Vol. 33, No. 5
CBA President's Message to Members
Can We Talk? Getting to a Policy of Cell Phones in the Courtroom
by Robert J. Truhlar
I love my cell phone, and I think everyone should always be allowed to have one with him or her at all times (except when driving, which should be a hands-free cell). After I tell you some of my experiences with cell phones, maybe you’ll understand why I feel this way. More importantly, I believe we must begin formulating a reasonable courtroom policy relating to cell phones.
A Little Background
Cell phones have begun to take over our lives. They will cause the Internet to pale in comparison—heck, some of the fancy-schmancy phones are already incorporating Internet technology. Portable phones have this technology when it comes to mobility, size, and general accessibility. Sitting at a desktop PC or even holding a laptop will soon seem ever so inconvenient compared to messaging over our phones.
Recently I heard on television that in the future, all cell phones would be tracked via satellite for purposes of identifying 911 callers. Businesses are planning to use this device in unique ways. At 5 o’clock in the afternoon, a restaurant that receives reservation cancellations or slow walk-in business may automatically page all people whose cell-phone tracers show they are within a five-mile radius of the restaurant. They may then inform them that there is no waiting at the restaurant or offer them a 15 percent discount if they come in within the next hour for dinner. We will all be tracked and targeted for commercial purposes. This could impact the legal system.
The Value of Cells
If you have children or you know someone you like to keep in touch with, you know the value of a cell phone. A few years ago, a news helicopter was circling over Thomas Jefferson High School because one student reported that another teenager had a gun. The school went into "lock-down" mode, but my daughter was able to call me from her cell phone and inform me that she was all right and describe the status of the situation. She didn’t want me to see it on television first.
In another past incident, when I arrived at home on Friday night, the phone rang and my daughter and her boyfriend were precariously stranded on I-25, on a very busy off-ramp, with a blown-out tire. My daughter called me on her cell phone and explained that they were out of harm’s way, but the car wasn’t; they needed help in rectifying the situation safely, quickly, and with a towing company. Then there was the time my daughter called my cell phone from her high school parking lot to tell me another student had just shot himself in a car a few feet from hers. I was able to leave where I was to meet with her in no time. I’ll never question the value of a cell phone after that.
Cell phones come in handy with elderly parents, as well. Several years back, my parents moved from their apartment into assisted living. To move them, I had to get a phone number in the new assisted living apartment, because it activates the emergency call system. I immediately called our local phone company. Due to the emergency nature of an assisted living location, they were able to connect the phone in the new apartment the next day. Also, they told me that I could keep the necessary phone line in my parents’ old apartment for seven days until they moved. What a great service!
Within hours, however, the telephone company had disconnected my parents’ current phone and multiple calls back to the company could not get it reconnected before they moved out. This presented me with the opportunity to lend my parents my cell phone for their apartment. It’s very entertaining to watch your 85-year-old mother, bless her soul, use a cell phone for the first time. My phone was the type that flipped open. After trying to dial the numbers, my mother used it more like an air traffic controller microphone, holding it straight up before her and shouting into the flipped part: "Hello! Hello!" Obviously, there is a market for attachments to cell phones for the elderly, like over-sized numbers and headphones.
Once at an Arapahoe County Bar Association dinner meeting, Dr. Waverly Person, who heads up the earthquake monitoring center in Golden, described how he is paged and notified of every earthquake worth talking about anywhere in the world. I’m glad he has a cell phone on at all times so that he can direct emergency services when he’s notified of these quakes. He had four notifications during the time in which he drove to our meeting!
I do employment law, and my clients’ cell phones often go off in meetings. I encourage them to answer. It might be an offer of reinstatement!
The proliferated use of cell phones will require us to develop a system of etiquette. Last month, I was sitting in a nearly empty movie theater in the last row, when three seats from me, a fellow’s cell phone went off. It didn’t bother me because I knew he must have had an emergency call. Perhaps the call was from a child, a teenager, an elderly parent, or a spouse. Unfortunately, the conversation I overheard went like this: "Oh, hi. . . . No, I’m not doing anything. . . . How about you? . . . Sure, do you have any plans for tomorrow?" So, we obviously will need to limit our cell-phone use to emergencies when we are around others, especially in restaurants. I am told that in theaters, during plays, musicals, and concerts, when a cell phone goes off, ushers politely approach the patron and say, "Please switch your cell phone to vibration mode, sir (or madam)." By the year 2005, no doubt we will be sending each other vibrations on cell phones as Valentine’s Day gifts.
Not too long ago, at the swearing-in of newly admitted attorneys, a cell phone went off on stage during the Chief Justice’s remarks. She took it well. I am sure that caller qualifies for advanced cell-phone war stories, having interrupted the Supreme Court without repercussions.
Developing a Court Policy
Now that we have experienced the pluses and minuses of cell phones, it is important that we begin to develop the policy for the courtroom. Here are my initial thoughts:
1. Cell phones are welcome. We want everyone to be relaxed and get his or her emergency messages. Judges get emergency messages brought up by their clerks, so why not lawyers, their clients, and jurors?
2. Each person in the courtroom will be limited to one cell-phone call per appearance, unless he or she can provide an affidavit that multiple calls were of an emergency nature or
necessary for handling a multidisciplinary practice.
3. On all pleadings, attorneys must list their attorney registration number, phone number, fax number, and cell-phone number. Attorneys without cell-phone numbers, however, also will be authorized because this comes under the Unbundling of Legal Services exclusion, allowing an attorney limited dealings with clients only on land phones.
4. Cell phones must be used to keep costs down. Cell phones will allow us to be in constant contact with our witnesses (instead of using staff), and to call back to the office to get that cite we forgot that the judge is now requesting.
5. During jury trials, when attorneys request sidebars, jurors will be allowed to use their cell phones for three minutes. This will have the positive effect of allowing the attorneys to talk louder during the sidebar, even though they don’t want jurors to overhear the argument. Cell phones will be provided at every jury seat, and all jurors will be allowed to be on the cell phones at the same time. Then jurors will not hold it against the court and the lawyers that their time is being wasted. This should cause everyone to be happier and more attentive during the trial.
6. Courts will be able to use the 911 tracking system explained above to call attorneys in near proximity to the courthouse for unscheduled hearings when other cases suddenly settle or trials are vacated. Thus, we will be able to use court time that opens up at the last minute more effectively.
7. Finally, we must start thinking about writing the jury instruction that will be given at the start of every trial relating to cell phones. Here is my first attempt:
Ladies and gentlemen of the jury, you are not to read newspapers or watch television if the stories reported are in any way connected to the issues or facts of this trial. During the trial, your use of cell phones must be courteous and limited to emergency calls only. Limit all calls to three minutes. Unlisted numbers for juror phones must be submitted to the court, which may be used to wake up a snoozing juror during a trial. No deliberations on cell phones are allowed. When the juror next to you receives a cell-phone call, please respect his or her privacy and lean slightly to the opposite direction. Please raise your hand if you feel that your need to concentrate on your cell-phone message would require the trial to be stopped momentarily. We know that most people drive and talk on the cell phone, so we will assume that you can listen to the trial and talk on the cell phone unless you tell us otherwise.
If a witness, while testifying, takes a cell-phone call from the attorney during the questioning, you as jurors have the absolute right to draw inferences from this practice. You are the final judges of the witnesses’ credibility and should take into account what questions are asked on the cell-phone call by the witness or the attorney, how long the call lasts, and whether or not, after completing the call, the witness changes the answer to the last question initially posed.
(If any federal judges read this column: I’m only kidding!)
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