| - By Daniel R. Miller and Ted Brooks, Article for the Daily
Journal Corp. Verdicts and Settlements
In Minority Report, an action-detective thriller set in Washington, D.C.
in 2054, actor Tom Cruise plays a police investigator who uses a dazzling
array of high tech video gadgetry in a "virtual courtroom" setting
to convince satellite-conferenced judges to issue arrest warrants for
murderers before they commit their crime. By arresting the criminals before
they act, crime is effectively eliminated.
Sound far-fetched? While eliminating the "actus reus"
(physical act) element from criminal prosecution is not likely to occur
any time soon, the advent of high tech video gadgetry in the civil courtrooms
is moving at warp speed and producing some amazing results.
Witness the recent $975 million settlement in Western MacArthur Co.,
et al. v. U.S.F.&G., et al. The settlement, reached after nearly
three months of trial in Alameda County, is one of the largest asbestos-related
settlements ever made. Pursuant to the terms of the settlement, St.
Paul, the successor by merger to U.S.F.&G., has agreed to pay
the $975 million to resolve approximately 20,000 underlying personal injury
asbestos cases filed in Alameda County from approximately 1982 through
present (and for additional future claims).
Plaintiffs were represented by Faricy & Roen PC, Brobeck, Phleger
& Harrison LLP, and Miller, Starr & Regalia. To deal with the
massive amounts of discovery and the daunting task of trial presentation,
plaintiffs' counsel turned to Legal Technology Consulting and Ted Brooks.
By the time trial started, the courtroom resembled a neighborhood Good
Guys store. There were twenty-three 15-inch flat panel monitors (10 in
the jury box, 4 at counsel tables, 4 behind counsel tables for supporting
counsel and staff, one in the witness box, and one for the judge), with
kill switches to disable the jury's view for unadmitted exhibits. In addition,
the parties used a 48-inch flat panel plasma display monitor behind the
witness stand for reference by witnesses to documents and other evidence.
Plaintiffs used Trial Director on InData Trial Server with Medea external
RAID drive, which produced total 300 GB drive capacity to present several
hundred exhibits, several days of deposition video and other evidence.
"The Judge (the Honorable Bonnie Lewman Sabraw) wanted to see the
trial like a movie, to blend plaintiffs' and defendants' evidence in a
way that was easily accessible and understandable to the jury," said
Brooks, who acted as the technological maestro in the courtroom. "Since
the life of the case (12 years) outlasted much of the technology that
was used at the outset, it was a challenge to make all of the technology
work. But in the end, we succeeded."
The behind-the-scenes "technology statistics" are staggering.
- 10 Trial Databases (not including several testing, export, import,
and case buildup databases)
- 105 GB digitized deposition video
- Combined video runtime: 13 (24 hour) days, 7 hours, 14 minutes, 44
- Combined deposition excerpt runtime: 2 (24 hour) days, 13 hours, 12
minutes, 53 seconds
- 2322 Deposition excerpts (not counting several hundred used for editing
- 100 videotaped deposition transcripts (not counting many taped but
- Nearly 900 demonstrative graphic exhibits
- 15.48 GB document data
- 164204 TIFF images (all parties, not counting hundreds of thousands
in case buildup data)
Amy Matthew, a shareholder with Miller, Starr & Regalia and one of
the plaintiffs' lead trial lawyers, had nothing but praise for the work
performed by Brooks and the technology team. "This was a case of
gargantuan proportion," Matthew said. "Our ability to effectively
communicate to the jury, to show the jury a mountain of evidence in a
format that they could understand and readily assimilate, was one of the
keys to this trial. Without our extensive trial databases and the cutting
edge technology used to communicate information to the jury, we would
not have achieved the tremendous settlement that we did."
So how does one approach what Brooks described as the "Technological
Mother of All Cases"? According to Brooks, the key is to work with
competent counsel early on, develop a usable database and use an excellent
software program, which in this case was Trial Director. "We agreed
to keep a standardized system (Trial Director) following a court order
that we were to combine plaintiff and defendant deposition video deposition
clips, and play them at the same time, more closely resembling a live
witness. This resulted in us (plaintiff) presenting approximately 80%
or more of the evidence, with very few "hard copy" documents
used during the entire trial. With thousands of exhibits on each side
of the table, to try to manage the evidence as paper simply would not
have worked in any efficient manner. The Court repeatedly complimented
the efficient and effective implementation of technology in the courtroom,
and noted how the jury was very focused when deposition clips or documents
were shown on the monitors."
At the end of the day, the cutting edge technology used in Western MacArthur
Co. may not have prevented the alleged wrongs that led to the filing of
the lawsuit, but it certainly contributed to capturing a huge settlement.
Back to the top
|- by R. Sam Gilcrist
NALSM VIEWS, National Association of Litigation Support Managers, Spring 2004
As case complexity increases outsourcing (arguably) enables law firms
to improve efficiencies, decrease costs, and utilize specialized skills
that may not be available with smaller cases. On the other hand, firms
lose the craftsmen's control exercised on smaller, less complex matters.
To maintain control of these complex, often partially outsourced cases,
measures need be taken to allow suppliers and consumers of legal services
to measure the quality of their work. This enables firms to maximize outsourcing
efficiencies while maintaining the level of excellence that clients expect.
