Aim: Displaying ESI before audiences (at depositions, hearings, trials, etc.), especially in native & near-native forms, to elicit further information, validate existing facts or positions, or persuade an audience.
Goal: Develop facts, leverage technology, facilitate communication and persuade.
* Although represented as a linear workflow, moving from left to right, this process is often iterative. The feedback loops have been omitted from the diagram for graphic simplicity.
1. INTRODUCTION
The presentation of electronically shared information can be a challenge for attorneys and paralegals. In the past exhibits were presented in paper form and still are in many cases today. Technology has developed over the last decade making it easier to present exhibits in near-paper or “image” format. Due to the nature of electronically shared information and the advent of native and near native document productions, some cases now require the legal team to present exhibits in native format. The diagram and outline below provides guidelines for presenting electronically shared information at depositions, arbitrations or at trial. There is a great deal of commonality in presenting exhibits for any of these situations but where needed, special considerations for depositions, arbitration or trials have been included and designated as such.
2. IDENTIFY EXHIBITS (TRIAL & DEPOSITION)
Deposition and trial exhibits are identified from information produced to or from opposing counsel. Exhibits may be objects or information in paper, near-paper, near native or native format. The exhibits may be in boxes or organized electronically in an automated litigation support system. Automated litigation support systems allow the legal team to quickly and efficiently mark or tag the information identified as an exhibit. Often times attorneys will use an outline of the case elements as a basis for identifying exhibits. Exhibits are used to support or refute elements of the case. Outlines are sometimes prepared manually or an automated case outline program may be used. For a detailed discussion regarding legal analysis and admissibility, please see the Legal Analysis section in the section below
3. DEVELOP STRATEGY
3.1. GOALS & OBJECTIVES
The first item on the list is developing a strategy. Consider your goals and objectives for the presentation.
- Am I trying to persuade or inform?
- What story or themes am I trying to communicate?
- What facts am I demonstrating?
- What additional evidence is there?
- Do I need to establish credibility?
- Am I trying to provide context and education to increase understanding?
- What types of ESI do I have?
- What pieces of ESI achieves the goals and objectives?
- Preparation or processing – does it need to be treated?
3.2. LEGAL ANALYSIS
ADMISSIBLE EVIDENCE
Admissible evidence in a court of law is any testimonial, documentary, or tangible evidence that may be introduced to a fact finder–usually a judge or jury–in order to establish or to bolster a point put forth by a party to the proceeding. In order for evidence to be admissible, it must be relevant, without being prejudicial, and it must have some indicia of reliability.
For evidence to be relevant, it must tend to prove or disprove some fact that is at issue in the proceeding. However, such evidence will not be admissible if the utility of the evidence is outweighed by its tendency to cause the fact finder to disapprove of the party it is introduced against for some unrelated reason. Furthermore, certain public-policy considerations bar the admission of otherwise relevant evidence.
For evidence to be reliable enough to be admitted, the party proffering the evidence must be able to show that the source of the evidence makes it so. If the evidence is in the form of witness testimony, the party introducing the evidence must lay the groundwork for the credibility of the witness, and his knowledge of the things to which he attests. Hearsay is generally barred for its lack of reliability. If the evidence is documentary, the party proffering the evidence must be able to show that it is authentic and must be able to demonstrate the chain of custody from the original author to the present holder.
The trial judge performs a “gatekeeping” role in excluding unreliable testimony. The United States Supreme Court first addressed the reliability requirement for experts in the landmark case Daubert v. Merrell Dow Pharmaceuticals, Inc. 509 U.S. 579 (1993). The Court laid out four non-exclusive factors that trial courts may consider when evaluating scientific expert reliability: (1) whether scientific evidence has been tested and the methodology with which it has been tested; (2) whether the evidence has been subjected to peer review or publication; (3) whether a potential rate of error is known; and (4) whether the evidence is generally accepted in the scientific community. Id. at 592-94. Kumho Tire Co., Ltd. v. Carmichael later extended the Daubert analysis to include all expert testimony. 526 U.S. 137 (1999).
