Simply put, electronic evidence is any evidence that comes in digital form rather than paper or tangible form. But that definition barely scratches the surface of the implications of electronic evidence as it can and will be used in a law practice.
This technology-themed issue of the Family Advocate covers a broad range of topics from blawgs to hiring technology experts. But a great deal of attention is paid to topics such as electronic discovery and electronic evidence. This is not by accident.

A few years ago, most family law practitioners would have laughed at the idea of processing or using electronic evidence. Now, with the pervasiveness of electronic business records, e-mail, financial records stored on home computers, and a wide range of Internet transactions, few would question the fact that there will be substantial use of electronic evidence in court proceedings in the future. In fact, we’ll see two types of electronic evidence. First will be records like those mentioned above that are created electronically and exist in digital format. But we also will see electronic evidence that might have originally come to the lawyer’s attention on paper, but will have been scanned and converted to electronic format to facilitate analysis of the information or display of these documents in the courtroom.

Accessibility & versatility

Most types of evidence can be converted to electronic format, and sometimes the converted evidence is much more valuable. Would you rather have hundreds of pages of detailed family financial information printed from a spreadsheet or the digital spreadsheet file itself? Although lawyers today may differ on the answer to this question, there can be no doubt that in the future most practicing lawyers will consider it a rhetorical question. Having this kind of information on paper only, without the ability to process and search it or to see the underlying formulas, is like being able to review only part of the evidence. With skilled use of a spreadsheet application such as Excel, one can quickly assess trends or changes in the parties’ income and assets. Concerned that this data may be a little hard for the finder of fact to understand or interpret? A few clicks will transform the data into a graph or colored chart.

No doubt reading these words will give many lawyers a slight case of heartburn. Some already embrace these changes brought on by advances in information technology. Others struggle to ignore them, typically by spending money on good staff and good technology resources for the staff. Other lawyers actively despise technology and decry its impact on their practices. These lawyers resist change at every turn. But even these lawyers now use e-mail and confess to frequenting a few favorite Web sites.

A learning curve

Dealing with electronic evidence internally within your office will be sort of like learning to use e-mail. You first heard about it as some new advance that others utilized. Then some lawyers who you knew were no more technology savvy than you are were talking about using it. Soon you decided you needed to learn about it. Then you got one of your children or a staff member to show you the basics, and it really wasn’t that complicated after all. Okay, you still don’t know everything there is to know about it and you pick up a few new things from time to time.

In-house use of electronic evidence will be something we can learn to accept and manage. Most family law practitioners are already able to deal with spreadsheet programs, either with training or via a trained staff person. If you are not one of these, understand that this is a required skill for every family law practitioner. And even though internal use of electronic evidence should not be so threatening, there is more to our picture of the future.

As we consider obtaining evidence through electronic discovery and forensic data recovery, the future is less clear and arguably less bright.

Battling litigators have managed to create some impressive discovery disputes when paper was the sole information “container.” But now there are potentially thousands of sources of digital data, from home computers to corporate data backup tapes, to mobile phone records, to long-haul truckers’ satellite-captured driving records, to security
surveillance cameras of businesses and apartment buildings.

To complicate matters, this archived data is often overwritten very quickly if no effort is made to preserve it. At this point, much of the data can be obtained or processed only with the aid of skilled technicians who will need to be compensated. Electronic discovery can quickly become prohibitively expensive. But no good lawyer will be able to disregard valuable evidence just because obtaining it is not easy.

Learning to procure and process electronic evidence is slowly becoming a staple of litigation, including family law litigation. Although many lawyers will be anxious about the retraining and rethinking that is required for this brave new world of the future courtroom, the reality is that the legal profession will have to adjust to new practices. Some changes will prove to be positive for lawyers. Having searchable digital copies of depositions has already been a great time saver, for example. But the need to review thousands of digital records brings with it the risk of increasing the costs of litigation with little benefit to the litigants. We’ve seen a few balances being struck on the cost front already. Some are discussed in this publication. More will follow.

Bad acts

Technology also allows people to do some bad acts. In “ Spy v. Spy”, Sharon Nelson and John Simek tell the story of a woman who lost custody of her children in part because of some horrifying e-mails she supposedly sent to her husband. She denied sending the e-mails, but it was, as we say in Oklahoma, a “swearing match.” A forensics exam of the ex-husband’s computer revealed the test message he had set up to “spoof” his ex-wife by inserting her address as the sender in e-mails that he was actually writing and sending to himself. After receiving evidence of the husband’s fraud on the court, the judge awarded custody to the mother.

Although at this point many of us may not have such a dramatic example of the power of computer forensics in our daily cases, requesting a forensic exam of a computer is increasingly common in family law cases. As the above example points out, there are cases in which you may find yourself needing the services of a computer forensics expert on very short notice. How would you locate such an expert and how would you judge whether this person is a reliable and trained individual or someone who was selling cars only a few months ago?

Then there are the strategic concerns of presenting evidence. Most family law cases across the country are not jury trials. But judges appreciate simplicity and clear presentations as well. You do not want to be the lawyer handing the judge stacks of paper while opposing counsel projects compelling images of important documents on an eight-foot-tall screen, highlighting paragraphs and zooming in on areas of significance.

In many ways, the transition to electronic evidence will be a “brave new world” for all of us. Significant training and preparation are required. But this will not be any more profound than many other changes that have impacted the legal profession generally and family law practitioners, in particular, over the last few decades. (Remember the days before Qualified Domestic Relations Orders, the UCCJEA, etc.) Stacks of paper in courtroom proceedings will go the way of the buggy whip and “trial by ambush.” Every litigator will carry a laptop or some future ultra-miniaturized descendant of today’s laptops.

Our touchstones

Yet all of these changes will not affect what we are at the core of our profession. Integrity and trustworthiness will still be our touchstones. The special relationship between attorney and client will continue to define us. Our duties to the client, the court, and the rule of law will survive and endure.

The law office will evolve. It will become a workplace that increasingly fosters information management technology skills. High-tech innovation may vie with precedent in importance. There will be challenges. But working with intelligent, highly-skilled, and hard-working people is something lawyers are already doing. Most of us would not want it any other way. FA

Jim Calloway is the director of the Oklahoma Bar Association’s Management Assistance Program, served as chair of ABA TECHSHOW® 2005, and is issue co-editor for this edition of Family Advocate.

Published in Family Advocate, Volume 28, No. 3, Winter 2006. © 2006 by the American Bar Association. Reproduced with permission. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.