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Is It Fair Game to Use Your Smartphone Against Opposing Counsel?

By William Vogeler, Esq. | Last updated on

Basically, it was a high tech way of spying.

According to reports, the Red Sox baseball team was stealing hand signs by watching video replays of the game off the field and then texting the information live to a staffer's smart watch in the dugout. Cheating or gaming?

Not that we should ever think like that, but couldn't an attorney use similar technology to outplay opposing counsel in the courtroom?

Electronic Devices

Courts generally limit lawyers' use of electronic devices in the courtroom, i.e. no cell phone calls but yes laptops or tablets for research. Absolutely no photos, however, especially for those attorneys who post courtroom photos on Facebook.

But what about texting information to a trial attorney's smart watch, like cues from a staffer, jury consultant or other assistant strategically placed inside or outside the courtroom. Is there an app for that, or at least a rule?

"All electronic devices including but not limited to cellular phones, pagers, laptop computers and personal digital assistants (PDAs), must be turned off at all times inside the courtroom unless permission is obtained from the presiding judge," says a U.S. District Court in a rule that could be a model in most courts.

So "off" means silent, right?

Courtroom Eavesdropping

Whether you put your cell phone on silent or turn it off, it's flirting with disaster to bend electronic device rules -- like that guy who doesn't turn off his laptop when the captains says so.

Only a judge can do more than clip your wings when you violate rules. A courtroom security officer learned the hard way when he texted sensitive information to a lawyer on a case.

Sgt. Joel Eldridge apparently thought he was helping the prosecutor when he sent him a photo of the defense attorney's notes in the courtroom. Eldridge was promptly placed on administrative leave.

And that, as they say, is the ballgame.

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