AUTHENTICATION
Authentication is the act of establishing or confirming something (or someone) as authentic. This might involve confirming the identity of a person, the origins of an artifact, or assuring that a computer program is a trusted one.
CHAIN OF CUSTODY
Chain of custody refers to the chronological documentation and/or paper trail showing the seizure, custody, control, transfer, analysis, and disposition of evidence, physical or electronic. Because evidence can be used in court to convict persons of crimes, it must be handled in a scrupulously careful manner to avoid later allegations of tampering or misconduct, which can compromise the case of the prosecution toward acquittal or become grounds for overturning a guilty verdict upon appeal. The idea behind recording the chain of custody is to establish that the alleged evidence is in fact related to the alleged crime – rather than, for example, having been planted fraudulently to make someone appear guilty.
Establishing chain of custody is especially important when the evidence consists of fungible goods. In practice, this most often applies to illegal drugs that have been seized by law enforcement personnel. In such cases, the defendant may disclaim any knowledge of possession of the controlled substance in question. Accordingly, the chain of custody documentation and testimony is presented by the prosecution to establish that the substance in evidence was in fact in the possession of the defendant.
An identifiable person must always have the physical custody of a piece of evidence. In practice, this means that a police officer or detective will take charge of a piece of evidence, document its collection, and hand it over to an evidence clerk for storage in a secure place. These transactions, and every succeeding transaction between the collection of the evidence and its appearance in court, should be completely documented chronologically in order to withstand legal challenges to the authenticity of the evidence. Documentation should include the conditions under which the evidence is gathered, the identity of all evidence handlers, duration of evidence custody, security conditions while handling or storing the evidence, and the manner in which evidence is transferred to subsequent custodians each time such a transfer occurs (along with the signatures of persons involved at each step).
CRIME SCENE RECONSTRUCTION
Crime scene reconstruction is the use of scientific methods, physical evidence, deductive reasoning, and their interrelationships to gain explicit knowledge of the series of events that may have led up to the crime and what exactly happened at a specific crime scene. It is a disciplined and principled approach towards objectively understanding a crime scene. Crime reconstruction helps interpret physical evidence. It is an aid to help formulate a hypothesis and arrive at a conclusion about a certain crime. Forensic specialists all come together with their different forms of evidence such as photos, sketches, and other useful things gathered from the crime scene to paint a vivid picture which makes it possible to retrace a crime that took place. Using evidence found at a proper crime scene you can reconstruct what happened and possibly find more clues.
When focusing on other types of forensics, there are three areas of importance in finding the answers and determining the components of a crime scene: (1) specific incident reconstruction, which deals with traffic accidents, bombings, homicides, and things of that nature; (2) event reconstruction, which analyzes connections, sequence, and identity; and the most important component, (3) physical evidence reconstruction, which focuses on firearms, blood, glass, and other objects that can be stripped for DNA.
DISCLOSURE
Disclosure means the giving out of information, either voluntarily or to be in compliance with legal regulations or workplace rules.
STIPULATION
Stipulation is an agreement made between opposing parties prior to a pending hearing or trial. For example, both parties might stipulate to certain facts, and therefore not have to argue those facts in court. After the stipulation is entered into, it is presented to the judge.
USE AS IMPEACHMENT OR WITNESS IMPEACHMENT
Use as Impeachment or Witness Impeachment in the law of evidence is the process of calling into question the credibility of an individual who is testifying in a trial. There are a number of ways that a witness may properly be impeached, and several ways that, although effective, are prohibited except under special circumstances.
3.3. CLIENT AND WITNESS INTERVIEWS AND MEETINGS
EXPERTS
Experts are the trial-teamed paid experts to explain the issues to the jury and provide credibility for the side they are hired. Meet with expert as soon after the expert reports are submitted. Many experts have already-created decks of slides which need to be customized to look like the rest of the presentation.
DEPOSITIONS
Depositions are part of the discovery process where person who may have some information to add to a case is interrogated (and usually videotaped). This record can be used at trial as testimony in place of the deponent being questions on the witness stand. In advance of the deposition, make sure law firm knows appropriate formats to ask for when ordering materials from a deposition taping. Gather Mpeg1 and sync files from the court reporting companies as soon as the deposition is complete. Quality control for accuracy. Once a deposition is being edited the night before trial, it will be too late to request an additional copy if the one you have is corrupt. Make particularly sure that you check any deposition video taken outside of the United States as the format (non-NTSC) could prove to be an issue.