To this end, I am presenting one simple, tested method for determining
quality, available to both the managing attorney and the supplier of legal
work. It produces a fact-based, reproducible measurement used to determine
whether the outsourced product meets the given standard of excellence
or whether the firm is dealing with a substandard product that needs to
Before we start, I would like to address attitude and the desire to excel.
I doubt there is a provider of legal data who knowingly produces anything
less than perfect workmanship. Yet in this world of imperfection, we know
errors are inevitable. We know that humans fall asleep, that machines
misread text. Because of inevitable errors, practical quality measurement
techniques need to be taken by the legal professional to understand the
true quality of the work they produce and use.
There are a number of ways to do this wrong, all generally listed under
the category of Quality Control, or "QC" as it is generally
known. Under this banner, well-intentioned firms advocate and implement
expensive, inadequate, and occasionally frivolous document inspections,
data checks and overall hand wringing that achieve no defensible objective.
One very common method of nonproductive QC is to check "a bunch"
of the work to make sure it is right. Worse is the firm who employs a
specialized person to check all or some of the work, all the while having
no proscribed technique to determine what to inspect, how much to inspect,
and how to determine whether to accept or reject the work in front of
them. In both cases time, effort and money flow freely down a drain, while
no value is added to the product and no meaningful work is done.
Having taken this shot at my well-intentioned colleagues, it is time
to describe a system that data providers and consumers can use to prove
that they have produced the high quality work promised. Additionally where
conflict arises, it can be used to defend or refute work quality either
in court or at the bargaining table. Having promised to deliver, let me
introduce - or perhaps reintroduce - the legal industry to one of oldest,
simplest methods to measure work quality, namely MIL-STD-105.
MIL-STD-105 (pronounced "mil standard 105") has been a manufacturing
standard since World War II. Moreover, since it is straightforward and
easy to implement, it maintains a stalwart position in modern MBA operational
science courses, along with the more theoretical and statistically complex
theories that make this simple system work.
MIL-STD-105 has two defining features:
1. It is easy to use.
2. It is repeatable and defensible.
Originally the standard was designed to create a non-arbitrary, meaningful
and repeatable method of determining whether products supplied to the
U.S. Armed Services met agreed quality standards. As in many situations,
the services reduced the complexity of quality measurement into two simple
tables that are both easy to use and technically concise. However, to
implement this standard, several terms need to be defined.
- ACCEPT QUALITY LEVEL (AQL). This is the standard of perfection to
which both the supplier and producer agrees. It originates as a percentage
of expected quality, such as 97 to 99.999 % compliant, and is quickly
translated into the number of defects (or errors) that will be allowed
in a batch of work before the whole batch is sent back to the producer
for rework (presumably at the producer's expense).
- ATTRIBUTES. This is probably the most misunderstood term in quality
measurement. Attributes are the measurable features that define the
product. In the case of a 12-foot long 2x4, measurable attributes would
include the height of the board (2 inches), the width of the board (4
inches) and its length. In the legal world, measurable attributes might
include coded fields, data extracted, or text legibility.
- DEFECTS: These are any deviation outside of the standard set
for each attribute. In the 2x4 example, the actual standard may state
that widths greater than 1.75 inches or less that 1.5 inches are not
acceptable (i.e., defects). In legal work, a defect could include a
misspelled name, a missing field entry, an incorrectly entered data
item or an image that is not accessible or useable.
- LOT SIZE: Lot size is the quantity of items produced. It might
be 130,000 pages imaged or 50,000 docs coded.
- SAMPLE SIZE: This is the quantity of items to be measured, and is
determined by the Lot size and the AQL.
- ACCEPT / REJECT CRITERIA. This is both the simple strength of MIL-STD-105
and the characteristic that allows this standard to withstand cross-examination.
Based on the AQL established during negotiations, it explicitly states
the number of defects allowable in an acceptable lot of data or images,
or such, without losing confidence that the job is as good as expected
or, perhaps, as good as humanly possible. Conversely, it describes the
point at which statistical confidence is lost and the job cannot be
accepted. Rigid, fact-based Accept/Reject criteria, along with the predetermined
sample sizes, differentiate MIL-STD-105 from the well-intentioned QC
program described earlier.
With this standard, there are no "redo's" or "maybe I
should inspect a few more." The test is statistically sound and designed
in such a way that a minimum number of samples (i.e., a known, minimum
cost) can provide accurate and meaningful description of the over-all
quality of the work on hand. This does not mean that attorneys will not
debate the issue. (Heaven forbid for those of us who support you.) Rather
it provides a concrete, reproducible test that both the consumer of data
and the provider of data can implement to ensure themselves that they
are producing the quality of work expected and advertised.
Implementing MIL-STD-105, A Case Study
Having reviewed the merits of using MIL-STD-105, I would like to create
a simple, realistic case study that we can use to learn how to implement
the tool. As an example, let's assume the following:
- This is a coding job with 5 fields to be coded per document.
- There are 15,232 documents to be coded.
- The agreed AQL is 99.85%. That is there can be no more than 15 documents
with one or more incorrect entries per 10,000 documents. Finally this
correlates to a defect rate of no more than
0.15% (100.00 - 99.85).
