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JILT 1999 (3) - Boyd - Footnotes

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

Footnotes

1. This article is based on a paper presented to the 5th International Conference on Substantive Technology in the Law School (SubTech98) held in Stockholm, Sweden in July of 1998. The paper can be found online at: <http://www.law.arizona.edu/boyd/publications/>.

2. The title is based on a quote attributed to an engineer at the Advanced Computing Systems Division of IBM in 1968. It ranks right up there with Bill Gates' proclamation in 1981 that '640K ought to be enough for anybody' (And, the assertion of Ken Olson, President and Founder of Digital Equipment Corporation: 'There is no reason why anyone would want a computer in their home.').

3. See, e.g., M. Alavi, Y. Yoo, and D. Vogel, 'Using Information Technology to Add Value to Management Education,' Academy of Management Journal, v. 40, No.6, pp. 1310-1333 (1997) (Reporting on the MIS joint teaching experience); M. Bruce & R. Shade, Effective Teaching and Learning Strategies Using Compressed Video, Tech Trends, p. 18 (Sept. 1995); G. Whitaker, First-Hand Observations on Tele-Course Teaching, T.H.E.J.. v. 23, p. 65 (Aug. 1995). Experience in the area of legal education is more limited, but the reactions are similar. A. Aarons, On-Line U, California Law J. (March 4, 1996); S. Davis, Remote Learning by Leaps and Tumbles, California Lawyer, p. 50 (August 1996); K. Meyers, Real Law in a Virtual Classroom: San Diego and Cleveland Join Up, National L. J. A15 (Jan. 29, 1996).

4. The conference entitled, 'Deconstructing the Law School Classroom,' was jointly sponsored by the Center for Computer-Assisted Legal Instruction (CALI) and Chicago Kent Law School. The program included presentations on such basic questions as what makes an effective law school learning experience, the extent to which the positive features of that experience can be captured in an electronic environment and whether and how accreditation requirements can be adapted to support distributed legal education. The program along with a continuing discussion can be found at: <http://www.cali.org/clc_cali_workshops/1999/>

5. See S. Davis, Two Places at Once, California Lawyer, p. 66 (August 1995). The interest reflects a growing recognition in the profession that technology must be investigated and exploited. S. Keeva, Opening the Mind's Eye, A.B.A.J., p. 48 (June 1996); Proceedings of the First Annual Institute on Courtroom Technology, University of Arizona College of Law (Tucson, AZ May 5-6, 1995), available on line at <http://www.law.arizona.edu/instit1.html> [Hereinafter Courtroom Proceedings]. See generally , H. Perritt, How to Practice Law with Computers (PLI 2d ed. 1992); W. Boyd & W. Woods, Review: How to Practice Law with Computers by Henry Perritt, Jr., International Journal of Law 1994)

6. Courtroom Proceedings, supra note 5 (Keynote address by Joe Cochette).

7. See J. Glasner, Second Circuit Unveils Latest Courtroom Tech, N.Y.L.J. (Nov. 10, 1997) (reporting on the Second Circuit Court of Appeals oral argument project), available on line at: <http://www.nylj.com/tech/111097t2.html >; Video Conferencing: The Future is Now, Bankruptcy Court Decisions, v. 31, no. 9 (Sept. 30, 1997) (Reporting on the uses of video conferencing by bankruptcy courts around the U.S.); J. Mathias & J. Twedt, Video Conferencing for the 21st Century (Paper prepared for the Fifth National Court Conference Sept. 1997) (Discussing various actual and potential uses of video conferencing in judicial proceedings - including that by Judge Twedt in parol revocation hearings - and suggesting methods of assessing these uses).

8. Most of the images were 'grabbed' from the video tapes using some inexpensive technology called Snappy (from Minolta Corporation) which consists of a device that connects to the parallel port of your computer and some easy to install software. To see how Snappy looks to a user, check out: < http://www.lynchburg.edu/public/docs/techclas/snappy.htm>. To reduce the size of the images taken from color video tapes, the color was removed using Adobe PhotoShop. The Adobe home page is at: <http://www.adobe.com/>.

9. Many of us who are attempting to apply new technologies are not intellectual property law experts and do not have the time or the inclination to undertake to become experts in that field. Rather, we content and design experts must collaborate with intellectual property experts. In preparing for the paper upon which this article is based, I received assistance on a range of issues associated with video conferencing from Professor Jessica Litman, an intellectual property expert from Wayne State University Law School, in Detroit, Michigan. Some of our exchanges are reported in the paper on which this article is based and which can be found online on the UA web site at: <http://www.law.arizona.edu/boyd/publications/>.

