Daily Journal Article: "Ready or Not", By Daniel R. Miller and Ted Brooks

PowerPoint on Trial, By Ted Brooks
Document Management: The Never Ending Debate, By Matt Simmons
To hire or not to hire a legal technology consultant? By Ted Brooks
"Courtroom Technology - A Small Price For Victory", By Daniel R. Miller
Document Management (in preparation for Trial), By Ted Brooks

PowerPoint www.microsoft.com

Trial Director www.indatacorp.com

Sanction www.verdictsystems.com

Trial Pro www.trialpro.com

Visionary www.visionaryinfo.com

Snag-It www.techsmith.com

PowerPoint offers many features and possibilities to the power-user. If you are not a power-user and experienced visual communicator, and you are preparing a trial presentation for your client, you should consider utilizing in-house litigation support services, hiring someone, or contracting with a vendor, in order that you may clearly communicate, in a visual format, to a jury having little or no knowledge of your issues. PowerPoint is often the tool of choice for creating and presenting demonstratives, including timelines, charts, and the like. It is not designed as a trial presentation package. Although often used from within or together with a trial document presentation database, it does not have the fortitude or functionality necessary to offer a complete trial presentation alone.
PowerPoint power-user tip #1: You may produce a graphics file, such as a jpeg, from a PowerPoint presentation by using the "Save As" option, and then selecting a graphics file format. For a higher quality image, consider using a tool like "Snag-It".

These are the tools you will need in court. Each has its own merits and faults, and your selection should be based upon your familiarity with databases, software experience, graphics/presentation experience, and organizational skills (with respect to large quantities of several different file types). I will not offer comparisons- you will have to run the demos yourself. These tools will enable you to go far beyond the slide-show presentation (or worse yet, the dreaded "paper and exhibit-binders trial"), offering a very efficient method of storing, organizing, and presenting documents and videotaped depositions. They will also enable you to quickly perform electronic highlighting, zooming, and several other operations, which can be then displayed, or even saved as a graphics file, which could then be produced as a poster blow-up. Referring back to organizational capabilities, these applications can create barcodes, which can be set up in the likely order of presentation, but can easily be randomly accessed, breaking away from the linear structure of PowerPoint.
PowerPoint power-user tip #2: You may select any PowerPoint slide randomly, during a presentation, by simply typing in the number of the slide, then hitting the "Enter" key.

Notes: Up to 85% of visual evidence is retained by a juror. No other format comes close. It has been said, that to offer the client anything less than the highest level of technology available, is to risk being accused of malpractice.

Back to the top

Document Management: The Never Ending Debate, By Matt Simmons

When I first decided to get into the Vendor side of the Legal Industry it was on the simple advice of a close friend. His words of wisdom were as follows: "Medicine & Law are the only two industries that will forever remain recession proof." Since I passed out while dissecting a frog in my 8th Grade science class, it should be obvious which path I chose to pursue!

I began my career advising lawyers of all shapes & sizes on the benefits that automation could have in their firm. Whether it is Time & Expense Billing, Document Management or Workflow Processes, the need to streamline is in the now, not the tomorrow. While some of my prospective clients passionately bought into this "electronic" school of thought, others simply limped on down the road of "Big Chief Tablets" and "Scrap Paper Work flows." To say the least, it was and has continued to be, a most bittersweet pursuit to convince such intelligent and forceful leaders to buy into the simple premise of faster is better! It really is based on sound human logic. Would you rather walk to school both ways in the snow with no shoes on or being a person of sound body and mind, prefer a quick ride over on a school bus? The reality of the legal industry is, that while most attorneys, large and small, are more than willing to bill out at ever inflating service rates, these same attorneys balk at the idea of spending money to improve their own internal processes.

Although moving your practice from the stone age processes of hard-copy files and warehouses full of bank boxes, into the more current "E-efficient" models may not seem sexy, it will provide you with a more effective way of tracking your massive paper trails that can no longer be ignored!

