Attorneys Struggle With Trial Technology
Xact Data Discovery interviewed Shannon Bales on May 13, 2020, who has served as the Manager of Litigation Support at Munger, Tolles, and Olson LLP, and as the Director of Forensic and Litigation Consulting at FTI, on its First Chair Podcast about the presentation of ESI at trial. Shannon is the author of The Trial Presentation Companion: A Step-By-Step Guide to Presenting Electronic Evidence in the Courtroom, a publication of the National Institute for Trial Advocacy. The discussion with Xact's Matt Verga, an attorney and electronic discovery expert, provides a great overview of the challenges of preparing an electronic presentation for a trial; supporting a trial team's needs during the trial; and presenting ESI to a judge and jury. Shannon helps to educate paralegals and lawyers become more efficient at providing trial support services. Shannon joined Mary Mack, David A. Greetham, and Kaylee Walstad of ACEDS for a training program they conducted for the Executive Office of the President of the United States at the White House. Here's a summary of the key points made by Shannon in the podcast:
Shannon often observes teams using technology poorly at trials. They could improve their performance greatly by taking their technical efforts more seriously.
Bureaucracies at law firms often make it difficult to get the right equipment. Hardware that is not commonly used by law firms may be needed. A laptop with a high-performance video card designed for gaming may be required. Shannon's frustration at being unable to justify his requests to IT departments by referring to industry wide standards led him to write his book.
More effort needs to be made at getting diverse forms of ESI and large numbers of videos ready for presentation after they have been produced. Trial teams often don't load trial exhibits into review databases, and will have trouble searching through the data or accessing it if it is only saved to a hard drive.
The David and Goliath Effect that has led larger firms to be reluctant to use superior technology against opposing parties with more limited resources is no longer particularly relevant. A study from Cornell University supports Shannon's belief that jurors will think that teams that don't use technology to present evidence will be wasting their time. Jurors want to see presentations that are well organized and done with some style. Technology is now used even in the smallest of cases.
Cloud-based tools may not be readily accessible at trial. Teams should have the data stored locally so files can easily be transferred around, and printed out with speed. There needs to be a local data strategy. Problems with bandwidth and security may hamper efforts to download files.
Teams should comply with the court's trial management order, which often specifies the format for exhibits and how they should be named and branded. Courts may reject exhibits which are prepared incorrectly, requiring teams to stay up and make adjustments at the last minute. Conversely, courts are increasingly likely to accept arguments that how the other side's exhibits are prepared is an impediment to efficiency and grant requests to order corrections.
You can challenge another team to refer to documents by exhibit number, and if they cannot do so the flow of their presentation will be disrupted.
Some courts have adopted evidence presentation obligations which admonish attorneys to test their equipment before the trial begins. A hot seat tech and a paralegal should be sent out ahead of time to learn the likes and dislikes of the court and the measurements of the courtroom. Courts will defer to the team that appears more credible.
Trial teams shoot themselves in the foot by over relying on outside service providers and getting cut-off from their home offices. Firms need to create standards for how their help desks can prioritize requests from trial teams, and provide any missing hardware quickly. Shannon has seen trial teams that can't get equipment from offices that are 20 minutes away, because a help desk person isn't allowed to leave.
Electronic discovery vendors should be included in trial preparation so they can provide the same services they did while the team was in the office working with cloud-based tools.
There is a trend to using larger support teams which include specialists. A single hot seat person can't support the presentation and graphics needs of 10-20 attorneys. There should be a second chair hot seat person who attends to overnight needs, and someone who focuses on graphics.
Graphics specialists should be involved early on in assisting to prepare opening presentations.
There may be a need for a data gatekeeper responsible for keeping an exhibit database updated.
Over the past 3 or 4 years, PDFs have become the format of choice for trial exhibits. However, trial presentation software will not be able to open very long files any quicker than other software.
Some trial teams use naming schemes which are too complicated. Shannon recommends a four digit exhibit number and a four-digit page number.
Most authentication issues will be resolved before trial. Document authenticity, as distinguished from the legal concept of authentication, refers to the state of the document as it was collected. Documents that have had their resolution or contrast adjusted may open counsel up to accusations of tampering. An attorney can explain the significance of a document while it is being enhanced on the fly by a trial tech.
Stay tuned for a summary of part 2 of Xact's discussion with Shannon Bales.