The final entries in our series on the EDRM (or Electronic Discovery Reference Model)—considered the definitive guide to eDiscovery best practices—will look closely into utilizing the EDRM for trial presentation.
Electronically sourced information, or ESI, can sometimes lead to breathtaking turns in the trajectory of a trial, but mishandling the presentation of this information can chip away at an otherwise solid case’s foundation.
Historically, exhibits have been presented in paper form. In many cases, they still are, and doing so won’t necessarily be an issue. However, changing technology has led to a greater ease in producing exhibits that present electronically-stored information in a near-paper, or “image” format, that is closer to its original format than would otherwise be possible.
In some cases, attorneys may need to present ESI in native or near-native format.
No single best practice for ESI will cover every possible eventuality, so EDRM guidelines on trial presentation are best considered as informative and helpful, rather than set in stone.
The EDRM’s best practice for trial presentation include the following stages:
- Initial strategy development
- Selecting format and choosing what to exhibit
- Preparing and testing exhibits before trial
- Presenting exhibits
- Storing and maintaining exhibits after the initial trial concludes.
We’ll first take a look at what goes into developing your trial presentation strategy.
Trial Presentation Development: Credibility, Placement, and Careful Planning
It’s important to begin by mapping out what your objectives are for the specific information you’re interested in presenting at trial.
- Are you looking to persuade, or to simply add context or more understanding?
- What facts are demonstrated with this information?
- Does a particular theme emerge?
- Is the information actually relevant to the case?
- Does it prove or disprove a particular fact that may be at issue?
- Is there any additional evidence that supports the theme suggested by the ESI?
- Is the ESI immediately persuasive, or does it lack credibility that would then need to be established?
- What types of electronic information are included?
- Will the ESI need to be processed in a specific manner?
Once you have these questions answered, your strategy can begin to take shape.
We suggest starting with proof of credibility.
Just as attorneys often must prove the credibility of a particular witness before that witness’s testimony can truly be seen as reliable by a judge or jury, so should attorneys and paralegals be careful to prove the credibility of a source of electronic information before they rely on it to prove or disprove a fact.
What is the chain of custody for electronic information presented at trial? Every step from initial seizure through custody, control, transfer, analysis, and disposition should be chronologically documented. How was this information accessed by your legal team? All documentation to this effect must be kept with excess care.
Meet with any experts who will be used to explain issues to the jury or provide credibility to your argument as soon as possible. Many experts will have already put together a basic deck of slides that will need to be customized and sometimes reformatted to look like the rest of the presentation. The earlier you meet with any experts, the more time you’ll have to seamlessly integrate their presentation into your own.
Will your trial involve video depositions? Your office or firm should take care to know which appropriate formats to ask for when ordering materials from a deposition taping. Most court reporting companies should be able to provide mpeg1 and sync files shortly after the deposition is complete.
Take time to check the deposition for quality control and accuracy, and leave plenty of time for requesting an additional copy should your first copy be corrupt. Any deposition video filmed outside of the United States will need to be format-checked, as international formats (non-NTSC) can prove problematic.
Maintain documentation from all hearings and motions pre-trial, so you have a complete database of every action taken. This is also a great opportunity to make a quick visit to the courtroom in order to check on what technology is already installed and whether you will face any challenges in bringing your own equipment in for use during the trial.
Courtroom Strategy: What’s Already Equipped and What Do You Need to Bring?
The effectiveness of your presentation could be heavily affected just by changes in courtroom size or layout, so spend a moment getting an idea of how things will look.
Most courtrooms will at least maintain flat-panel monitors for the counsel tables for each side, for witnesses, and for the judge. There should also be a large monitor or screen explicitly for the jury. Check to see if all wires you’ll need to use can be safely taped along walls or otherwise out of the way to minimize tripping hazards.
You will need to gain approval from the clerk and judge for any equipment you hope to bring in yourself as soon as you are reasonably able. All your careful planning and strategic development won’t mean a thing if the court won’t approve the basic technology to showcase it!
Put together documentation on what equipment you might need to bring in as soon as possible. The trial judge may be skeptical of its usefulness, so provide a diagram of where you’d like any and all equipment to go, as well as its necessity for your presentation.
While working on this, spend some time putting together any questions you might need answered from the clerk or courthouse staff before trial:
- Can the equipment be left in the necessary configuration for the entirety of the trial?
- Does anything need to be moved for morning status calls?
- Does the judge have a preferred court reporter?
- Will there be real-time court reporting provided?
- Is internet access available within the courtroom?
- What are the policies regarding PDAs or other mobile devices?
- What is the placement of the “kill switch,” if any, that will stop images from projecting to the jury?
- Will an electrician need to be brought in ahead of time to ensure proper distribution throughout circuits to prevent overloading?
- What is the process for bringing in equipment to be properly scanned? How long does it normally take?
The groundwork for any successful trial must be carefully laid, and that includes seemingly minor details like ensuring electricians have the right amount of specialty gaffer tape for taping down any needed wires, knowing what kind of court reporting will be available or if you need to bring in your own, and any other detail that may need to be considered.
Shared Equipment and the Opposing Counsel
While opposing counsel refusing to agree on a single detail may seem entertaining on legal dramas aired on TV, most courts simply won’t put up with opposing sides attempting to haul in two separate sets of equipment rather than simply share.
Projectors and screens required for showcasing copies of electronic information tend to take up quite a bit of space, and smaller courtrooms can easily become crowded and overwhelmed if both sets of legal teams insist on bringing in their own.
We suggest communicating with the opposing counsel as soon as you know what kind of equipment you’ll need, and ensuring shared equipment is utilized if at all possible. Cooperation between the two sets of counsel now can keep everyone in the court’s good graces going into the trial.
One Final Suggestion: Archive Everything
We cannot overstate the importance of archiving all data from the beginnings of the trial research process all the way through any appeals. While most paralegals are careful to note each document as it is admitted, transcriptions of video depositions can sometimes be left out of official documents.
If the official court record merely states, “a video played,” or even something like “a video was played in which a witness described receiving a text message from the defendant,” you’ll be forced to rely on that incomplete record later on if you don’t have any data of your own to provide the details.
This kind of data loss could cause problems during the appeals process. Emphasize to anyone who works with documentation the importance of having an exact transcription of all video depositions to ensure that reliable and accurate records are always available when needed.
Our own Adam Shirley knows the EDRM inside and out, and he’s always happy to meet with clients to give them a better idea of how the EDRM can help them build more effective cases from the ground up. To request your FREE Lunch and Learn presented (we provide the lunch!), give us a call at (864) 467-1373 or contact us online at any time.