Mobile Technology for the Courtroom: The Curmudgeon's Counterpoint

James Berriman, Esq. Chief Executive Officer, Evidox

The Presenter(s)

James Berriman

• Evidox Corporation: CEO (2006 - present) • Goodwin Procter LLP:

• Director of Litigation Technology (1999-2006) • Litigation Attorney (1990-2006)

• Boston University Law School: Lecturer in Law (appointed 2011) • Over 25 Electronic Trials

James Berriman

• Evidox Corporation: CEO (2006 - present) • Goodwin Procter LLP:

• Director of Litigation Technology (1999-2006) • Litigation Attorney (1990-2006)

• Boston University Law School: Lecturer in Law (appointed 2011) • Over 25 Electronic Trials

The Curmudgeon - My Alter Ego

• Paranoid - I assume nothing is going to work! • Skeptical - If it's new, how do I know it will actually work? • Risk-averse - I only want to use what I know will work! • Trailing edge of technology - I know it has worked before! • Survived Over 25 Electronic Trials

The Presenter(s)

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Trial is the culmination of everything your team has been working on for several years:

• Every client meeting

• Every pleading and letter

• Every document reviewed and produced

• Every deposition, motion, conference

• Every billable and non-billable hour

• Every matter-related expense

To put things into perspective . . .

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The Objective:

• To persuade

• To change someone's mind (judge / jury)

• Using evidence and argument

What is the role of technology?

• It is an "evidence delivery" medium

• It is an "evidence enhancement" medium

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How Technology Enhances Evidence

• Access: near-instant recall of evidence

• Fluidity: no clumsy paper shuffling

• Speed: display without manual distribution

• Orientation: Easily show identifying criteria

• Focus: Jump straight to the relevant parts

• Clarity: Use callouts and highlighting tools

• Dynamism: Real-time coordination with the testimony of the witness

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The 3 Purposes of Evidence:

• To Establish

• To Corroborate

• To Contradict

Technology enhances all 3 purposes

Especially using split-screen technology to show either corroboration or contradiction between two items of evidence

17 U.S.C. §101. Definitions

17 U.S.C. §101. Definitions

17 U.S.C. §101. Definitions

17 U.S.C. §101. Definitions

17 U.S.C. §101. Definitions

17 U.S.C. §101. Definitions

17 U.S.C. §101. Definitions

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17 U.S.C. §101 vs 1976 House Report

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17 U.S.C. §101 vs 1976 House Report

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17 U.S.C. §101 vs 1976 House Report

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17 U.S.C. §101 vs 1976 House Report

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17 U.S.C. §101 vs 1976 House Report

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The Trial Support Objective:

Avoid Disasters!

• Avoid technical disasters

• Avoid logistical disasters

• Avoid effectiveness disasters

• Avoid legal disasters

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The Basics of a Mobile Trial Setup

• Sources of evidence

• Evidence control devices

• Software for evidence control devices

• Evidence display devices

• Switching and connecting devices

• Ancillary devices

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• Live testimony - introduces the other kinds

• Electronic files in production format (TIFF)

• Electronic files in native formats

• Transcripts of past testimony

• Media files (photos, depo video, animations)

• Demonstratives, summaries, chalks

• Paper documents, physical evidence

Sources of Evidence:

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Evidence Control Devices

• Call up the evidence, control it, and send it to the display device

• Often stores the evidence too

• Examples:

• Laptop

• Tablet

• Touch screen

• Document camera

• Video playback devices

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Software for Control Devices

• Static control: PowerPoint

• Linear display order (slideshow)

• Best for "scripted" presentations (opening, closing, direct, expert testimony)

• Slides are made in advance

• Very precise design control

• Ability to add captions and labels

• Labor-intensive and time-consuming

• Easy to use in the courtroom

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Software for Control Devices

• Dynamic control: TrialDirector, Sanction, etc.

• Random access (non-linear)

• Good for less-predictable examinations (adverse parties)

• Can use with huge repositories

• Realtime markup tools

• Less precise design control

• No heavy advance labor

• More skill required to use

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Software for Control Devices

• Video playback: TrialDirector, Sanction, etc.

• Synchronizes video with transcript

• Transcript scrolls like captioning

• Words plus text adds clarity

• Easy to jump to page-line coordinates

• Easy to make video excerpts and clips

• Clips can be called up in real time like other evidence

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Software for Control Devices

• Helper Programs:

• Graphics editor (edit TIFFs and photos)

• Text editor (edit transcripts)

• TIFF driver (convert other files to TIFF)

• TIFF batch editor (crop, deskew, etc.)

