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Hold Technical Non-Compliance Accountable To Move Efficiency Forward

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October “Trial Technology Series” written by NITA guest blogger, Shannon Bales

We all want to do our part to make courts and the trial process more efficient. Technical efficiency helps us present our case better by being organized and having the data at our fingertips; it lowers the cost to clients and eases the burdens on courts with backlogs of cases by being faster. Unfortunately, for many legal teams the use of technology at trial is an afterthought. Teams that don’t fully work out and understand the technical requirements for exhibit exchange or test their equipment prior to trial or even worse ignore agreed upon specifications during trial create barriers to efficient exchange of information at trial, slow down the administration of justice and create risk in the courtroom for technical failure.

There are great working benefits to legal teams of having your technical house in order (organization, technical compliance, war room performance). Simply being able to create, share and print an exhibit quickly is a tremendous benefit (and possibly a competitive edge) to a legal team in terms of being able to prepare and present. Going into trial, teams should have a very solid understanding of what their technical responsibilities and burdens will be when they agree to the technical specifications for an exhibit exchange. Lawyers should consult with team members who are familiar with the data as it currently stands and those that will be working with it at trial (typically a database/lit support person and a trial tech) so the best choices can be made in working with the teams’ data. You would be surprised at how often the plaintiff and defendant make combined decisions that are counter to their own self-interest and create tremendous burdens on their respective support staffs to comply with that are completely unnecessary. Last, there is a vibrant inhouse and consultant community that can assist and should be consulted upon in preparation for and during trial.

Some initial considerations:

  1. Initial technical considerations
    1. What format is our data currently in?
    2. Is there an exhibit exchange format that parties can agree to that lowers our technical burdens and workflow? (i.e.- what format will make this easy?)
    3. How much video and clipping does the case have?
    4. In house or Consultant trial tech
    5. Have the parties’ technical representatives been introduced and have they been empowered to resolve issues?
  2. Create a specific Trial Management Order
    1. What format PDF, TIFF, JPG
    2. What format load file (if required)
    3. Easy naming convention – Don’t overcomplicate exhibit names and branding
      1. Use Short/Simple prefixes (TX = trial exhibit, P = Plaintiff, D = Defense)
      2. 4 digit exhibit number and 4 digit page number is common
        (Example: TX0001-0001)
  • How to identify redacted exhibits in file naming conventions
    (Example: TX0001R-0001 – “R” for redacted)
  1. Are there color considerations?
  2. Can exhibits be straightened, darkened, or otherwise edited?
  1. Have sample files been exchanged and approved by both sides?
  2. How will video clips be exchanged?
    1. Recommendation: Exchange complete video as it will be played in court including sync’d documents to be played.
    2. Run sheet?
  • Synchronized files to be displayed?
  1. What is the exhibit creation workflow?
    1. How will exhibits be created?
    2. How will exhibits be named and branded?
    3. How will case data be managed and organized?
    4. Does the team have the right software?
    5. Who will be responsible for intake, processing and QC?
      1. Many teams use a “gatekeeper” to intake and process all files.
    6. Will the legal team need vendor help to convert and process files?
  2. Courtroom equipment rental and setup
    1. Recommendation: Use a 3rd party vendor
      1. Professional setup
      2. Split invoices
    2. Equipment testing and setup
      1. Teams should test the equipment (the actual equipment) to be used in the courtroom
        1. 50%+ of errors would never occur “but for” basic testing and configuration beforehand
      2. How will exhibits be exchanged?
        1. Is there a time limit for exhibits to be used next day?
        2. Email distribution list for confirmation?
        3. FTP may not be a good exchange mechanism for large or voluminous files that are needed for next day use due to upload/download speeds.
      3. Exhibit Presentation
        1. Use the exhibit number always
          1. Consider correcting the record for misidentified exhibits (i.e. – those identified using a number other than the exhibit number)
        2. Practice communication with the trial tech if you use one
          1. Use the exhibit number
          2. Do you know the difference between a highlight, callout and zoom?
  • Rehearse and practice presenting and communicating
  1. Practice what to do when equipment fails or exhibits crash

Those that don’t do their part are doing the legal community (and perhaps their client) a huge disservice. How can a team that does not understand their own data, take basic QC steps for their own technology or know how to comply with simple exchange standards be working efficiently themselves? A non-compliant exchange of exhibits incurs much risk for legal teams and can cause failure and delay in the courtroom. For example, delivering in technical formats that aren’t readily usable in court or were not named or branded correctly may cause the receiving team to work thru the night to convert the electronic files into a usable format. Plain and simple this is burden shifting and whether calculated or not, it is wrong and hampers the adoption and use of courtroom technology. Teams should be held accountable when they shift the burden and if egregious should be brought to the attention of the court.

Another example of avoidable error is when lawyers do not test their equipment in advance of trial. According to an informal survey of courtroom IT, more than 50% of problems are avoidable if attorneys simply tested their equipment in advance. The impression of attorneys who bumble and stumble through their presentation, technical failure or connecting their equipment by decision makers like the Judge and Jury is overwhelmingly negative. There are other signs that a party’s technical house is not in order. For example, when they use something other than the exhibit number to call out exhibits like an old bates/production number or their exhibits aren’t branded as agreed upon. Typically, it means they have not taken the steps necessary to prep data for efficient exchange and more importantly can cause significant Juror confusion by not using the correct naming convention (i.e. – the exhibit number).

In conclusion, Courts and legal teams are holding legal teams accountable for their noncompliance with exhibit exchange requirements, avoidable technical issues in the courtroom, and technical shenanigans. For many cases the volume and complexity of data is becoming routine so new methods of approaching trial should be considered that contemplate including those with technical expertise in the decision-making process and to hold firms accountable for their trial work product. One way to hold both sides accountable is to create a specific exchange agreement that contemplates technical, branding and naming formats for exhibits and video clips. Last, document exhibit exchange issues (time of exchange, technical compliance, quality issues, etc.) so that it can be brought to the courts’ attention if not immediately remedied or if it becomes a continuous problem. Parties that don’t comply should be compelled to do so.

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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