10. The relevant sections of the U.S. copyright law may be found at 17 U.S.C. 100, 110, 112 (1996). Many parts of the copyright law were revised and extended in the Digital Millennium Copyright Act, signed into law in October of 1998. A useful guide for academics is: L. Enhagen, Copyright Law and Fair Use: Why Ignorance Is Not Bliss C A Case for Using Guidelines (1997), <http://www.ntu.edu/1/atmp/1997Courses/mc97050291.htm>.

11 . The risk of defamation liability, for example, cannot be ignored. 'Liability by linking' is not out of the realm possibility. In this regard it is worth noting that the Digital Millennium Copyright Act, supra note 10 contains a set of sections aimed at protecting Internet Service Providers, including educational institutions, from third party liability. See Ballon & Kupferschmidt, Third Party Liability under the Digital Millennium Copyright Act: New Liability Limitations and More Litigation for ISPs, CyberSpace Lawyer, v. 3, no. 8, p. 3 (November 1998).

12. See, e.g., W. Boyd, The Pictures (and Sounds) Have It, Proceedings of the Third International Conference on Substantive Technology in the Law School (Paris, France July 1994) and Information Technologies, vol. 2, no. 1 (1995); W. Boyd, New Frontiers in Instructional Software, 3 Law & Tech. J. 12 (University of Warwick, England 1994); W. Boyd, Electronic Course Materials - The Time Is Now, The CALI Report (Fall 1992/Winter 1993).

13. These guidelines, and additional information regarding the guidelines, may be found at: <http://www.abanet.org/legaled/distance.html>. The guidelines, and the extent to which they impede online educational opportunities, were discussed at length at the conference referred to supra, at text and note 4.

14. W. H. Graves, Information Technology: Additional Cost or Strategic Asset, OIT Review 2-3, 28-30 (Fall/Winter 1994), available on line at: <http://www.iat.unc.edu/publications/graves/graves5.txt> William H. Graves, who is Senior Vice President for Collegis Learning Network Services, may be best known as the founder of the Institute for Academic Technology, a partnership between the University of North Carolina and IBM, and as a co-founder of the National Learning Infrastructure Initiative (NLII). For information as to the latter, see <http://www.educause.edu/nlii/>.

15. ISDN (Integrated Services Digital Network) connectivity involves translating analog video and audio communications into digital signals that are sent across specially configured telephone lines and converted at the receiving end back to analog. The device used to convert the signals is a codec (coder-decoder) that behaves much as a modem in reverse. ISDN sometimes is referred to as BRI (Basic Rate Interface). BRI is the interface used to connect telephone and terminal equipment to higher-order devices. T. Pardoe & R. Wenig, Data Communications Networking Dictionary 11 (Professional Press Books 1992).) The UA facility also is equipped for T1 (wide band) connectivity. A T1 carrier is a specialized digital transmission system developed by AT&T that operates at a total speed of 1.544 Mbps using time-division multiplexing techniques. Id. at 135.

16. A minimally acceptable quality requires speeds of at least 384 KBS. A principal reason for the emergence of ISDN-based video conferencing was a sharp reduction in cost in recent years. This is not at all to say that such technology is inexpensive. The cost of a good quality codec, video camera, microphones and monitors is about $50,000. Typically, the ISDN lines must be leased (about $70 a month) and there are per session line charges (about $60 an hour) and there will be bridge charges for doing a multipoint connection (another $60 an hour). But, the costs and charges are decreasing and not every college or department has to install its own facility. Most major campuses have a well-equipped video conferencing facility that is available for use by campus units (or even by other university units) and there are commercial options such as Kinko's as well. The collaborative nature of video conferencing efforts means that the production and operations costs can be shared by all those participating in a video conferencing venture.

17. The URL for Picture Tel is at: <http://www.picturetel.com/>.

18. A codec is a device used to convert analog signals to digital signals for transmission over ISDN or T1 lines.

19. A multiplexer, or MUX box, is used to merge data streams from multiple lines into one line.

20. This intensive meeting schedule was necessary to satisfy the requirements of a three-credit course during the summer calendar.