- Finally, let's assume that we are dealing with a supplier, or internal
department, that has a history of good, but not perfect, work.
Using our example, before we review the first item, we need to make a
tactical choice: do we count each field individually, or do we count documents?
In the first case, our batch size would be 5 fields times 15,232 documents,
or 76,160 items in the batch. In the second the batch size is 15,232 documents.
In our example, I am really interested in how well each document is coded,
so I am going to choose to view the document pool as the batch. Having
made this decision, I am now required to look at each sample document
in its entirety, meaning that we as the inspect team will need to verify
that each of the 5 required fields is coded correctly. If any field is
coded incorrectly, then I need to reject the document. If they are all
correct, then the document passes.
Similar reasoning could be used to view each field as a single entity.
In that case, one incorrect field would be an error out of a batch size
Determining the Correct Inspection Level -
Table 1: Sample size code letters
To determine how many documents to inspect, we need to establish our inspection
level. In Table I, you will notice there are a variety of inspection levels
available including three general inspection levels and 4 special levels.
As in many cases, we will start in the middle and work outwards. According
to the American Society for Quality (ASQ), level II - called normal inspection
- is appropriate for unknown suppliers and for suppliers of modest quality.
Consequently, we will use this level in our example; however, the standard
is designed to be fluid, so inspection levels may change over time depending
on how the quality of the work changes over time. For example the ASQ
states that if 10 lots are inspected with no errors then sampling can
be reduced from normal level II to a reduced level I. On the other hand
if two of 5 jobs are rejected, then inspection should be tightened from
level II to level III until 5 consecutive jobs are accepted. Finally if
any job is rejected from level I, inspection automatically returns to
level II. The other levels, the special levels S1 - S4, are for very small
jobs, and in our case, we would be doing this work in-house, probably
reviewing everything in its entirety rather than sampling or coding.
Knowing the batch size, in our case 15,232, and our inspection level,
normal level II, we use Table I to determine the number of samples we
need to inspect. We find this by following down the left hand column,
until we find that 15,232 falls between 15,001 and 500,000. Reading across
the top of the table we find general inspection level II. Locating the
intersection of our row and column, we determine that our batch size is
"P." So how many is "P"? To answer this, we need to
make one more look up. With "P" written down on the back of
our hand, we go to Table II to determine the sample size as a real number.
By following down the left-hand column we see "P." Just to the
right of P, we find that we need to look at 800 documents.
At this point we can see why "choose a few" is totally inadequate
as a QC measure. From my experience, very few firms would actually review
800 documents to prove they are really 99.85% accurate. Most likely they
would review a few score and call it a day. Yet to have the kind of accuracy
demanded, 800 is the inspection size required. On the other hand, other
firms might attempt to inspect 15,000 documents. Eight hundred is a lot
less than 15,000, and makes for just as reliable an inspection for a number
of reasons, chiefly inspection fatigue.
Having learned our inspection lot size, and knowing that we are looking
for 99.85% accuracy (or a .15% error), we read across table II-A to 0.15
and find that in those 800 documents, we can find as many as 3 with errors
and still accept that job; however if we find 4 or more errors, then we
cannot state with any certainty that this job is good enough, and the
whole job needs to be re-done and resubmitted. The lines pointing up and
down indicate that if we are reading across and do not find a number in
our row, we either skip up or down to the numbers provided. This allows
one simple table to handle the very widest possible number of AQL and
sample sizes and still remain uncluttered.
Inspecting the Job
Knowing our sample size, the job of inspecting is very simple.
- Grab 800 documents at random. Review them to make sure that each document
is coded correctly.
- Record the number of error-free documents, and record the number of
documents with errors.
- Compare the results to the requirements of Table II-A.
- Accept or reject the job. That is if 3 or less documents with errors
are found then - correct the errors of course - and accept the job;
otherwise, consider the job as meeting standard, and ship it.
At this point we have completed our review of MIL-STD-105; however, there
are two matters left: gathering a truly random sample and record keeping.
Our first impulse may be to simply grab 800 documents, but this almost
always favors some attribute or person (like sampling only file boxes
on top and in the aisle). To prevent this unintentional skewing of the
results, there are a couple of simple ways to get random numbers. Before
computers, random number tables were commonly available. (Perhaps they
still are.) But today, with computers on almost every desktop, generating
a custom random list is fairly simple task that we can do ourselves.
Creating a Random Number Table -
Table 2: Single sampling plans for normal inspection (Master Table)
There are a number of ways to create random number tables, but you can
use the description below to create a custom, random number table in MS
Excel that admittedly it is not perfect, but it is certainly good enough.
USING MICROSOFT EXCEL:
- Type the random number function "=rand()" into the first
cell (A1). This generates a number between 0 and 1.
- In cell B1, multiply A1 times our lot size of 15,232 (=A1 * 15323)
to get a document or record number in the appropriate range.
- Copy A1 and B1, and highlight down 800 cells to get 800 random numbers
between 1 and 15,232.
We now have a valid random number table. The remaining steps are optional
but helpful in creating a functional spreadsheet that we can use as an
- Sort the list so that the numbers are in the same order as the documents.
