difficulty of controlling a determined adverse witness of course exists in a live setting, but I wanted the students to experience first-hand the extent to which the video communications medium might compound the problem.

The actual cross examinations lasted on the average about twenty minutes each. So that each examination would be largely independent of the others, the students were not permitted to observe each other's examinations until they had complete their own examinations. Not surprisingly, each student had his or her own style and method. Good use was made of the document camera to display images, such as that of the gunshot wound. Most quite rightly made much of the fact that the expert was an acquaintance and colleague of the medical examiner, was being paid to testify by the defense and, perhaps most importantly, had no first-hand information but rather based his testimony on the autopsy and medical examiner's report.

The students readily assumed their roles and engaged in lively exchanges that seemed unaffected by the fact that they were speaking to an image on a monitor rather than conducting a live face-to-face examination. With one exception, the technology functioned well. In that one instance, an unexplained line noise interfered with one student's examination. The student handled the interference well by simply asking the witness to sit patiently until the audio cleared up. Both the examiner and the witness accepted the fact that such difficulties may be encountered and must be dealt with as with interruptions that can occur during live examinations.

Image 12

Student with Expert on Monitor
Image 13

Exhibit on Elmo Camera

A bit of the flavor of the lively exchanges can be experienced by clicking here [24,959KB].

The cross examination exercise was by all accounts a success. Observing the students during their examination it was apparent that they quickly engaged as if they were doing a live examination. The students were required to write papers in which they were asked to describe and critique their experiences and assess the potential of the technology in litigation. They uniformly concluded the technology permits effective examination. The audio lag seemed not to be nearly the problem many had anticipated it might be and all indicated it was a manageable variable. All were satisfied that the technology could produce significant cost savings without sacrificing the quality of the examination. The cost savings are perhaps the most important reason for doing examinations (or depositions) using video conferencing. Another important benefit is the convenience, or reduced inconvenience, to the expert.

Interestingly, many students, including the student playing the expert, commented that in some ways the video conferencing resulted in a more intensive experience than a live examination. By this they meant that they were more focused on each other and that there were less distracting stimuli than in a courtroom setting. Some worried, and rightly so, that they did not have the opportunity to observe juror or judge's reactions and that these cues were lost. However, it is entirely possible for a judge and a jury to observe a video conferencing exchange and for the cameras to be positioned so that the examiners and witnesses are able to watch the jurors and the judge for whatever signals their behaviors might give.

Other, perhaps less easily managed, problems are posed by the use of video conferencing. For one, the expert likely will not be in a courtroom but rather in the video facility of a law firm or in a studio operated by a commercial video conferencing vendor. It has been observed that the ambiance and trappings of solemnity associated with a courtroom must be preserved and not be sacrificed to permit the use of technology.[41] However, the witness will be under oath and may be instructed in such a way as to help set the proper tone. And, as noted, properly positioning the video cameras can enhance the illusion of being present in the courtroom where the proceedings are actually taking place. The opportunities for a witness to improperly consult notes or other materials not in evidence or even be 'coached' during his or her testimony are potentially greater where the witness is testifying from a remote site. Again, however, positioning the cameras so as to give a view of the witness that minimizes these risks is possible. Still, empirical research is needed to determine if these responses are adequate.[42]

The foregoing legitimate concerns, notwithstanding, the reality is that video conferencing will increasingly be used in litigation. Video conferencing-based exercises such as that described here serve the very important purpose of preparing students for its use. They also provide the setting and opportunity to do empirical studies of the advantages and disadvantages of using video conferencing in litigation and thereby move us beyond the largely anecdotal information that we have about the impact of using advanced technology in law practice and litigation generally.[43]

Lawyers, perhaps even more so than educators, must be cognizant of the copyright and other such issues associated with using still images and video clips in their work. Whatever privileges attach to litigation-related activity do not necessarily extend to publishing outside that setting.