So, what is Document Management and is it really a cure for the paper cancer? Webster's defines document & management as follows:

doc·u·ment Pronunciation Key A written or printed paper that bears the original, official, or legal form of something and can be used to furnish decisive evidence or information.

man·age·ment Pronunciation Key The act, manner, or practice of managing; handling, supervision, or control: management of a crisis.

For our purposes we should look at document management as the task of, or the practice of managing, handling & supervising pieces of paper that might contain the so-called "smoking gun" that would not only allow us to secure a multi-million dollar verdict for our clients, but also put us well on the road to that beachfront property that we've been eyeing for years. This might seem like an extremely oversimplified conclusion. But is it really? I think not! Why do we need to complicate the issue, when it is really not that complex at all?

The comparisons I mentioned before might seem a little far-fetched but the analogy is really not that far off. The old school ways of sending a paralegal down to a broom closet searching for that "needle in a haystack" document are thankfully over. Litigation professionals from top to bottom are now realizing that their time can be used in much more "revenue driven" areas, instead of spending hours and sometimes days or weeks searching through un-marked boxes of discovery documents. Technological advances over the past decade now afford us the capability of retrieving these documents in a matter of seconds. With the simple processes of imaging and coding your documents, you will now have the ability to share these "treasures" globally to your entire staff, as well as outside counsel or anyone else who is on a "need to know" basis. The technologies available today afford you the potential of handling these issues with several different solutions. Browser-based applications will allow you to store these documents on-line which then allows you instant access from any Internet capable computer in the world, at a very cost-effective pricing schedule. These databases(s) are password protected so you don't need to worry about your sensitive data getting into the wrong hands. You can also go the more traditional route and capture these documents to CD. The only problem here is the increased likelihood for loss of content. In other words, CD's are very easily mis-placed. I tend to lead my clients towards storing these documents on-line because of the efficiency and ease of use, but you really can't go wrong either way.

The American Bar Association estimates that by 2010 there will be 20% fewer attorneys practicing in the US than there are today. Which 20% do you think will go away - the ones who invest heavily in proven productivity-enhancing technologies like Document Management, or the wait-and-seers who say the Internet is a fad? More importantly, which side of this equation do you want to be on?

Back to the top

To hire or not to hire a legal technology consultant? originally written as a reply to an online discussion; Article by Ted Brooks

I have the unique perspective afforded me by my previous employment at one the country's top technology law firms, as well as from my current status as a Legal Technology Consultant. Although much of this was transparent and simply "part of my job" while employed as an in-house Litigation Technology Consultant, I can now say I have seen the Consultant role come around full circle. I have always been of the mind that there are many solutions to every problem. The real "problem" is not necessarily that which needs to be immediately accomplished, but rather gathering enough information regarding the current need along with potential solution options, and then pulling it all together to successfully tackle and complete a given project. Hence, a very real project LTC recently took in, as a case-in-point: Although we (Legal Technology Consulting) focus our core business on trial-related preparation, support, and presentation, having a great deal of in-house experience (and reputation) has brought us much of the more typical "Litigation Support" type of work. That stated, a short while ago I received a rather frantic email, asking me if I could help out on a major database project, which was viewed as critical - given that the project was now a few weeks old (already far behind schedule), and had gone nowhere. I wish not to imply anyone did anything wrong from within the law firm, but simply to suggest that perhaps there was not sufficient information gathered to make a well-informed decision, resulting in failure to complete the project in a reasonable, timely manner.

It seems that a particular database application was chosen, based upon the fact that at one time, it was a very effective method of performing certain tasks. Unfortunately for those steering the ship in this project, the application had been abandoned sometime ago, having not been maintained, supported, or upgraded for months. To add the "insult to injury," an unqualified vendor was chosen for document scanning and creating database load files, which are essentially the building blocks of a litigation database (read: bad files = bad database). This combination, though somewhat profitable for us, could have been avoided. Not to say LTC or some other qualified consultant should not have been involved, but rather to say that it could have been a lot less stressful, and running on a better timeline had the right decisions been made the first time.

My point? I agree with at least a portion of an earlier post on this topic, that the money you think you might be squeezing up front may pale in comparison to what it takes to correct a "situation."