This will make pulling the documents a lot easier. To do this we need
to turn the auto-calculate option off or else we will simply get another
unsorted list of new random numbers. (I did this a couple of times writing
this paper, so I know from experience.) To toggle auto-calculation look
under Tools>Options>Calculation and set the option to manual.
- After turning auto-calculation off, the list sorts correctly; however,
the list will still recreate itself each time we reopen the spreadsheet
or hit F9. This will completely destroy any traceability, which we will
need if we ever go back and review our inspect results. To freeze the
record numbers or DocID, one simple solution is to export the values
into the csv format and then re-import back into Excel or Access. This
erases all reference to the rand function and makes the numbers permanent.
(Optionally, we could have set the auto-calculate to not re-calculate
before save, but this strategy is too risky when dealing with records
we are going to retain for any period of time.)
- Either before of after we freeze the numbers, use the cell format
function to eliminate the decimal values. They don't mean anything in
our context, so they should be eliminated to avoid confusion. This is
done by selecting the column B and then setting the decimal places to
0. You can find this under Format>Cells>Number and typing 0 into
the decimal places box.
- Finally, don't forget to turn auto-calculate back on or else the
rest of your spreadsheets will not update like you expect. (This will
cause a lot of head scratching the first few times the spreadsheet doesn't
update as expected.)
Having gone to the trouble of creating and formatting a random list, we
might as well use it to record a few numbers. This will provide meaningful
traceability and a way to prove that we did what we said. In our case,
we already have the Document number 1-800. In another case this might
be a bates number or a DocID. In all cases it should be the unique identifier
that tells us precisely which documents we reviewed. From here we could
- Personal ID and client information: This would include the name (or
names) of the inspector(s), the date the results were tested and which
matter we are inspecting.
- Pass / Fail Results: Indicate any records that contain errors with
a check mark or perhaps with the inspector's initials. To avoid excessive
documentation, I would indicate accept as a blank.
- Error Description: This would include the reason for rejecting the
document, like "address misspelled" or "incorrect author."
This information is valuable for understanding typical errors and error
sources even when the project meets the AQL.
- Results summary: This would include number passed, number failed,
and whether the batch is accepted or rejected.
Having taken all of these steps - pulling the applicable number of documents
at random, reviewing the documents and recording our results - we now
stand ready to state with authority that the work we are producing or
purchasing meets a known quality standard. If there is a question about
whether the job should be reworked, the consumer and the producer of the
data can review the test documents and see the exact results of the original
testing. Finally, and hopefully in most cases, both the consumer and producer
of the legal service will have a meaningful, repeatable measurement that
proves the work product meets the level of quality expected. This, in
turn, is a vital first step in understanding and improving overall quality
for our clients.
The inspection measurement technique reviewed in this article is not the
most complete inspection tool available to modern litigation support managers
and attorneys. Moreover, there are valid criticisms of using MIL-STD-105.
The primary complaint is that it does not in any way improve quality.
It simply measures each batch pushed through the process. Still, this
standard has enough strength that it continues after 60 years of implementation
to remain a mainstay of quality measurement for several reasons:
- It is simple enough that it can be implemented with a very little
- The technique is valid on both big and small batches.
- The results are definitive rather than arbitrary, and
- The results are reproducible.
In summary MIL-STD-105 provides a simple means of measuring quality on
a day to day basis without involving complex math or training, while at
the same time creating a just and reproducible quality measurement system
that employees and clients can understand.
*Quality Council of Indiana. Terre Haute, Indiana. The Quality Council
of Indiana provides a definitive and useful guide for serious students
of product and process quality who are interested in passing upcoming
ASQ exams. They are found on the web at www.qualitycouncil.com.
* American Society for Quality (ASQ) is a professional association "advancing
learning, quality improvement and knowledge exchange to improve business
Additionally they provide examination and testing for nationally recognized
certifications such as Certified Quality Engineer, Certified Quality Manager
and several others. They may be found at
* MIL-STD-105E is available through the Navy Publishing and Printing
Service Office and is sold by any number of technical publication vendors.
You can also locate various editions of the standard in PDF by running
a search on http://assist.daps.dla.mil/quicksearch.
R. SAM GILCRIST is an independent litigation technical consultant who
does trial work through Litigation Tech and who does computer consulting
and e-discovery consulting through Gilcrist.com. He is completing a BS
in Computer Science and holds a BS and MBA in management from Georgia
State College, Augusta. You may reach Sam for trial work at
or for computer programming or further information on forensic production
Back to the top
- by William B. Smith and Robert J. Waldsmith
Print This Article
All trial lawyers recognize the importance of demonstrative evidence to keep jurors interested, thereby increasing the likelihood that they
will retain the information. With this in mind, the means to visually persuade jurors continues to advance. Simple white pads and a magic marker
in the 1970s evolved into storyboards in the 1980s, followed by a DOAR/Elmo machine in the 1990s.
Today, computer programs and sophisticated projectors or plasma screens allow trial lawyers to efficiently present numerous photographs, video
clips, documents, x-rays, CT Scans, MRIs, and Power Point-type themes to the jury. The ability to control and organize so much evidence through
such trial software gives lawyers the freedom to show juries more information in less time. This increases the trial lawyers power to persuade.
|William B. Smith and Robert J. Waldsmith, with the law firm of Abramson & Smith|
Trial Consulting and
Courtroom Presentation provided by Litigation-Tech LLC
Your jurors appreciate and expect it
Most jurors today were raised watching television. They rely less on hearing the spoken word and trust their own eyes to learn and to retain
information. They are impatient learners and want information as quickly as possible. The electronic trial is the perfect way to teach these jurors
and it keeps them from being bored.