• PDF driver (convert other files to PDF)

• Batch file renamer

• MS Office apps to access native evidence

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Evidence Display Devices

• Display the evidence to the viewers

• Examples:

• Projector and screen

• Large flat screen

• Individual screens for judge, clerk, steno, podium, counsel tables, tech, jury, gallery

• Speakers for audio playback

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Switching and Connecting Devices

• Controls which device is active

• Controls which displays are active

• Switches between parties

• A matrix of inputs and outputs

• "Kill switch" to isolate jury

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Ancillary Devices (mostly optional)

• Another laptop dedicated to live steno feed, if desired

• Small and very quiet scanner

• Small and very quiet printer

• Cables, extension cords, adapters

• Table for hotseat operator

• Uninterruptable power supply

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Other Critical Things

• Hardcopies. Your team will always need physical copies of the documents displayed electronically (to be marked for the official record and possible appeal).

• Clean memory keys. The parties are often called upon to exchange data.

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Pre-Trial Checklist For an Electronic Trial

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Contact Information: Get names, numbers, and email addresses for the following:

• Courtroom clerk

• Courthouse IT director

• Courthouse security office

• Stenographer

• Litigation-support contact for each party

• Any equipment vendors involved

Pre-Trial Checklist - 1

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Judge's Protocols: Speak with the judge's courtroom clerk to determine if the judge has any electronic trial protocols:

• Preferred equipment layout

• Do attorneys use the podium?

• If so, the preferred podium position

• Permissibility of live steno feeds

• Who controls the kill switch

• Advance disclosure of demonstratives

Pre-Trial Checklist - 2

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Courtroom schedule: Speak with the judge's courtroom clerk to determine the courtroom schedule and courtroom access protocols. You will need this information so you can choose a suitable time for setting up that does not interfere with other court proceedings.

Pre-Trial Checklist - 3

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Courtroom survey: Conduct a survey of the courtroom before preparing the equipment specification. Items to consider:

• Locations and lines of sight for all key players (judge, jury, witness, counsel, presenter, clerk)

• Podium location and configuration

• Possible equipment placement

• Electrical outlet locations

• Light control (blinds, light circuits, dimmers)

Pre-Trial Checklist - 4

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Existing equipment: Determine what equipment is already located in the courtroom or available elsewhere in the courthouse.

• Is the courtroom already wired?

• Existing control or display devices

• Available furniture for counsel and techs

• The courthouse IT director should be able to provide information on other resources

Pre-Trial Checklist - 5

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Courtroom sketch: While conducting the survey, create a sketch of the courtroom showing the locations of the judge's bench, the clerk's table, the witness stand, the jury box, counsel tables, the presentation podium, existing equipment, outlets, windows, the bar, the bailiff's station, and the gallery. This will help you plan the setup.

Pre-Trial Checklist - 6

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Security: Speak with courthouse security:

• Let them know you will be bringing presentation equipment into the courthouse on a daily basis

• Determine if they require written authorization from the judge or other officer

• Determine if they require equipment or boxes to come through the service entrance

Pre-Trial Checklist - 7

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Stenographer: If the court allows the parties to receive a live feed from the stenographer, and if you want a feed, then you must speak with the office of the court reporter to request that a connection be made available. If you will need expedited daily transcripts, you must also arrange for expedited handling.

Pre-Trial Checklist - 8

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Cost and resource sharing: If other parties will also be presenting evidence electronically, you will need to coordinate with them to determine what equipment, resources, and costs they are willing to share. Judges like sharing and cooperation. They do not like redundant or conflicting setups.

Pre-Trial Checklist - 9

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Vendor: If you will be using a trial equipment vendor to wire the courtroom, you should now have enough information to prepare a specification, request an estimate, and discuss any additional equipment that you may need.

Pre-Trial Checklist - 10

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Jim's Critical "Best Practices"

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What I Do in Every Trial

• Convert everything to multi-page TIFF

• Number files with padded zeroes

• Create "alias" versions of critical exhibits

• Develop all presentations "locally"

• No network reliance

• On the actual trial laptop

• Create hardcopy markup cheat sheets

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What is "Mobile" Trial Technology?

Laptop versus Tablet

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Trial Laptop - Pros

• Presentation apps are full-featured:

• Split screen, compare and contrast

• Ability to run synched video

• Full creation and editing capabilities

• Ability to run all helper apps

• Ability to run native files as natives

• Ability to transfer data via USB

• Ability to store all evidence locally

• Mouse-driven controls - very precise

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Trial Laptop - Cons

• More expensive

• More complex

• Heavier

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Trial Tablet - Pros

• Cheaper

• Simpler

• Smaller

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Trial Tablet - Cons?

• How limited are the presentation apps?

• Split screen, compare and contrast?

• Can it run synched video?

• Full creation and editing capabilities?

• Ability to run helper apps?

• Ability to run native files as natives?

• Ability to transfer data via USB?

• Ability to store all evidence locally?

• Touch screen -- how precise?

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Trial is the culmination of everything your team has been working on for several years:

• Every client meeting

• Every pleading and letter

• Every document reviewed and produced

• Every deposition, motion, conference

• Every billable and non-billable hour

• Every matter-related expense

Recap on perspective:

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Questions

We’ll now open it up for questions

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Thank You!

Mobile Technology for the Courtroom: The Curmudgeon's Counterpoint

© 2006 - 2014 James Berriman, Esq. Chief Executive Officer, Evidox