21. There is a T1 line between the UA and ASU and we were able to use enough of the line to achieve 384 KBS speed (the equivalent of three ISDN lines - which as noted is about the minimum for acceptable interactive video). For an explanation of T1 connectivity, see supra note 15.

22. M. Geist, Where Can You Go Today?: The Computerization of Legal Education from Workbooks to the Web, 11 Harv. J.L. and Tech. 41 (Fall 1997).

23. There may be some tension between my view and that of the ABA/AALS accreditation committee that has promulgated temporary guidelines for video conferencing. The URL for the guidelines is provided supra note 13. These guidelines reflect a concern that distance learning could devolve into a correspondence course experience bereft of the regular interaction assumed to be necessary to effective education under the U.S. model. Arthur Gaudio, the Deputy Consultant for Legal Education to the AALS for the ABA, who has been responsible for approving video conferencing projects on an experimental basis, has made clear that the guidelines permit only course offerings that include a significant degree of student and instructor real time interaction. The tension and other possible concerns, such as that distance learning will replace residential education and technology generally will reduce contact between students and faculty to an unhealthy extent, and my responses to them are considered more fully in the paper upon which this article is based and which may be found online at: <http://www.law.arizona.edu/boyd/publications/>. These matters were debated extensively at the conference referred to supra, at text and note 4.

24. The two professor/two institution model has been used successfully by the MIS departments at the UA and University of Maryland. Alevi, et al., supra note 3.

25. M. Geist, supra note 22. See also, C. Twigg, The Need For A National Learning Infrastructure, Educom Review v.29, Numbers 4, 5, 6 (1994), available on line at: <http://www.educause.edu/nlii/keydocs/monograph.html>.

26. In Peter Martin's words, 'law students insist that they are enrolled in law school not computer school.' P. Martin, Educating Law Students in the Use of Information Systems by Using Information Systems in the Education of Law Students (Sept. 1992), available on line at: < http://www.juris.uqam.ca/aqdij/aqdij.zip/congres92/martin.html>.

27. The availability of user friendly conferencing software will give the enterprise a big boost. Such software is available from West (TWEN) and Lexis (Lexis Exchange) and others as well. The UA is using software called Forums from Allaire. It can be licensed relatively inexpensively and several UA faculty have begun using it to build course home pages. The faculty home pages can be accessed from the UA Law College web site which is at: <http://law.arizona.edu/>. The Allaire home page is at: < http://www.allaire.com/> The URL's for TWEN and Lexis Exchange, respectively, are: <http://lawschool.westlaw.com/> and <http://www.lexis.com/xchange/>

28. Geist, supra note 22. The essential need here is for remote (dial up) PPP (Point-to-Point Protocol) functionality. PPP is an Internet protocol defined by RFC (Request For Comment) 1172 and 1171 that is used to control the transfer of Transmission Control Protocol/Internet Protocol (TCP/IP) packets across dedicated serial transmission lines. Pardoe and Wenig, supra note 15, at 110. In plain English, PPP gives students (and faculty) full Internet capability, meaning not only e-mail and file transfer but also browsing with Netscape or Internet Explorer. Dial up PPP was made available to UA law students this spring. The importance of computing professionals to the creation of such an Internet culture cannot be overstated. See Computing in Legal Education - Getting From Here to There, in Proceedings of the Second Annual Conference for Law School Computing Professionals (Chicago, Il June, 1993).

29. There is general agreement that the sender of an e-mail message owns the content of the message, but it is not clear, at least to me, that the rule would operate very well as to threaded mail discussions. The same uncertainties would seem to extend to video conferencing.

30. The simulation took place over a six week period within existing courses at each of the three institutions. Doing the simulation exercise within existing courses was necessary to avoid creating new courses at each of the schools that would have had to be approved at each school.

31. There is an additional charge for continuous presence, which from Sprint is $15 per site per session.

32. There was some unfortunate posturing and unconstructive repeated threats. Also, the teams representing TF and SD had entered into an 'alliance' according to which the fate of each was tied to that of the other. This 'ganging up' served to put the MM team even more on the defensive and was not conducive to a mutually acceptable resolution. My efforts to convince the Tucson and San Diego parties that their interests could and at some point might well diverge were unsuccessful and the basic negotiations ended with an agreement that more negotiation would be needed.