Jurors are used to learning from news programs, such as 60 Minutes
and Dateline. Fewer people today listen to the radio for their information, and most people are not trained to retain information received
in a pure verbal form.
Jurors also have a preconceived idea of how a trial should go from the endless television shows and movies that include scenes of a trial. A
one-hour television show contains approximately 44 minutes of the story, after all the commercials. On television, cases are tried during that
limited time frame, with closing arguments taking only 10 minutes. With this in mind, trial lawyers should keep their cases as short as possible
and should pepper their examinations with as many visual aids as possible.
It allows you to overwhelm your opponent
Trial is a credibility race and the sooner you can convince the jury that your position is the more reasonable one, the better. The time-tested
psychological concepts of primacy and recency still work. That is, jurors tend to believe what they hear first and remember what they hear last.
The electronic trial allows you to do both. It gives you the freedom to flood the jury with visual evidence that is favorable to your case.
You will be able to identify and offer exhibits faster electronically than by the traditional methods. If this is done in an orderly manner,
your theme will be presented in a way that will be believed long before your opponent can rebut it. If your opponent does not rebut it visually,
it will be very difficult to overcome.
By repetition of your key visual evidence during your case, your opponents
case and during argument, you also can have a psychological advantage of recency.
Recently, we tried a quadriplegic case in 18 trial days in Contra Costa
County (Shropshire v. City of Walnut Creek). We represented
a diver who collided with a female synchronized swimmer when he dove off
a three-meter diving board at a public dive pool. In the short time it
took to try the case, we identified approximately 150 exhibits (documents,
photos, video clips, and Power Point summaries of experts opinions).
We never would have been able to handle so many documents so quickly if
we had not presented them electronically.
It is an effective way to overcome juror bias
The press and late-night television comedians have programmed jurors
to believe that most lawsuits are frivolous, that trial lawyers are evil
and that plaintiffs should take personal responsibility for their own
injuries instead of having the audacity of blaming others for their misfortune.
These preconceived notions affect every jury pool and they are the subject
matter of continuing legal education programs on jury bias.
It is the job of a good trial lawyer to overcome this bias against plaintiffs
and trial lawyers. There is no better tool than the electronic trial to
accomplish just that.
Shropshire v. City of Walnut Creek a complete electronic
The Shropshire case was tried before Judge Steven Austin in
Contra Costa Superior Court for four weeks in April of this year. It involved
a college diver from U.C. Davis who became a quadriplegic at the dive
pool at the Clark Memorial Swim Center at Heather Farm on July 6, 2000.
The pool was owned and operated by the City of Walnut Creek. Mr. Shropshire
(age 20) visited the dive pool that day to teach two beginning diving
classes for his UCD diving coach, who was an assistant coach for a diving
club (Diablo Divers) that rented water time at the dive pool. After he
finished teaching, Mr. Shropshire joined the Diablo Divers in their continuing
practice and worked on his own dives under the supervision of the head
During one of Mr. Shropshires dives off the three-meter board,
a synchronized swimmer, who was sharing the pool, unexpectedly left the
side of the pool beneath his board and swam directly into his landing
area after he had left the board. His head collided with the swimmers
right hip area and he became an immediate C4 quadriplegic.
The plaintiffs theory of liability was that the City created a
dangerous condition in the dive pool by scheduling two inconsistent aquatic
activities (diving and synchronized swimming) in the same pool for practice
without any means of physical separation, without lifeguards and without
any rules regarding shared-use safety. The city rented water time to a
synchronized swimming club (Walnut Creek Aquanuts) and the Diablo Divers
and it left it up to the two clubs to work out safe shared use. As part
of their practice, the synchronized swimmers enter the diving area to
perform routines and to swim laps.
The plaintiffs expert testified that the swimmers should never
enter the diving area during diving practice since that creates the risk
of a diver/swimmer collision. The diver vs. swimmer hazard could easily
have been avoided by setting up schedules so the two groups were not in
the pool simultaneously. The risk of encountering such a hazard could
easily have been reduced by ordering the clubs to use the available floating
lane line as a barrier.
Can you afford it?
There are two ways to do an electric trial. The most expensive way is
to have a computer consultant in court operating the system. A good computer
consultant can cost between $150 to $200 an hour. The least expensive
is to have a computer consultant scan all of the documents, photos and
videos into a computer program, such as Trial Director, that organizes
the evidence and allows you to present the exhibits during the trial.
You might want to take a hybrid approach and have the consultant in court
for the most important witness, your opening and/or final arguments.
Trial Director can number your exhibits and generate bar codes for quick
recall with a bar code reader. You also have the ability to call up any
exhibit by number as quickly as it takes to type in the exhibit number.
The days of fumbling through a large stack of corkboards in the corner
of the courtroom are over.
