GPSolo Magazine - June 2004
High-Tech from Day One
Do you ever find yourself vowing, “Next trial, I’m going to do things differently?” Are electronic discovery, paperless case management, and digital presentation something you’re saving for “the big case” down the road? If so, tempus fugit ergo carpe diem ; or, as they say in that commercial, “Just do it!”
Let’s dispel a few misconceptions and common anxieties about going high-tech in your trial preparation.
• I need to be a rocket scientist. Heck no! Anyone who is reasonably comfortable using e-mail and surfing the Internet has the requisite computer savvy to take advantage of digital trial tools and online discovery resources. Will you do everything right the first time? Probably not. Will you be more effective this trial than last? Almost certainly.
• I’d have to buy new and expensive equipment. To paraphrase Henry David Thoreau, “Beware of all enterprises that require new computers.” Unless you are using six-year-old systems, chances are the hardware and software you currently own have enough horsepower to get you on the high-tech bandwagon (and if your systems are long in the tooth, prices for new technology have never been lower). There is no better time to start than now, using what you’ve got.
• The way I do things doesn’t lend itself to technology. Nonsense! If the path you take to higher tech trials means you’ve got to abandon what you already know, it’s the wrong path. Let tech tools simplify and amplify the way you do things. Start slowly. Introduce new techniques incrementally as your comfort level grows, and keep at it, building on your progress.
• Juries think high-tech stuff is too slick. You’ll only hear this from those who have never used tech tools. Unless your jurors have been living under a rock, they are using computers, too. They also watch the same TV programs and movies. Their expectations are forged by a barrage of visually rich content from every medium and by trials, real and fictional, on TV and the big screen. More importantly, they don’t come to court happy to be bored or see their time wasted. If you want their attention and need their retention, engage their senses.
The explosion of electronic evidence and growing sophistication of jurors means you’ve got to try. No zealous advocate cedes the technology high ground to the other side without a fight. The good news is you can do this stuff. It’s easier than you think and it might be—dare I say?—fun.
There are a hundred ways to be a more effective, organized, and persuasive advocate using technology, but let’s start by pursuing four goals:
1. Use technology to bolster and grow the visual component of your case.
2. Avoid paper where it slows you down or is less effective.
3. Access online resources to secure better intelligence.
4. Pursue electronic discovery aggressively, tactically, and with finesse.
Entire books have been written about each of these goals (see the sidebar “Recommended Reading” on page 17), but you can get going using web resources alone.
Visual Persuasion from Day One
The Internet was around for years before it leapt into the public consciousness, but hardly anyone paid attention to the web until it acquired a new dimension: pictures . We are wired for sight and weaned on “Show and Tell,” not just “Tell.” Arguments end on the assertion, “I saw it with my own eyes.” Our ability to retain information is proven to be 650 percent better when we both see and hear information, compared to acquiring it by ear alone. Visual persuasion is powerful, and technology makes it easy.
Going high-tech for visual persuasion requires that you get in the habit of asking yourself, from day one and at every step along the way, “How do I depict that?” It also requires having a still camera at the ready—a digital camera is easier, but a film camera and scanner will do—and not being shy about photographing people, places, and things in the case. In an injury case, consider digital video or photographs of the scene, witness statements, injuries, vehicles, buildings, signs, debris, even bumper stickers.
What you’re seeking is a visual “anchor” for every idea you want the jury to accept and retain. These images, like hieroglyphics or icons on a computer’s desktop, serve as visual shorthand for the testimonial and documentary evidence. The web can serve up satellite imagery and maps to anchor locale. Make it your practice to videotape every deposition; if budgetary constraints make that impossible, don’t leave without snapping a few photos of the deponent. Using video capture devices that cost between $50 and $100, it’s simple to convert analog video from VHS tapes to digital clips you can simply drag and drop into a PowerPoint presentation, edit on your PC, or digitally project from your computer. If you, your staff, or your court reporting service synchronize video time codes to the deposition transcript, cross-examining a witness can be almost as simple as highlighting the inconsistent statement and clicking “play.”
Imaging technology has never been more powerful, accessible, or affordable than it is today. Megapixel digital still cameras have fallen in price below $200 and afford direct-to-digital convenience. They’re practically giving away analog video cameras, and a full-page color flatbed scanner can be had for as little as $50, enabling you to manipulate, enhance, and resize images using your computer. Even devices that allow you to burn your own DVDs have slipped below $100. DVDs, with their support for content menus and hours of high-quality video, are fast becoming the perfect way to store and share graphics-rich PowerPoints and digital video.