HEARINGS AND MOTIONS
Hearings and Motions are pre-trial procedures with the judge where preliminary issues are ruled upon and the process and schedule for trial is set out.
It is important to request transcripts from all hearings and motions so a complete database is maintained for the matter. This is a great opportunity to visit the courtroom to see if technology is already installed in the courtroom, or if there are going to be particular challenges in bringing in equipment for use during trial.
3.4. COURTROOMS/ARBITRATION ROOMS
COURTROOM LAYOUT/SIGHTLINES
It is important to get into a courtroom before trial and survey it. This may be the first time that courtroom (or courthouse) has allowed computers and projectors to be used. Judges who are skeptical will need a report of equipment to bring in as well as a diagram to show suggested placement.
BASIC CONFIGURATIONS
At a minimum, the courtroom set-up will contain flat-panel monitors for the counsel tables, the witness and the judge, as well as a large monitor or screen for the jury. There should be a document presenter and a VGA switcher for switching from one VGA signal to the other.
ADVANCED CONFIGURATIONS
In addition to the Basic configuration, when depositions and multiple defendants can quickly complicate a set-up.
KILL SWITCHES
In some courtrooms, the clerk, court reporter or even the judge can have the master ‘kill switch’ in the courtroom. This allows that person to stop the image from projecting to the jury.
COURT REPORTERS
Will there be real-time reporting? Do we need to find our own reporters, or does the judge have a preferred reporter?
POWER AND EQUIPMENT
Particularly in older courtrooms, an electrician should be brought in ahead of time to ensure proper distribution throughout circuits in the courtroom so none is overloaded. Projectors take up a massive amount of power, as do printers. It is advisable that if the trial team wants a printer in the courthouse, it be placed in a witness room to make sure it’s on a different circuit.
CABLING AND GAFFERS TAPE
Any certified vendor of courtroom equipment should bring extra rolls of gaffers tape to make sure there is not an unsafe environment of exposed cables in the courtroom. Every inch of cabling needs to be taped down and the cables need to be against the wall or under the tables so no one risks tripping over it.
INTERNET ACCESS
Some courtrooms are being renovated with internet access. Most, however, do not have access and have trouble getting services from air cards. There are some vendors which will install internet connectivity, if the attorneys can be convinced that it will be a benefit.
CELLPHONE ACCESS AND RESTRICTIONS
Some courthouse bans phones/PDAs from all, some will allow attorneys to bring them in. Watch out for ones with cameras in them as those are especially frowned upon. Some will allow a rental locker, others just state you can’t bring them in and you’re left to fend for yourself and have to find somewhere to store it.
LOADING DOCKS AND ELEVATOR
Many courthouses have very specific rules for bringing in equipment so it can be properly scanned. Make sure to give yourself ample time to get through the process as one will run into different rules at each courthouse.
APPROVAL OF CLERK AND JUDGE
All the planning is for naught if the court will not allow the equipment in the courthouse. One should make sure they have all their ducks in a row before contacting the court, as you want to get all your questions answered at one time. It is important to know when it’s okay to set-up equipment. Can the equipment be left in that configuration the entire duration of the trial, does anything have to be moved for morning status calls, etc.
COST-SHARING WITH OPPOSING COUNSEL
Most courts will not put up with opposing sides who will not agree to share equipment, particularly projectors and screens which take up a great deal of real estate in the courtroom. Impress this upon your attorneys if it looks like there is an issue. Be proactive about retaining a reliable vendor yourself as this is a great area to be a control freak.
APPEAL
It is very important to archive all data from the trial for the appeals process. Most law firms have a paralegal noting each document which is admitted, but video depositions is an area where the official record varies widely. Some court reporters will transcribe the text of the video as it plays, some transcripts will simply note: then the video played. Because of this, there often isn’t an official record of what was played and therefore the law firms depend upon our database to know what was ultimately played.
