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Talking Technology – Perspectives from the Federal Bench, Legal Tech 2016

The Way eDiscovery Should be Done…

 

 

I say it every year.  As a practicing attorney, if you are only going to attend one session at Legal Tech, it should be a panel where jurists are willing to impart their knowledge and impressions to a legal audience.  Getting information directly from judges is the best roadmap a litigator can have that might reveal which arguments and tools will be most useful in promoting your clients position.   While you may have to read between the lines, there is always information to be gleaned from these sessions. The session this year was titled, “How is Technology Being Used in Today’s Court Rooms and Cases?”

Along with Hon. Pamela Meade Sargent, magistrate judge at the U.S. District Court of the Western District of Virginia, the panel featured Hon. James C. Francis of the Southern District of New York, Hon. Lorenzo F. Garcia of the District of New Mexico, Hon. Elizabeth Laporte of the Northern District of California, and Hon. Andrew Peck, also of the Southern District of New York. The session focused on the technological innovations that the judges are seeing, or not seeing, before and during trials.

I was somewhat shocked to hear Hon. Pamela Meade Sargent, say, “We’re really not seeing a lot of innovation in what we’re seeing in the courtroom yet. What we’re seeing is different ways of shuffling paper.” Contrary to popular perception that there is a revolution involving how law is practiced and all the tools available for courtroom presentation, apparently it is often business as usual.

Judge Peck noted that during trials, the opportunities to see new technologies are vanishing, as fewer cases actually make it to the trial phase. When attorneys do have a chance to present at trial, though, technologies run the gamut. “When cases do get to trial, the presentation of the trial, even in the Southern District of New York, technologies vary from the lawyer that barely has one copy of a paper for an exhibit… to the fully wired courtroom, where virtually everything is computerized, there are monitors in front of each lawyer table, and either the court room deputy or one of the lawyers controls which screens he wants.”

He also added that part of the problem is that many courtrooms are not pre-wired for technology, so lawyers have to bring technology with then if they want to deploy it.  In later one on one conversation with Judge Peck, we discussed lawyer’s reticence to address any questions to the court regarding trying something a little different; there is a strong tradition of “not rocking the boat”.  Judge Peck said most jurists are open to any ideas that will have a positive impact on the case, so focus on asking to use technology that will help move a case or focus attention on hard to understand evidence.  However, lawyers should not propose technology for technologies sake.  Law should remain focused on facts and content, not on style for styles sake.

Some other interesting points raised during the session:

How Technology May Impact a Case – A live example of the advantages of technology was described by Judge Francis in relation to the two trials of former Illinois governor Rod Blagojevich.  During the first trial, “Given how complicated and complex the facts of the trial were, the jury was confused, and there was a mistrial.” However during the retrial, “the second time around, the attorney saw the light” and used technology effectively to highlight certain facts of the case, removing confusion, which lead to a successful conviction.  When technology improves the presentation and provides clarity better justice may be the result. Still, overall, there appears to be reluctance on the part of attorneys to use technology in the courtroom.  Judge Francis concluded, “I think we’re seeing, even in the pre-trial phase, we’re seeing technology a lot less than we would expect.”

Know how to Use It – If you are going to use technology in trial presentation, you need to understand how to use it.  “We expect the people in front of us, if you’re going to use the technology, to know what they’re doing,” Judge Sargent noted. She noted that this created a real opportunity for vendors to assist their clients, not only to sell technologies but to teach them how to use it properly or operate it for them in the court.  A word of caution here for lawyers.  Unless you are extremely tech savvy, either take the time to attend classes to become comfortable with the technology or hire someone else to run it for you.  If you are comfortable with the lawyering, stick to the lawyering so that your presentation does not suffer due to awkward technology integration.

The Legal System is Slow to Adopt  – Judge Garcia  made a comparison of the state of the conflicts in the current legal environment in juxtaposition to the time when scribes did not want to move to the new technology of the time—the typewriter. “We find a lot of reluctance to move on to new technology because it’s different, and it’s hard. … You’re going to find those recalcitrant parties who say, ‘I’m going to stick with my quill pen and ink.” Judge Garcia made an important follow up point that lawyers should listen to.  He stated that not adopting these new technologies goes against what is required of lawyers within the Model Rules.  The Model Rules contain further requirements that attorneys are responsible for understanding and following in the practice of law.

The Need to Understand “Big Data” –  In addition to new technologies, lawyers need to understand concepts that include the role of  Big Data and how Social Media interact with current litigation.  Given that the law is notoriously slow to adopt, these concepts have been thrust upon us with amzing speed, changing the way that eDiscovery is practiced and implemented.  Judge Francis said that courts are required to look beyond just volume, velocity, and variety of data. “I look at Big Data as a situation where you’re looking at data without an expectation,” Judge Francis said. “You’re looking at this mass of data, and you’re looking for patterns.”  Judges are usually willing to be educated about how to handle cases with Big Data, but be sure that clear explanations are provided to them and avoid techno jargon when describing what you need and why it is important.

The Role of Privacy – Judge Laporte noted that privacy issues are taking place every day, such as current protests over student privacy at University of California campuses. That’s why it’s important for attorneys to remember before going before a jury, Judge Sargent added, “If you have a case where Big Data is truly an issue, you have to understand that people are scared.”  It is the job of the lawyer to explain the data clearly and accurately, remembering that your audience has not spent the last 5 months learning about the issues.

 

The Takeaway – The judiciary is not opposed to technology when it will improve the trial presentation and lead to a clearer understanding by the judges and/or jury.  In fact, the panel seemed to be saying, we are open to the use of technology, the parties need only to overcome their fear of asking the judge to allow its use.  Before you ask, make sure you look at the Local Rules to assure that you frame your request correctly and at the right time.  The Local Rules are there to help all parties, not penalize them.

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