The necessary equipment includes a laptop computer, a projector and screen
or flat panel monitors, smaller flat panel monitors for the witness, judge
and counsel, speakers, and routing switches (to allow presentation to
the witness, judge and counsel without showing the exhibits for identification
to the jury). This equipment can be purchased or rented. The companies
that rent the equipment also can install it, test it and remove it for
What steps do you take to prepare?
Gather all possible exhibits and have your computer consultant scan them
into a program like Trial Director. Do not start scanning until you have
all of your exhibits selected and in order.
The exhibits to scan are documents, photographs, diagrams, x-rays, CT
scans, MRIs, demonstrative evidence, video depositions and videotapes.
Everything, including animations, can be shown through a program like
Trial Director. There is no further need for a videotape or DVD player.
Make sure you put all of the exhibits in a notebook, and make hard copies
for the court and opposing counsel. All video clips should be given their
own exhibit number, placed on separate CDs and put in pouches in the notebooks.
This will ensure that you have all of your exhibits ready for any appeal.
Put an exhibit list in the front of each notebook and as exhibits are
received in evidence, it will be easy to check them off so you and the
court have a clear record of what has been received.
Advantages of electronic presentation
The persuasive use of a document. In the usual case, the jury
does not get to see the documents the way the witnesses and lawyers do.
They are outsiders. In an electronic trial, however, the jury sees everything
as it is used. More importantly, the computer allows you to zero in on
that key paragraph or phase and lift it right from the page instantaneously.
In fact, as you read it with the jury, it can be highlighted or you can
produce a second slide that is already highlighted.
Think of how documents are used on television shows like 60 Minutes
or Dateline. You never see a dry document. The directors of these
shows make these documents come alive so the audience can easily follow
them. This dramatically increases your ability to persuade.
Video impeachment. This is very effective. Of course, you need
digitized video depositions to do this. Always do video depositions of
key witnesses and order an ASCII disk from the court reporter. Whenever
you show the jury any video deposition, you should have the video synchronized
to the ASCII version so the jury can read along as the witness testifies.
This keeps the attention of the jurors.
The best way to do the impeachment is just like you otherwise would,
i.e., bracket the areas of the deposition where you expect the witness
to move away from his or her testimony. Have these bracketed excerpts
ready to go ahead of time with your consultant. He will create video clips
with the bar code next to each one of them. Then, once you have heard
the witness change his/her testimony in court, do the usual process of
commitment and glorification of the deposition and then ask that the video
deposition be played after you give page and line. With a little practice,
this can be done smoothly and there is nothing better than the drama of
having a witness impeach himself or herself on video.
An in-court video consultant can search for impeachment if you do not
have it preselected. The disadvantage of this is there can be some delay
that can possibly ruin the impeachment. The jurors will get spoiled very
quickly, and any delay in the electronic presentation of evidence will
seem like an eternity even though it probably would have taken longer
to do it in the traditional manner.
Remember that the deposition of an adverse party or that of an officer,
director or managing agent of an adverse party can be played for any purpose
at trial. (CCP §2025, subd.(u)(2).) You can play bits and pieces
of the video deposition at any time you want and it can be very helpful
in a long trial to remind the jury about a witness who did not make a
good impression. Revive that critical witness to cross-examine the defense
experts and to refresh the jurors recollection about key portions
of deposition testimony.
Demonstrative evidence slides. Instead of writing on pads and
a board, consider creating the same thing on a colorful slide that can
be shown during the examination of a witness. For example, in the Shropshire
case, risk management was a key concept. We created a simple slide that
said Risk Management at the top. Below that we had a very
simple formula that said H + R = DC. This formula meant Hazard
+ Risk = Dangerous Condition. We used this over and over again in
the case to convey our theme that the citys aquatic director was
not doing his job. We also used this slide with our expert to show how
eliminating the hazard and/or reducing the risk can prevent a dangerous
Anatomical diagrams also can be used to support medical testimony. Charts
can be used to support the testimony of a vocational rehabilitation expert.
You can always create demonstrative evidence that you prepare with your
expert, regardless of the testimony subject matter.
Slides to summarize an experts opinions. Expert testimony
is often confusing and boring. A visual slide of the experts opinions
is very helpful, especially when dealing with numbers. Consider two to
three slides to outline the key opinions of your economist. You may even
be able to offer it into evidence (which happened in our case).
Slides for opening statement and final argument. Again, you can
convey much more information in a more attractive and persuasive manner
by creating slides ahead of time. You can outline the key facts for your
opening statement and with it you could weave in photographs, diagrams
and videos. One advantage of this: you might not need any notes from which
to give your opening statement. You can also get the jury involved visually
at the earliest possible moment. Its common belief that you can
win your cases in opening statement, so this is the time to use your visual
In the final argument in Shropshire, we used many more exhibits
than we would otherwise. This included the documents in evidence and slides
that we made up for argument only. One powerful type of slide is one that
compares the opinions of your expert with that of your opponents.
You may be able to show that the opponents opinions are not that
different from yours or you may be able to highlight how unreasonable
they are. You are limited only by your imagination and creativity.
Will the court allow it? Do not forget that you need to inform
the court of your desire to transform the courtroom. You need to move
your equipment into the courtroom at the end of the preceding week. If
that is not possible, you have to make other arrangements.
It is wise to discuss this at the Issue Conference with the judge and
opposing counsel. The court will provide you with the requirements and
can schedule the set up. The court will not allow two sets of equipment,
so if your opposition plans to use similar equipment, the cost can be
cut in half.