The bottom line: Regardless of whether or not you choose to engage a consultant, remember it is your client who is affected by your decision to utilize or reject the opportunity to locate and employ the best possible solution for the task.

The progress report: We have been able to fix the issues, and have gotten the project back on track. We have also identified a scanning vendor's shortcomings, which will likely cost them in the future- remember, they represented themselves as capable of taking on the job. As a result of our continually offering solution options, along with suggesting preferred methods, we will likely see more of this type of work from this firm (and in fact, have already begun another similar project for them).

Back to the top

"Courtroom Technology - A Small Price For Victory", By Daniel R. Miller

In Minority Report, an action-detective thriller set in Washington, D.C. in 2054, actor Tom Cruise plays a police investigator who uses a dazzling array of high tech video gadgetry in a "virtual courtroom" setting to convince satellite-conferenced judges to issue arrest warrants for murderers before they commit their crime. By arresting the criminals before they act, crime is effectively eliminated.

Sound far-fetched? While eliminating the "actus reus" (physical act) element from criminal prosecution is not likely to occur any time soon, the advent of high tech video gadgetry in the civil courtrooms is moving at warp speed and producing some amazing results.

Witness the recent $975 million settlement in Western MacArthur Co., et al. v. U.S.F.&G., et al. The settlement, reached after nearly three months of trial in Alameda County, is one of the largest asbestos-related settlements ever made. Pursuant to the terms of the settlement, St. Paul, the successor by merger to U.S.F.&G., has agreed to pay the $975 million to resolve approximately 20,000 underlying personal injury asbestos cases filed in Alameda County from approximately 1982 through present (and for additional future claims).

Plaintiffs were represented by Faricy & Roen PC, Brobeck, Phleger & Harrison LLP, and Miller, Starr & Regalia. To deal with the massive amounts of discovery and the daunting task of trial presentation, plaintiffs' counsel turned to Legal Technology Consulting and Ted Brooks.

By the time trial started, the courtroom resembled a neighborhood Good Guys store. There were twenty-three 15-inch flat panel monitors (10 in the jury box, 4 at counsel tables, 4 behind counsel tables for supporting counsel and staff, one in the witness box, and one for the judge), with kill switches to disable the jury's view for unadmitted exhibits. In addition, the parties used a 48-inch flat panel plasma display monitor behind the witness stand for reference by witnesses to documents and other evidence. Plaintiffs used Trial Director on InData Trial Server with Medea external RAID drive, which produced total 300 GB drive capacity to present several hundred exhibits, several days of deposition video and other evidence.

"The Judge (the Honorable Bonnie Lewman Sabraw) wanted to see the trial like a movie, to blend plaintiffs' and defendants' evidence in a way that was easily accessible and understandable to the jury," said Brooks, who acted as the technological maestro in the courtroom. "Since the life of the case (12 years) outlasted much of the technology that was used at the outset, it was a challenge to make all of the technology work. But in the end, we succeeded."

The behind-the-scenes "technology statistics" are staggering. They included:

• 10 Trial Databases (not including several testing, export, import, and case buildup databases)
• 105 GB digitized deposition video
• Combined video runtime: 13 (24 hour) days, 7 hours, 14 minutes, 44 seconds
• Combined deposition excerpt runtime: 2 (24 hour) days, 13 hours, 12 minutes, 53 seconds
• 2322 Deposition excerpts (not counting several hundred used for editing purposes)
• 100 videotaped deposition transcripts (not counting many taped but not digitized)
• Nearly 900 demonstrative graphic exhibits
• 15.48 GB document data
• 164204 TIFF images (all parties, not counting hundreds of thousands in case buildup data)

Amy Matthew, a shareholder with Miller, Starr & Regalia and one of the plaintiffs' lead trial lawyers, had nothing but praise for the work performed by Brooks and the technology team. "This was a case of gargantuan proportion," Matthew said. "Our ability to effectively communicate to the jury, to show the jury a mountain of evidence in a format that they could understand and readily assimilate, was one of the keys to this trial. Without our extensive trial databases and the cutting edge technology used to communicate information to the jury, we would not have achieved the tremendous settlement that we did."