3.4 A Virtual Bankruptcy Court Proceeding

Courts have begun investigating various applications of video conferencing. The United States Court of Appeals for the Second Circuit has been permitting oral argument using video conferencing for over a year.[44] I had occasion to do an assessment for the Electronic Courts Project of the experiences of those who had used the technology. A substantial majority of those who had engaged in oral argument using video conferencing responded very favorably stressing the cost savings of traveling to New York City and avoiding the inconvenience of doing so.[45] At the time I did my investigation there were only three remote sites in operation. Since then seven more sites have been added and the project clearly has been judged a success. Judge Larry Kelly, a bankruptcy judge in Texas, has been using video conferencing to avoid 'riding circuit' (traveling all over the Western District of Texas).[46] A parol judge in Iowa, is using video conferencing for parol revocation hearings. The technology so used avoids security and other such concerns associated with hauling convicted felons around or requiring witnesses to travel to places of incarceration.[47]

The interest expressed by courts and judges inspired me to do another simulation, this one of a bankruptcy court proceeding. The simulation was done at the Arizona State Bar Convention at a resort in Tucson, Arizona. It was aimed at demonstrating the potential of video conferencing to the large number attorneys, judges and court administrators attending the convention. The staged proceeding involved a motion to lift the automatic stay that is triggered when a bankruptcy petition is filed. Video conferencing was used to allow the judge to hear oral arguments on the motion. A three-way connection was established with the judge, a local bankruptcy judge, presiding from the UA law school facility, one attorney at the convention site and opposing counsel at a site in Phoenix, Arizona.

Image 14

Judge Marlar
Image 15

Attorney at Convention Site
Image 16

Attorney in Phoenix

With Picture Tel systems today, doing three-way continuous presence requires that the monitor space be divided to show the remote sites. This means what each site sees are two images and a blank space. The effect is captured in the second image that follows.

Image 17

Judge Marlar in Room 201

image 18

Split Screen View from Room 201

To experience some of the give and take (humorous but illustrative), click here [8,969KB].

Despite some technical glitches attributable to the temporary nature of the set up at the convention site, the response of the participants, the judge and the attorneys, and the observers in attendance, was quite positive. In many states, including Arizona, bankruptcy courts are located in the major cities. Bankruptcy proceedings involving parties and attorneys living or practicing outside these cities require that the attorneys and parties travel to where the courts are located or that the judges go to them and conduct proceedings in temporary courtrooms. Video conferencing is a means for reducing the amount of traveling and otherwise improving the administration of justice in bankruptcy. As noted above, at least one Texas bankruptcy judge has already turned to and made successful use of video conferencing.

3.5 Virtual Guest Lecturers

Last spring I investigated a variation on the expert witness scenario. Most educators agree that their classes would benefit from guest lectures by experts. But, desirable guests often are located at some considerable distance from the campus where the class is being conducted. The costs of bringing a guest expert physically to a classroom can be prohibitive. However, video conferencing permits a 'virtual' classroom visit.

I invited several experts on a range of topics covered in my Cyberlaw course to visit my class as virtual guests. Among them was Trotter Hardy, an intellectual property expert at the William and Mary College of Law in Williamsburg, Virginia. For Professor Hardy to travel to Tucson to lecture for an hour simply would not make sense. However, he was happy to visit my class using video conferencing.

As it happens, the William and Mary College of Law has video conferencing capability on site and this greatly facilitated the visit. The time zone differences had to be overcome (Arizona is two hours earlier than Virginia), but this was accomplished at only minor inconvenience to Professor Hardy, certainly as compared to that he would have suffered in order to be physically present.

Image 19

Professor Hardy
Image 20

Room 201 with Professor Hardy on Monitor

Trotter Hardy is an entertaining as well as very knowledgeable teacher. He clearly is better-versed in intellectual property matters than I. His presentation, which was supplemented with a Power Point slide show, enriched the learning of experience of the students in ways that would have been lost were it not for the video conferencing option for bringing him to my class. To listen in on Professor Hardy's presentation, click here [3,919KB]. Then click here [7,813KB] to observe the introductions to get a sense of how the use of Power Point worked out.[48 ]

We also were fortunate to have as a guest expert Professor Jane Winn from Southern Methodist University Law School. Professor Winn is a highly-regarded authority on electronic commerce and her presentation was directed to that very important subject.[49]

Image 21

Room 201 with Professor Winn on Monitor
Image 22

Professor Winn as seen from Room 201

A sense of the presentation and exchange between my class and Professor Winn may be gained by clicking here [16,433KB] and also here [13,359KB].

The other guest we had last semester was Professor William Anderson from the University of Washington Law School in Seattle, Washington. Professor Anderson is an antitrust expert who has lectured widely on the Microsoft litigation. He 'visited' the UA Law School and did a presentation on that litigation. I invited a group from the University of Minnesota Law School in Minneapolis, Minnesota to sit in on the presentation. Consequently, we were doing a three-way connection. Unfortunately, about fifteen minutes into the session the UA connection was inexplicably dropped and could not be resumed. However, Professor Andersen continued with the Minnesota group and the accounts I received from him and the folks at Minnesota indicated that the session was satisfying for both. Despite this glitch, such multiple connections are clearly doable and increase the value of the technology for doing virtual classroom visits.