33. We had decided to invite to the concluding session experienced practitioners and others whose feedback would be helpful to the students participating in the simulation. I invited an adjunct faculty member who has had considerable experience with cross border legal disputes and was at the time teaching an international litigation course at the UA. This practitioner came to the session and brought his students. The faculty person was satisfied that MM was the party who should be sweating it out. However, one his students, an LL.M. student and an attorney in Russia was adamant that TF (and SD) had great leverage insofar as forcing MM into court in the U.S. would, in his judgment, be difficult at best and, therefore, TF would have to try to make its case on the law and for whatever relief might be available through the Mexican legal system.

34. Simulations put students into situations where they must represent clients and apply what principles and skills that they tend to relate to only in some abstract way in the classroom. See Boyd, supra note 12; W. Boyd, Computer-Assisted Instruction - Today and Tomorrow, Arizona Law Record (Fall/Winter 1985) (Explaining my use of Professor Lynn LoPucki's, Debtor Creditor Game simulation, as reported at the International Conference on Legal Education in the Year 2000 (Glasgow, Scotland, July, 1985).

35. Or, as the great American philosopher Yogi Berra reportedly observed 'The future ain't what it used to be.

36. The course, incidentally, is one of the ways the UA is responding to the demand in the McCrate Report of the American Bar Association that students have more law practice related experience in law school. Many of the course projects are inspired by and support my research activities and those of Professor Winton Woods, the Director of the Courtroom of the Future Project, who co-teaches the course. I am currently investigating the impact of technology on jury decision making and the cross examination exercise provided an me an opportunity to begin examining how fact finders, judges and jurors, would react to examination done using video conferencing. Other such research is reported in W. Boyd, et al., Investigating the Impact of Advanced Technology on Trials: The Courtroom as a Classroom, Proceedings of the Twenty-Ninth Annual Hawaii International Conference on Systems Sciences (HICSS) (Maui, January 1996).

37. See, e.g., Courtroom Proceedings, supra note 5 (Keynote address of Joe Cochette).

38. Video taped depositions were used effectively in such high profile cases as that involving the failure of Lincoln Savings (the 'Keating Case') and the Exxon Valdez oil spill disaster. Id. (Addresses of Joe Cochette, lead counsel in the Keating Case and Brian O'Neill, lead counsel in the Exxon Valdez case).

39. It occurred to me that the spinning victim scenario might be implausible or even seem contrived, but I deemed it a clever way to achieve the desired degree of ambiguity in the evidence. To my surprise, I later learned there actually have been studies of spinning bodies and resulting gunshot wounds. See M. Hansen, Faster Than A Speeding Bullet, A.B.A.J., p. 38 (Sept. 1997) (Reporting on a study that concluded that quick turns by suspects can account for gunshot wounds in the back).

40. This speed requires three ISDN lines, which is how the UA facility is equipped, and is the minimum acceptable speed for achieving meaningful real time interaction. It is worth noting that video conferencing connection speeds ultimately are governed by the site having the lowest speed. Consequently, it is best to equip a site to do 384 KBS connectivity because that is the highest speed most can afford.

41. See G. Bermant & W. Woods, Real Questions about the Virtual Courthouse, J. American Judicature Society, v. 78, n. 2 (Sept. - Oct. 1994); Boyd, et al., supra note 36; Courtroom Proceedings, supra note 5.

42. Among the other questions raised in the students' papers were: Is there is a 'larger than life' effect and how it could impact attorneys and witnesses and observers, including jurors and judges? Does the audio lag require an attorney seeking to control a witness to interrupt in ways that could appear rude and create an unfavorable impression on the jury? and, Do witnesses actually watch juror reactions to their testimony?

43. Compare Boyd, et al., supra note 36. See also, Proceedings of Courts on Trial, a conference sponsored by the University of Arizona College of Law and the Institute for Economic Policy (Tucson, Arizona, April 17-18, 1998).

44. See Glasner, supra note 7.

45 . W. Boyd, Report to the Electronic Courts Project on the Second Circuit Court of Appeals Video Conferencing Project, dated March 31, 1998.

46. See Video Conferencing: The Future is Now, Bankruptcy Court Decisions, v. 31, no. 9 (Sept. 30, 1997) (Reporting on the uses of video conferencing by bankruptcy courts around the U.S.).

47. See J. Mathias & J. Twedt, Video Conferencing for the 21st Century (Paper prepared for the Fifth National Court Conference Sept. 1997) (Discussing various actual and potential uses of video conferencing in judicial proceedings - including that by Judge Twedt in parol revocation hearings - and suggesting methods of assessing these uses).