PowerPoint. Trial presentation suites such as Trial Director and Sanction are impressive tools, but you can perform amazing feats of persuasion using an application you might already own: Microsoft’s PowerPoint. Most users barely scratch the surface of PowerPoint’s capabilities, and some err at the outset trying to use PowerPoint’s inelegant templates to structure a presentation. You can benefit from PowerPoint most easily by forgetting any way you’ve ever seen it used and simply regarding it—at first—as a way to organize, access, present, and enhance visual evidence.
It’s a mistake to wait until the eve of trial to begin using a presentation program. Instead, flex your persuasion muscles throughout the process—when interviewing witnesses, working with experts, and during discovery. From day one, begin a PowerPoint presentation consisting of nothing more than a white background with black type, or vice versa. Then, start inserting your visual evidence, client photos, scene video, maps, graphs, scans of key documents, bullet points, jury issues, and the like, each on a single slide. I like to scan in the covers and relevant pages of codes or standards my opponent violated, just to make those obligations “real” to the jury. Don’t concern yourself with appearance or order at first—and certainly waste no time on bells and whistles like animated titling or sounds. Just get every visual you might use into the presentation, resizing images for effective viewing. All you want at this stage is a vessel to hold your visual anchors. As new visuals materialize, insert them into the presentation. Don’t forget to periodically back up your work. Don’t forget sound, either. Voice mail, recorded statements, and 911 calls all can be dropped into PowerPoint, so engage as many senses as possible.
Once your visual evidence and demonstratives are in PowerPoint, you have an easy mechanism to get to them. Though most think of PowerPoint as a linear presentation tool, in fact the program supports direct access to any slide (simply type the slide number, then the Enter key), and it hyperlinks from any object in any slide to any other slide, file, or external application. You should find yourself returning to your PowerPoint presentation frequently as the case develops—to show a photo to a witness, a medical illustration to a doctor, or perhaps a deposition video clip to the court during a motion hearing. Along the way, you’ll add titles, labels, highlighting, and animation, and you’ll also tweak the order of presentation, keeping what works and dropping what doesn’t. The PowerPoint presentation evolves with the case, and a polished presentation emerges gradually as your skills improve.
Video. If a picture is worth a thousand words, then video must be worth 24,000 words per second. It’s the rare piece of video that doesn’t need editing before presentation to a jury, and almost any video deposition is more effective when it can be distilled to a 15- to 30-minute excerpt. Once upon a time I had to hire a video editor or manage a crude edit myself with two VCRs; video production was the domain of those with five-figure production budgets. Today, computers, digital camcorders, video capture devices, and video editing software have made video editing and the ability to add broadcast-quality effects cheap and easy. Any lawyer in any case can produce impressive results for peanuts.
Full-featured video editing programs such as Microsoft’s Windows Movie maker can be downloaded for free, and many excellent editing suites cost less than $100. Video editing software breathes life into static images, as well. If you scan the still photos and drawings in your case, you can use the pans, fades, and transitions of a video editing program to inject a dynamic element that works well in alternative dispute resolution and argument. Adding an evocative song in the background works wonders for touching hearts in mediation or in final argument.
Effective Use of Courtroom Technology: A Lawyer’s Guide to Pretrial and Trial, D. Siemer, F. Rothschild, A. Bocchino, and D. Beskind (NITA 2002).
PowerPoint 2002 for Litigators, Deanne C. Siemer and Frank D. Rothschild (NITA 2002).
Persuasive Computer Presentations: The Essential Guide for Lawyers, John H. Goodhue and Ann E. Brenden (American Bar Association 2001).
Case Management and Paperless Office
Computerized Case Management Systems: Choosing and Implementing the Right Software for You, Andrew Z. Adkins (American Bar Association 2002).
The Myth of the Paperless Office, Abigail J. Sellen and Richard H. R. Harper (MIT Press 2003).
Lawyer’s Guide to Fact Finding on the Internet, Carole A. Levitt and Mark E. Rosch (American Bar Association 2004).
Electronic Discovery and Evidence, Michael R. Arkfeld (Law Partner Publishing 2003).
Electronic Evidence and Discovery: What Every Lawyer Should Know, Michele C. S. Lange and Kristin M. Nimsger (American Bar Association 2004).
Essentials of Electronic Discovery—Finding and Using Cyber Evidence, Joan E. Feldman (Glasser LegalWorks 2003).
