When Luddite Trial Presentation, E-Discovery, and Ethics Collide
To competently handle e-discovery matters, effective trial presentation is essential.
“Luddite” is a term frequently used to describe an attorney who refuses to embrace technology in their practice. The story of the Luddites dates back to the early 1800s, and describes their resistance to the efficiencies of technology in the textile industry. While there is arguably more to the story, it is often contrasted to the legal profession. Moving forward in time a hundred years, many resisted the horseless carriage, and probably preferred that Henry Ford develop faster horses than the automobile. Yet another hundred years, and here we are today, establishing strongholds against the computer.
In its recent Formal Opinion (No. 2015-193), the State Bar of California Standing Committee On Professional Responsibility and Conduct concluded that “a lack of technological knowledge in handling e-discovery may render an attorney ethically incompetent to handle certain litigation matters involving e-discovery, absent curative assistance under rule 3-110(C), even where the attorney may otherwise be highly experienced.”
So, when is the last time you saw an attorney attempt to present electronically stored information without using trial presentation technology, opting instead for the old reliable and predictable “horseless carriage”? While it may not appear to be as egregious an error as failing to properly discover data, certainly skipping over exhibits because you cannot find them, or spending too much of the court’s and jury’s trial time rifling through boxes and binders hunting for them can present a competence issue.
Courts will often require parties to utilize the technology if it is available. Cute excuses relating to cost or difficulty died off years ago. Expert consultants abound, cost-sharing arrangements are commonplace, and should you happen to enter a checkmark in the “W” column for your client, costs may be recoverable. While you may not personally qualify as a “master” of all of this, you are charged to be competent enough to represent your client.
Here are three of my favorite excuses for not using technology in trial:
- It Costs Too Much
There are indeed added costs to consider when deciding whether or not to use technology to assist with your evidence presentation. You may request an estimate from any trial presentation firm, or if handling it in-house, have someone figure out how much money needs to be added to the trial budget. Depending on the length of the trial, this might run from a few thousand dollars to five figures or more. Reduction of trial time has been estimated as high as 30-50%, so unless you’re really concerned about maximizing your billable hours in trial, it’s at least worth consideration.
- I Don’t Know How to Use It
Learning how to use trial presentation software or apps can take time, and unless you work with it often, you may not be comfortable enough to use it yourself in trial. If you’re willing to work with it and practice a bit, you can certainly learn to handle the basics. There is no requirement that you personally learn and operate the software, however. This is something you can have a trial presentation consultant or perhaps someone in your firm handle, allowing you to spend your time and energy trying your case. In my experience, I can tell you that every attorney who had never used technology in the past will never go back to the old way of doing things.
- It Looks Too Flashy
This argument may have held up 20 years ago when much of this was new, and was considered to be on the cutting edge of litigation. Today, it would be difficult to find a juror who is not familiar with nightly news format styles and the Internet. Although trial presentation software is a powerful database application, to the juror, it looks like little more than a PowerPoint presentation—something most have seen and used. You’re going to have a tough time finding a panel of jurors who are truly impressed with the way this stuff looks.
Okay, Sign Me Up!
Let’s assume that after reading of a potential ethical violation, malpractice suit and certain disaster, you’re thinking that while this all makes sense, you don’t know where or how to begin. Fortunately, this can be as simple or complex as you want to make it. Here are a few options.
- Do It Yourself
If you are comfortable with computers, software, and learning new things, there are iPad apps and computer software programs you can use. You could try using PowerPoint, but that is a bit limited with respect to its functionality, so it is frequently used just for opening statements or closing arguments. Adobe Acrobat can also be used, but it also has limitations. Trial presentation apps are built to show documents, zoom in on a paragraph, and highlight key text. They can also display deposition video testimony. Popular computer programs include TrialDirector, Sanction, Visionary, and ExhibitView; iPad apps to consider include TrialPad, ExhibitView and TrialDirector.
- A Little Help
You can do this! At least, you can with a little help from someone who can get all of your exhibits into compatible formats, and can put a database together for you. Then, you can show up to court with your laptop or iPad, connect to the system, and present the evidence. OK, there’s a little more to it than that, but it is doable, especially if you get assistance from someone who has done this before. Many litigation graphics providers or equipment rental vendors can help get you rolling, and of course a trial presentation vendor could be a perfect fit. There is still a bit of a learning curve and it will require some time to get comfortable and confident enough to use the software, but it can be done.
- Here, You Do This
If you’re the type who prefers to delegate tech tasks, then perhaps you’d be one to consider bringing in a trial presentation consultant. This is someone who does this sort of thing every day, and who spends more time in trial each year than many attorneys do in a lifetime. There are added (potentially recoverable) costs, but this can free you up to focus on trying your case, rather than trying your patience with technology. Even an attorney with no prior experience can look as though they’ve been doing it for years, as the only real difference is the method used to display exhibits to the jury. Just call it out, make a record, and it is displayed.
There are many valid concerns surrounding the use of various technologies in a legal setting, which explains why there is always a delay for law firms to embrace the latest new toys. But to every Luddite lawyer, a piece of advice: You should really spend some time learning enough about the technologies that concern you, in order that you might make informed decisions, and avoid becoming the topic of the next State Bar Opinion.
Ted Brooks is a trial presentation consultant for Litigation-Tech LLC, with offices in Los Angeles and San Francisco.