48. The Power Point presentation was transmitted using the video conferencing camera. More advanced systems allow computerized data to be sent simultaneously with the video and audio communications.

49. My sincere apologies are owed to Professor Winn for the unusual pose that was grabbed from the video clip.

50. I and Professor Jane Winn of the Southern Methodist University Law School (SMU) in Dallas, Texas, have considered a plan to 'swap' courses using video conferencing. Under the plan, I would offer a course at the UA (Cyberlaw) that would be available using video conferencing to students at SMU. All the students would enroll in my class at the UA and their performances would be graded by me. Professor Winn, in turn, would teach a course (the Law of Electronic Commerce) at SMU in which students at the UA would be permitted to enroll in the course at SMU which they would attend using video conferencing. Swapping course is a way to obviate the significant tuition differences that exist between the two schools resulting from the fact that SMU is a private school and the UA a state-supported public school.

51. An explanation of these technologies is provided supra note 15.

52. Included here are products such as Intel's ProShare (Information about Proshare is available at: <http://www.intel.com/proshare/conferencing/>) and Cornell University's CuSeeMe. (The CUSeeMe home page is at: <http://www.rocketcharged.com/cu-seeme/>). The relatively low speeds presently possible here (at least using a telephone modem connection) significantly limit what can be done with this technology. For the most part, it lends itself only to situations where the video image provides a sense of face-to-face to supplement an otherwise purely audio or even textual communication and where the quality of the video image is not essential to the effectiveness of the communication. As a tribute more to his ingenuity and special educational skills than the technology itself, Peter Martin of Cornell has made good use of CUSeeMe in a course he offers to several classes of law students outside Cornell. At this year's AALS Annual Meeting held in San Francisco in January, 1998, Peter Martin reported on the copyright course he has been teaching the past two years using a combination of CUSeeMe software and asynchronous communications and in which students from six law schools in addition to Cornell enroll. It should be noted that desktop video conferencing operating across a wide bandwidth LAN can produce high quality video that has been promoted as an effective way of substituting 'virtual' meetings for the sometimes seemingly endless and all-too-frequent physical meetings in the corporate world. A leading example of such proprietary (and expensive) technology is CPHONE. Information on CPHONE is available at: <http://www.cphone.com/>. A list of desktop video conferencing products is available at: <http://www3.ncsu.edu/dox/video/products_HIJK.html>.

53. A company to watch is Performance HiTech, Inc., located in Cerritos, California. The company's web page is at: <http://www.vic-corp.com/> I have been impressed with the quality of the video (although, oddly, the audio needs improvement) achieved using ISDN, the Internet and even ordinary telephone lines.

54 . There are some uses of this technology in education especially in the physical sciences and by institutions that are developing 'virtual universities' to serve multiple and remote campuses widely dispersed across a country or continent. A good example of the latter is the Virtual University established at the Monterrey Institute of Technology at Monterrey Mexico (ITESM). Information on the Virtual University at ITESM (Universidad Virtual del Sistema Technologico de Monterrey) is available at: <http://www.ruv.itesm.mx/>. The newly instituted LL.M. program at ITESM was a participant in the transnational simulation exercise described below. The American Bar Association has embarked on a satellite-based project for continuing legal education programs. The service is known as the Lawyer's Communication Network (LCN) and it is promoted as follows: 'LCN is the first digital satellite television network devoted exclusively to the legal profession. Using 'small dish' satellite technology, it provides you with a vast array of services, including the highest quality CLE programming right in your home or office, just by turning on your television set or computer.' Information regarding LCN is available at: <http://www.abanet.org/lcn/home.html>. However, the costs associated with satellite video conferencing so far have meant that communication normally is only one-way and interactivity is achieved using a telephone connection (or an electronic mail) operating concurrently with the video conference.

55. Performance HiTech, the company referred to supra note 53, is now marketing broadcast quality desktop systems.

56. Advances such as DSL (Digital Subscriber Line) support transmission speeds upwards of 768 KBS over POTS (plain old telephone lines). There is a growing network of video conferencing facilities world-wide. For a listing of such sites world wide, see <http://www.ast.cam.ac.uk/~ralf/vcguide/countrie.htm>. As noted, a number of vendors provide video conference facilities commercially. Best known, perhaps, are the Kinko's sites. A listing of the Kinko sites is available at: <http://www.kinkos.com/>.

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