Taming the Paper Tiger from Day One
Do you seem to spend nearly as much time looking for file materials as you do using them? Lawyers are experts at using technology to generate an ever-increasing volume of documents, but we’ve lagged behind in our use of technology to manage the documents we create. Electronic mail usage far outstrips postal mail. Ninety-five percent of all business documents are born electronically. Two-thirds of documents created electronically are never printed. So, why are we still drowning in a sea of paper?
One reason lawyers haven’t gone paperless (or close to it) is that we weren’t content to make the leap gradually. Digitizing an existing docket of case files is an enormous and costly undertaking. Instead, why not start small, in a handful of new cases, from day one. When the client comes in with paperwork, scan it from the very start. Don’t worry about formats or management systems at first; just get the content into digital format. The $299 Adobe Acrobat application (not to be confused with the free Acrobat Reader software) scans paper directly into Adobe PDF format and even “prints” your documents straight to PDF. Adobe Acrobat supports free optical character recognition of smaller documents (e.g., 50 pages or less), but larger documents will require buying additional services or software. Scan everything as it comes in. Develop a simple, rational naming convention for your files, incorporating a matter name or number along with the creation date of the document and a unique identifier. Beginning the file name with the date using the YYMMDD format is an easy way to chronologically order your documents, and it simplifies printing index pages for the paper counterparts of your pleadings and discovery files. Yes, you can still maintain a paper file, but you’ll never use it if you set up your virtual file correctly.
Take advantage of the organizational features built into the operating system to add order to your paperless case as it grows. It’s astounding how many users lump every document in their My Documents folder! Computer users have been free of the tyrannical 8.3 file name structure for years, so use long file names—up to 256 characters long in Windows XP—to be as descriptive as you’d like, and employ folders, views, and shortcuts to best effect.
As your paperless file system grows, you may want to manage it with more powerful tools than the operating system alone affords. There are a host of powerful and inexpensive programs on the market capable of getting you to the information you seek at lightning speeds. Off-the-shelf applications such as askSam or dtSearch support powerful searching, indexing, and reporting functions for less than $200.
If you aren’t already getting an ASCII disk containing the full text of every deposition in your cases, start doing so. Even if your search technique consists of no more than opening the ASCII file in your word processor program, you’re faster than paper. Loading the full text of all the depositions into one of the search programs mentioned above is far better still.
A paperless (or simply a less paper) system will save you hours of wasted time and offers the added benefit of extreme portability. Thanks to recordable DVDs and massive portable hard drives, you really can take it with you. The goal is to eliminate the bits-to-paper-to-bits work flow. Don’t give up paper, but confine it to output only. Documents born digitally only go to paper when it makes your job easier. If you’ve ever tried to read a long document on a computer screen, you know that going utterly paperless works better in theory than practice. My rule of thumb is, if a document is large enough that a standard staple wouldn’t work on the printout, it’s too long to read on screen.
Cybersleuthing from Day One
Has the most damaging witness in your case been your own client, perhaps arising from a vulnerability the client didn’t reveal? Before or right after the first appointment, use online resources to learn as much as you can about your client’s other claims, criminal record, financial status, business dealings, and discussion group participation. Secure a credit record release authorization and buy the report.
The Internet and for-fee information databases allow us, in minutes from our desks, to learn more about witnesses, counsel, companies, products, jurors, judges, and experts than we can glean from months of discovery. Using the web, it’s a simple matter to track down former employees, network with lawyers in similar cases, create demonstrative aids, identify other claims and suits, locate assets, and even gauge political views based on contribution and voter registration records.
Free resources such as www.searchsystems.net are a gateway to thousands of revealing public records, and dirt-cheap databases such as www.accurint.com afford lawyers unprecedented access to personal and financial data. It costs nothing to set up a news alert at Google.com to e-mail you each time your client or opponent is mentioned in any of hundreds of news sources. For trial lawyers, the power to search and review ten million pages of expert testimony at www.trialsmith.com seems almost beyond belief.
Data found online can be unreliable, and certainly it shouldn’t be used in court or at deposition without verifying its accuracy, but once you develop the knack for cybersleuthing, you’ll find that it’s invaluable as preparation for cross-examination, especially for expert witnesses. For an extensive list of cybersleuthing links and other resources, visit my website, www.cybersleuthing.com.