4. SCHEDULE & COORDINATE
5. PREPARE EXHIBITS
ESI CONVERSION/PAPER TO ELECTRONIC
SCANNING OR IMAGING
Everything scanned from hard copy should be sent to a high-speed vendor. The better condition it is received, the faster it will be processed. No staples, please. Single-sided, 8.5 x 11 is preferable. Color should be flagged. For black and white, the output should be Group IV, black and white single page Tiff images. Color should be in jpeg format.
ELMO
The ELMO is a consumer name for a document camera. The ELMO used to be the state of the art in courtrooms for showing documents. Now it is primarily used as a back-up to the computerized system. If a computer resets itself, or an attorney calls up a document which is not in the system, the fastest way to get it on the screen it by putting it on the ELMO.
NEAR PAPER
TIFF and PDF: Single page tiff images is the standard format for more trial presentation systems.
NATIVE
Native files should be available should one need to reference it, specifically something like a spreadsheet where it can be difficult to separate it into a viewable form.
NEAR NATIVE
HTML rendering of an E-Mail.
AUDIO
While most multimedia is visual, once in a while there are solely audio evidence to be presented (for instance, phone calls or voice-mails). It is recommended that all audio be converted to a standardized format which can be registered in the trial presentation system. During trial, 99% of the media should be played out of one-system and should not have to switch to another software.
VIDEO
Like audio files, video files should be registered in a trial presentation system so one can bring it up in a random access fashion. When converting, keep in mind that the video needs to be in a high enough quality to look good on a large projection screen in the courtroom.
IMAGES
Standard viewers for law firms have historically been iPro and Opticon with Concordance and Summation.
PRESENTATION SOFTWARE
There are a number of off-the-shelf presentation softwares which can bring up graphics, documents and video at random. Each element is assigned a shortcut so it can be brought up in as few keystrokes as possible. As databases can get quite large (particularly with the amount of e-discovery data), it is always advisable to have a back-up computer in case the first one has a hiccup.
ANIMATIONS AND DIAGRAMS/3D
Unless a standalone component which will not change or has threat of being objected to, a 3D animation is risky because it cannot be modified easily or quickly. Unlike 2D animation, 3D can rarely be modified day-of to be presented in court.
POWERPOINT
PowerPoint is great for linear presentations, where the attorney wants to click through the slides with a wireless clicker without having to ask the ‘hot seat’ person to do it. Ideally, PPT is used for opening and closing statements, as well as direct examinations, particularly expert witness testimony. Choosing a template is a good idea before trial so all presentations/witnesses have a similar thread.
KEYNOTE
Keynote is the slide presentation software for Macintosh. Similar to PowerPoint, just on a different operating system.
OVERSIZED PRINTING
Oversized printing is still used in courtrooms to vary the media which is presented to the jury. Often, attorneys will want to place a timeline or other significant slide on an oversized board so the jury can glance at it throughout the trial.
DATA CHARTS AND TABLES
Native files should never be projected in the courtroom, specifically spreadsheets. It gets too complicated and confusing for an attorney (or witness) to navigate through such a file on the screen. It can be very disorienting. Creating a graphic with the pertinent information from file is preferable, but it is a good practice to have the native available should it need to be given to a witness or the court for credibility reasons.
INTERNET SOURCES
- Archive.org
- Screen snap
- HTML/XML
- Audio/video capture
- Open source image and animation archives
DATABASES – ORACLE, ACCESS
6. TESTING & DELIVERY
KNOW THE LIMITS OF TECHNOLOGY
As Henry Ford supposedly once said, knowledge can be found on any street corner. It is the manner in which you put facts together that is the key to success. Or, as Judge Newfort stated during the Computer Forensic Reenactment at the Utah Bar Fall Forum Mock Trial, an attorney doesn’t need to know all the technology to be used in a case; he only needs to know that he has the right experts.