Seeing is believing. You can overcome juror bias with a good visual presentation
of the documents and photographs that will help you re-level the playing
field. Electronic trials take a lot of planning and they can be expensive,
so you have to carefully consider whether your case is an appropriate
one. Rest assured, the jurors will appreciate it and once you do an electronic
trial, it will be difficult for you to try your next case in the old-fashioned
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- Over 100GB of Video Synchronized in Less a Week
Print This Article
Ted Brooks, President of Litigation-Tech LLC recently was challenged to prepare a 7-year old case for trial in less than a week. The case,
involving a major sports team, had lingered, like many cases, until the last minute. Now, Ted and his team were faced with building a trial database,
digitizing and synchronizing approximately 150 hours of deposition video, and creating clips for 38 absentee witnesses.
With a great deal of experience in preparing sophisticated cases for trial, Ted knew that it was not in his or his client's best interest to
spend his firm's time synchronizing depositions. He turned to YesVideo, the world leader in digital media on demand.
YesVideo's YesLaw, is a combination of product and service that gives the user immediate access to all elements of the testimony. Each videotape
is synchronized with the reporter's transcript and returned on a YesLaw CD. The CD includes software that allows the user to review the video,
create clips and export them to presentation programs.
"In trial preparation and courtroom presentation nothing but 100% accuracy will do," said Mr. Brooks. "Every tape was returned
absolutely perfect. We were able to create more than seven hours of video clips (several hundred deposition excerpts) quickly and efficiently. We
could never have done it without YesLaw. A case of this size and complexity could easily take nearly a month to prepare."
"The lead attorney, a senior member of a major Bay Area firm, was thrilled with our ability to pull this off with so little time. YesLaw
helped us accomplish what would otherwise have been impossible."
Litigation-Tech is a San Francisco-Bay Area company specializing in trial consulting and litigation support services. The company is one of only
a very small handful of legal technology firms in the nation recommended by both Summation and InData (TrialDirector). Cases, such as the one mentioned
here, have impossibly demanding deadlines and require extremely accurate and effective management. Litigation-Tech has repeatedly demonstrated
this ability, and has thus earned the highest level of respect in the industry. More information about Litigation-Tech is available at www.litigationtech.com.
YesVideo, Inc. is a privately held company that is the global leader in digital media on demand. Founded in 1999 by Sai-Wai Fu, a pioneer in digital
video compression technology, YesVideo launched the YesLaw service in December 2002. YesLaw offers a high quality, affordable service to solution
to the problem of synchronizing and editing videotaped depositions. YesLaw enables legal professionals to easily review depositions, identify key
testimony, create and export clips, and present them at trial, mediation, and settlement. Headquartered in Santa Clara, California, YesVideo operates
the world's largest video-to-DVD/CD transfer facility, servicing over two thousand distributors including Kodak, Fuji, Sony, and Konica. More
information is available at www.YesLawCD.com.
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| - ABA Lawtech Board
| It appears that there
are in fact ways to: 1) rename the files; 2) combine the files; and 3) use
a lit support software to actually manage all of the docs in a database.
The main issue now, as some pointed out, is to determine exactly what
I want and need to do with these files. It turns out that there are more
than 17,000 pages produced, much of which I am sure is irrelevant and
provided to waste my time. Many of these files (at least what I have glanced
through so far) appear to have been scanned from hard copies and to have
been manually Bate Stamped before being scanned, but I will keep in mind
the suggestion to check into their electronic archival systems. I am sure
that I will need to use some or even many of the documents at trial, but
I suppose that I may want to worry about renaming and organizing only
the ones that I actually need to use and not be overwhelmed by the sheer
number at this point. Maybe even renaming and sorting docs into new directories
with name of directory describing docs inside.
My more immediate concern in deciding what I need to do is to determine
how to best review these documents. The problem that I have is that it
is much easier to cull through stacks of hard copies and set aside the
irrelevant material than it is to view these pages on my computer screen
one page at a time (which is a problem I have with attempting to create
any sort of "paperless" office- although I have heard some say
it is beneficial to at least create a "paper less" office instead).
I am thinking that one option is to simply pay for them to copy each of
the originals and provide me with hard copies; then I have the best of
I normally deal with several thousand pages per case, but 17,000+ that
have been produced in electronic form threw me a little. How do those
who deal with this many discovery documents usually deal with them? I
feel like I must be reinventing the wheel here.
In response to your question regarding dealing with a large number of documents,
in addition to the oft-neglected possibility that you may indeed actually
end up in trial with all of this leads me to ask you to consider how do
you intend to present those documents during trial? You have two basic options,
those being binders and paper, or electronic.
One of the problems I run into (as one who prepares the trial presentation
database and then presents it court, allowing the examining attorney to
simply request exhibits for display) is that often the means ignores the
end. That is to say that improperly identifying the documents at the time
of imaging will often require the trial exhibits to be re-scanned in preparation
for trial. This is a problem encountered often as a result of a general
lack of understanding of (and/or, understandably, concern for) database
structure/organization on the part of the scanning vendor and/or counsel.
This can be avoided.