Electronic Discovery from Day One
Ninety-five percent of all business documents are born digitally, and most are never printed. The average businessperson receives over 50 e-mails daily , and few of those messages wind up on paper. Records that impact our lives aren’t always discrete compilations but may live fleetingly onscreen, compiled in response to database queries. If your discovery focus still centers on paper, you may be missing the evidence that makes your case. Winning with electronic discovery demands more than just adding the phrase “electronic data compilations” to your definition of document, and there’s no “form” set of discovery requests to serve as a shortcut. Each case is different and requires unique strategies.
Electronic data is at once fragile and tenacious. Failing to act quickly and decisively to force preservation from day one allows the digital smoking guns in your case to simply disappear forever. The duty to preserve electronic evidence doesn’t hinge upon receipt of a preservation letter, but a well-crafted notice specifically identifying media and content to be protected and detailing actions that cause spoliation of evidence makes inadvertent destruction less likely and raises the stakes for culpable behavior.
E-discovery has enormous tactical value when aggressively pursued to impose broad preservation duties, coupled with narrowly focused requests for production. Forget the “any-and-all” requests so typical of paper discovery requests. With computer data, it’s harder for an opponent to meet a series of highly specific requests that demand careful assessment of large volumes of data than to simply ignore or move to quash a scattershot demand no court would sustain. Specificity is warranted for other reasons. Don’t assume that your opponent understands computer systems well enough to appreciate where or how to find all discoverable electronic evidence without specifics. Plus, the narrower the request, the greater the likelihood it will be enforced and won’t serve as grounds for a motion to shift costs.
It’s hard to win with e-discovery if you’ve no idea how and where your opponent stores electronic records. Use interrogatories and Rule 30(b)(6) depositions from day one to gather intelligence about the other side’s systems and procedures. What are the backup procedures and rotation schedules? Is there a document retention policy? How is e-mail traffic or file deletion logged? Who works from home or uses a laptop? Enlist an electronic discovery consultant or former member of your opponent’s IT staff to help you target your inquiry, and don’t forget computer forensics. Computers keep much of what people believe is deleted and closely track users’ activity without their knowledge. In the right situation, a computer forensic analysis can make your case.
Confer with opposing counsel and seek the court’s assistance with e-discovery efforts from day one. A temporary restraining order may be necessary to curtail destruction of evidence in the ordinary course of business or secure forensically sound duplicates of key players’ hard drives, thereby ensuring that the opportunity to access electronic evidence is not lost to the passage of time . . . or to shenanigans. Early appointment of an e-discovery special master helps balance the rights of the party seeking e-discovery against the producing party’s need to safeguard privileged, confidential, or proprietary data.
Be sure to specify the form in which the data should be produced. If you’re set up to handle it, obtaining data in its native format is preferable because it permits automated searches and preserves metadata—data about data intrinsic to every computer record. Unless you prefer it, a producing party shouldn’t be permitted to increase your workload and costs by converting discoverable information from its native format—the way it’s used in the ordinary course of business—to unwieldy image formats or, worse, to paper printouts, stripped of metadata.
Remember, electronic discovery is more than just e-mail. Consider the wealth of evidence that resides in personal digital assistants, voice mail systems, cell phones, and even automobiles. Modern digital copiers have hard drives that store scans of copied documents. Fax machines have memories, too. Did you know that many vehicles currently on the road digitally store speed and braking activity for five seconds prior to air bag deployment? Imagine how that evidence might impact a disputed red light case. The digital smoking gun that makes your case may soon be downloaded from under the dash!
Just Do It
When you were 16 or so, you devoted yourself to learning to operate a powerful machine in a complex environment. You studied. You took lessons. You practiced. Perhaps you even blundered a time or two, but ultimately you made it. You passed the test, and you had your driver’s license. The skills acquired in learning to drive a car serve you every day.
Computers are as much a part of modern life as the automobile, yet few have devoted themselves to mastering their computers with the same dedication and enthusiasm as the automobile. We aren’t 16 anymore but, at any age, learning to “drive” your computer is a skill that will serve you every day.
You don’t have to implement perfect high-tech systems. The judicious use of technology from day one improves any case, not just the big or complicated ones, but you don’t have to use technology in every case to reap its benefits. Each time you implement a new technology, it gets easier. The greatest impediment to success isn’t cost or complexity. It’s intimidation. Just do it.
Craig Ball is a trial lawyer, consulting technologist, and certified computer forensic examiner based in Montgomery, Texas. He can be contacted at firstname.lastname@example.org.