So how does one approach what Brooks described as the "Technological Mother of All Cases"? According to Brooks, the key is to work with competent counsel early on, develop a usable database and use an excellent software program, which in this case was Trial Director. "We agreed to keep a standardized system (Trial Director) following a court order that we were to combine plaintiff and defendant deposition video deposition clips, and play them at the same time, more closely resembling a live witness. This resulted in us (plaintiff) presenting approximately 80% or more of the evidence, with very few "hard copy" documents used during the entire trial. With thousands of exhibits on each side of the table, to try to manage the evidence as paper simply would not have worked in any efficient manner. The Court repeatedly complimented the efficient and effective implementation of technology in the courtroom, and noted how the jury was very focused when deposition clips or documents were shown on the monitors."

At the end of the day, the cutting edge technology used in Western MacArthur Co. may not have prevented the alleged wrongs that led to the filing of the lawsuit, but it certainly contributed to capturing a huge settlement.

Back to the top

It has been said, "Documents are the lifeblood of the Legal World." Through the years, the trees have cried out for justice- or at least maybe for a better way to deal with the massive quantity of documentation handled by lawyers, paraprofessionals, and staff, in preparation for and presentation of legal matters great and small. Additionally, the court system itself is working very aggressively in adopting the use of digital document presentation, and encourages using alternatives to paper-shuffling in court. One of the main reasons for this motivation appears to lie within the efficiency of the digital document trial, allowing exhibits to be displayed to all parties simultaneously, highlighting and zooming in on any given selection, at any given time, as opposed to having several binders passed to and from witnesses, Judge, jurors, and Counsel.

Where to Begin: Existing Databases

This entire process has evolved rapidly through the past few years, as has the hardware and software required to prepare it and bring it to court. In many cases, existing databases, some originally developed several years ago, must be utilized in preparing the exhibits for trial. In some instances, much of this data is unusable. However, every effort should be made to avoid duplication of labor whenever possible.

How to Begin: Exhibit Identification

In preparation for trial, whether reviewing a wall of banker's boxes containing paper documents, or running complex Electronic Discovery (E-Discovery) searches on hard drives or other media, the goal is to cull a large universe of documents down to a manageable size, selecting and including only the most valuable documents for inclusion as Trial Exhibits. Since it is best to begin this process early for numerous reasons, even before exhibit numbers are assigned, a method of identification should be employed at an early stage of preparation. There is an alternative to assigning exhibit numbers to documents that are identified as valuable to the case.

When to Begin: Trial Database Development

That is to begin assigning the documents a temporary point of reference, such as a file name. Even though it may be too early to assign an exhibit number, it is never too early to pass the documents to a database developer to place them in an organized, searchable format. This then can rather easily be converted to trial exhibit numbers, by simply adding and completing a cross-referencing database field.

The Trial: Exhibit Presentation

When this is all done properly, it is very easy and efficient to bring any trial exhibit to the courtroom monitors within seconds of the request. Even better is the prepared argument, with exhibits, demonstratives, and even deposition video clips, using barcodes and/or numbering systems to retrieve the materials. Often, particularly in instances of impeachment, all the preparation in the world will not uncover the "Golden Nugget." When the witness does impeach himself, the document must be available instantly upon request. Thus, the cross-referencing exhibit numbering systems are very valuable, and worth every minute devoted to their development.

Closing

No matter which method(s) you choose to employ, try to avoid pondering how it might have turned out with better and earlier preparation. It simply is not reasonable to pass a huge volume of documents to a Legal Technology vendor or other Litigation Support person two or three weeks away from trial. Although many miracles have been pulled off, it is certainly not a prudent way to operate. If there is even a remote chance your case will go to a hearing, mediation, arbitration or trial, any time it takes for preparation to that end is time well spent. Even in settlement talks and smaller hearings, it can make all the difference in the world if you show up with the sledgehammer, ready to go to battle. The intimidation and showing of your preparedness for trial can have a strong impact on your opponent.

Back to the top