October “Trial Technology Series” written by NITA guest blogger, Shannon Bales
There are so many difficult technical decisions as you approach trial and one of them is equipment selection. It is often thought of as a distraction to legal teams but just a few minutes of the legal teams’ attention on this issue (which might mean discussing it with the Judge) can potentially prevent disaster. Before I begin the discussion, let’s get out of the way that there are cases where parties might cobble together a few pieces of equipment they own and work together using what they have due to budget, case size and technical ability. However, in cases where two equally yoked parties have agreed to split costs there can only be one solution and that is to use a neutral third-party equipment vendor.
While on its face it might be reasonable these kind of “bring your own equipment” arrangements (equipment “potluck”!) are potentially problematic. A legal team runs the risk of having a less professional appearing presentation or worse, one with technical issues that can’t be resolved because you don’t have a responsive vendor with an obligation to assist you. Undoubtedly “potluck” equipment tends to be much lower quality than the cutting-edge equipment that you can get from a vendor.
Using a 3rd party vendor provides equal access to quick replacement equipment and technical know-how. Separate invoices can be created and each party will be responsible for its “half”. This gives both parties equal access and expectation to a vendor to service and support their trial needs. A reputable 3rd party vendor will have replacements available, technical expertise, and be on call for any issues that occur as well as likely having a large selection of equipment (and expertise) that can be used to equip your particular courtroom technical need. How likely is the court to delay proceedings for a team if the equipment malfunctions and there is no plan for immediate replacement? Last, if things get contentious (and don’t they all at trial?) can you rely on the other side to troubleshoot and configure your equipment like you could a 3rd party vendor?
Regardless of where the equipment comes from you must have a plan on how malfunctioning equipment will be replaced and how long will it take to replace it. An independent vendor is much better situated to address the needs of both parties and to replace problematic equipment. The court might grant a long lunch to get a replacement together but are they going to wait a day for equipment to be shipped or purchased from somewhere? What is the responsibility of the equipment providing team to replace, configure and troubleshoot equipment for the other side? If it comes down to servicing their own team or troubleshooting technical issues for the other side where do you think they will come down? Your problems will quickly become unimportant and you will be left holding the bag of a potentially error prone presentation, or one that simply does not look right on screen because you didn’t get the attention a 3rd party vendor brings. Parties should be able to clearly answer the questions above or they are simply injecting unnecessary risk into the equation or are worse, trying to pull a fast one.
A common ploy being used by less reputable teams is to offer to substitute a key piece of equipment (usually the projector) for their own projector. While not always unscrupulous, the risk of not having a replacement or equal access to technical expertise far outweighs the benefit of a single lower priced piece of equipment. Most often this done so the offering team can either obtain the rental fee for their piece of equipment (XYZ company is charging 500 per week for a projector – I’ll only charge my client 250!) or to avoid their half of the shared setup bill. Worst case scenario is when the setup is held “hostage” (meaning they will not proceed with setup) by one party so they can get what they want. On the other side of the coin, if you are providing equipment and it breaks during the other sides’ presentation are you ready to take the heat and ugly accusations that come with it? It’s great if you have a projector at your firm that you can lug around for client meetings but do you have a second one in case the bulb burns out or you drop it on the courthouse steps? Do you want to be in the business of supporting your rival? It’s just not worth it.
Another tactic to look out for in equipment provided by the other side is equipment that might provide an unfair advantage. For example, what if the other side brings a large touch screen monitor that you have no experience with? Do you want to fumble through your presentation and put your technical incompetence on display on a piece of equipment they have likely practiced for months on? In such cases, once again it is important to agree on the equipment to be used, to take the time to become familiar with it and if it is something that could potentially provide an unfair advantage that either access and training are provided, or it is simply excluded from use.
In closing, get agreement with the court to committing to the use of a 3rd party vendor so the gamesmanship mentioned earlier doesn’t occur and the setup is just a formality rather than a “hostage” negotiation. Second, use a 3rd party vendor to handle equipment needs because it provides stability and lowers risk of technical malfunction to the courtroom technical environment via equal access to expertise, maintained equipment and timely replacement of malfunctioning equipment. Both parties are able to have an equal expectation of service and support as well as the ability to split the bill on separate invoices avoiding headaches and unnecessary drama.
This article was written by:
Shannon Lex Bales
Managing Director, Trial Technology Consulting FTI
UCLA Paralegal Trial Technology Program Instructor
Trial Technology Author
UN War Crimes Tribunal Legal Technology Advisor
Legaltech Award: Most Innovative Use of Technology During a Trial 2009
Email Shannon at: Shannon.Bales@FTIConsulting.com
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