KNOW YOUR OWN LIMITS
The expert witness role is a demanding one. It requires mastery of the subject area as well as the ability to communicate actuarial matters clearly and succinctly to a non–actuarial audience. As an expert witness, you must think on your feet, often under adversarial questioning. You must also able to be objective and think outside the box when called upon to address a “what if” question as an expert. Given these demands and the range of skills required to meet them, not everyone can or should act as an expert witness. However, for the right person, the role of expert witness is both challenging and rewarding. In particular, this type of work gives you the opportunity to work closely with members of the legal profession, exposing you to learning opportunities you might not encounter elsewhere.
CONSIDER COST-BENEFITS
The old adage that “you get what you pay for” is true in the world of e-discovery, but doing your homework upfront can pay dividends in the long run. With good planning and foresight, you will see rewards at the end of your case.
A great team is only as good as their knowledge of the subject matter. In some instances you can bring in the highly specialized people only when needed, but often you will be more successful if they are part of the team from the start of the case. A small investment at the beginning can have great dividends at the end.
KNOW THE FINE POINTS OF REHEARSAL AND IMPEACHMENT
In the law of evidence, rehearsal is the process of calling into question the credibility of an individual who is testifying in a trial. There are specific ways to properly impeach a witness, and several methods of impeachment that, although effective, are prohibited except under special circumstances.
DO AN AUDIT ON HARDWARE AND EQUIPMENT
Make sure you have all you equipment working a few days before your presentation of evidence.
HAVE A PLAN FOR BACKUP AND REDUNDANCY
From the very beginning of the e-discovery process to the time you present your case, it is critical to have well defined data backup and redundancy policies and processes in effect.
As Murphy’s Law states, you can have the best case in the world, with hundreds of hours invested, only to find that you didn’t back up some key information and as a result lose the case.
MEASURE AGAINST OBJECTIVES
Legal objectives should be in place with expectations about meeting them clearly communicated. It is important to select those financial measures that are most relevant to your particular business when identifying what will be measured. Once those are identified, it is very important to establish objectives (targets) for each measure and to track actual performance against those objectives. In most cases objectives will increase over time as incremental improvement in performance is sought.
RECOGNIZE THE CSI EFFECT
The CSI effect has been shown to skew public perceptions of “real-world” forensic science as well as the behavior of criminal justice system professionals. Also referred to as the “CSI syndrome,” the CSI effect refers to unrealistic expectations of crime victims and jury members, brought about by the “dramatic license” taken by the writers of forensic science television, who glamorize the field, overstate the accuracy of forensic techniques, and exaggerate the abilities of forensic science.
ASK THE AUDIENCE
Many sponsors are inhibited from testing materials and evaluating their project because they are not familiar with the methods available for these purposes. This leads them to skip the testing step during development, or to take short-cuts to assess the impact of a project. However, while some effort is usually better than none, a poorly conceived approach to testing or evaluation can be worse than nothing if it leads to a wrong conclusion or misses important effects.
Below is an overview of common techniques that can be used for both testing and evaluation, depending on how you apply them. These methods can be grouped into two categories:
- Qualitative Methods – These include one-on-one interviews and focus groups.
- Quantitative Methods – These include surveys or other sources of data, such as enrollment or administrative records.
Each of these methods can be used for different purposes at different stages of your project. The best method for you will depend on the nature of the materials, the intended audience, the questions you are hoping to answer and the amount of time and resources available. But there is no formula and no perfect method; they all have their pluses and minuses.
The bottom line: Getting input is more important than the method you use. Choose whatever method or combination of methods suits your project and is most practical. A combination of methods is especially useful because it allows you to overcome the limitations of a single technique. For example, if participants in focus groups raise some concerns about your materials, you can use one-on-one interviews to probe into those concerns in greater detail
7. PRESENT
If the entire process is considered, ‘From script to screen’…then presentation is the screen in the courtroom. Simply stated, if the material is not displayed properly in front of the jury, then all the effort is for naught.
8. ACQUIRE & STORE
Develop guidelines for archive and maintaining accessibility of case materials post-verdict. The law firm or corporation may already have guidelines for off-site storage, but this needs to be revisited for each case. If the case is definitely being appealed, then material should stay online and accessible and not be sent to an off-site storage facility. Cloud computing options are a great way to keep case materials dormant (but accessible) and allows the law firm to not keep adding servers, but to rent just the hosting space.