To achieve the degree of interaction possible, such multi-point sessions are best done using 'continuous presence.' Currently, as was noted in connection with the discussion of Virtual Bankruptcy Proceeding above, continuous presence divides the monitor image into quadrants. This effect is not optimal (but should be improved in time). How it looks to the participants can be seen in the images that follow. To 'sit in' on the presentation click here [8,477KB].

Image 23 

Professor Andersen, the Minnesota
Site and Yours Truly

Not all the visitors are from law schools that have video conferencing facilities, but university facilities are available to most and others can make use of the now almost ubiquitous commercial sites.

4. Some Lessons Learned and Thoughts about the Future

The projects described in this article should have made it abundantly clear that video conferencing may indeed change the way we go about doing legal education and law practice. The joint teaching, 'virtual classroom,' project offers convincing evidence that video conferencing may be used to expand curricula by permitting law schools to share offerings and by eliminating the need for every school to offer every desirable course (or, more often, go without enriching offerings). Certain administrative problems stemming from differences in registration and grading practices and tuition disparities, especially as between private and publicly supported institutions, must be resolved.[50] But, real and imagined concerns that video conferencing cannot support robust and fully-interactive instruction in a distributed or distance learning setting should have been put to rest.

The transnational simulation project vividly illustrates the critical role that video conferencing can play in the increasingly global legal domain of the future and, equally important, how that technology can assist law students to prepare for the technologically based law practice of that future. In particular, the project demonstrated that video conferencing can facilitate negotiated solutions to complex legal disputes, especially those arising in an international setting.

The cross examination exercise provides powerful support for the belief that video conferencing can do much to reduce the exploding costs of litigation and do so without sacrificing the integrity of the judicial processes in connection with which the technology is used. More empirical study of such uses of video conferencing is needed, but the indications are that the results will be strongly positive. The virtual bankruptcy proceeding project similarly reveals how video conferencing can be used to reduce costs and wear and tear on judges, attorneys and clients, especially where courts are located at such distances from attorneys and clients that the administration of justice has been detrimentally affected.

Guest lecturers can enrich a classroom learning experience. Most educators understand this to be so but they have been unable to bring experts to their classrooms because the costs and inconvenience have outweighed the value added. It should be good news to educators that experts need not be brought physically to a classroom and that a video conferencing session with an expert can be done at much less cost and with much less inconvenience and with no noticeable loss of learning impact.

Presently, such interesting and exciting applications of video conferencing in law practice and legal education as those considered have required ISDN or T-1-based connectivity[51] in order to get an adequate level of video and audio quality. Decreasing costs and wider deployment of facilities equipped to do such video conferencing will help to assure that the great promise of video conferencing is realized. But, other options may ultimately be important in moving the video conferencing venture forward.

Until recently, desktop video conferencing, which is much more portable and much less expensive, especially if it connects across the Internet, has not provided sufficient quality to support the true, face-to-face real time interaction needed to engage in the activities described in this article.[52] However, dramatic advances have been made recently in the compression algorithms used in desktop video conferencing and systems that can support the applications described here have appeared on the market.[53] The emergence of a viable desktop alternative to the relatively more expensive and cumbersome to deploy systems that so far have been required should further assure that the considerable promise of video conferencing is realized.

True broadcast quality video conferencing, such as is used extensively in the television news industry, generally has required very expensive satellite communications. With certain notable exceptions, satellite video conferencing has seen relatively little use in education and law practice.[54] But, if there is one constant regarding technology it is that the functionality continues to improve as the costs decrease. This likely will happen to satellite-based communications. Beyond this, there are indications that the better desktop systems will be capable of providing broadcast quality video conferencing.[55]

5. Conclusion

So, what is video conferencing good for? Hopefully, I have demonstrated that video conferencing has many possible uses in legal education and law practice-related only a few of which have been described here. Advances in video conferencing technology and wider deployment of higher quality and lower cost equipment and facilities should hasten efforts to harness the power of this exciting new technology and guarantee that it will change the way we think about and go about doing legal education and law practice.[56] The introduction of quality desktop video conferencing, in particular, seems likely to insure that this will happen sooner rather than later.

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