First, you must identify each and every document with its own unique
numbering (e.g., Bates). Failure to follow an organized, accurate, and
non-duplicative numbering system will simply cause the database to be
unmanageable - particularly with larger volumes of documents.
Second, document breaks (where one exhibit ends and the next begins)
must be determined prior to imaging, and every effort should be made to
respect those breaks during depositions. Failure to do so will cause many
fragmented versions of the same whole document, thus unnecessarily increasing
the size of the database, while greatly decreasing manageability.
Finally, your case, as any other, is unique. Since you have received
the documents in an electronic format, there are likely load files either
included or available on request. This would enable you to directly load
the documents, with their breaks and associated numbering directly into
a database, such as Summation. Then, you would have the advantage of having
those documents already organized for you. It is likely that you would
be able to identify the logical structuring in place, and work from there.
I would encourage you to include each and every image available. You never
know what you might be able to find later in a search. An OCR (Optical
Character Recognition) process may be run on the database, allowing you
to search every document's text. This process would also assist you if
you do prefer to work with hard copies, in that from looking at a hard
copy, you would be able to quickly locate a document according to the
Bates number or other text, which you could then search to locate within
Then, should the matter go to a Hearing, Arbitration, or Trial, you will
be able to easily transfer and utilize the documents and work-product
you have generated in order to present your evidence electronically using
TrialDirector (or other trial presentation software), as opposed to a
less-efficient hard-copy trial.
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| Has anyone had experience (good or bad) with using PowerPoint at trial? I have looked
into it and it seems like with the way things change at the 11th hour, PP would not be the best way to go. Can anyone share their thoughts on this?
| I have read all of the replies listed before mine, and am compelled to add my thoughts
as well. The purpose, function, and product of technology in the courtroom are maximized by using the right tools for the task. There is no "one-size-fits-all"
solution, and legal professionals should never attempt to operate in that fashion. It is amazing to find how many free or low-cost "solutions"
are used (or attempted) within this industry- the same industry with a reputation of charging exorbitant rates for its services. That said, I offer a few
Trial Director www.indatacorp.com
Trial Pro www.trialpro.com
Visionary - www.visionaryinfo.com
Ted Brooks (firstname.lastname@example.org)
Litigation - Tech LLC
415-291-9900 / 415-291-9930
PowerPoint offers many features and possibilities to the power-user. If you are not a power-user and experienced visual communicator, and you
are preparing a trial presentation for your client, you should consider utilizing in-house litigation support services, hiring someone, or contracting
with a vendor, in order that you may clearly communicate, in a visual format, to a jury having little or no knowledge of your issues. PowerPoint
is often the tool of choice for creating and presenting demonstratives, including timelines, charts, and the like. It is not designed as a trial
presentation package. Although often used from within or together with a trial document presentation database, it does not have the fortitude
or functionality necessary to offer a complete trial presentation alone.
PowerPoint power-user tip #1: You may produce a graphics file, such as a jpeg, from a PowerPoint presentation by using the "Save As"
option, and then selecting a graphics file format. For a higher quality image, consider using a tool like "Snag-It".
These are the tools you will need in court. Each has its own merits and faults, and your selection should be based upon your familiarity with
databases, software experience, graphics/presentation experience, and organizational skills (with respect to large quantities of several different
file types). I will not offer comparisons- you will have to run the demos yourself. These tools will enable you to go far beyond the slide-show
presentation (or worse yet, the dreaded "paper and exhibit-binders trial"), offering a very efficient method of storing, organizing,
and presenting documents and videotaped depositions. They will also enable you to quickly perform electronic highlighting, zooming, and several other
operations, which can be then displayed, or even saved as a graphics file, which could then be produced as a poster blow-up. Referring back to organizational
capabilities, these applications can create barcodes, which can be set up in the likely order of presentation, but can easily be randomly accessed,
breaking away from the linear structure of PowerPoint.
PowerPoint power-user tip #2: You may select any PowerPoint slide randomly, during a presentation, by simply typing in the number of the slide, then
hitting the "Enter" key.
|Once again, if the level of expertise, or extra time for development is not available, look to others for assistance.|
Nothing is more embarrassing than to be in court, frantically trying to locate the right document to display on the screens. Preparation and rehearsal
are key factors, no matter which method you choose for evidentiary display. Last-minute changes must always be the exception, and not the rule, or expectation.
Often, a cross-examination is prepared along two separate paths- one for witness answer "A," the other for answer "B." Having
the "right tools for the job" will help make these "exceptions" manageable.
Up to 85% of visual evidence is retained by a juror. No other format comes close. It has been said,
that to offer the client anything less than the highest level of technology available, is to risk being accused of malpractice.
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When I first decided to get into the Vendor side of the Legal Industry
it was on the simple advice of a close friend. His words of wisdom were
as follows: "Medicine & Law are the only two industries that
will forever remain recession proof." Since I passed out while dissecting
a frog in my 8th Grade science class, it should be obvious which path
I chose to pursue!
I began my career advising lawyers of all shapes & sizes on the benefits
that automation could have in their firm. Whether it is Time & Expense
Billing, Document Management or Workflow Processes, the need to streamline
is in the now, not the tomorrow. While some of my prospective clients
passionately bought into this "electronic" school of thought,
others simply limped on down the road of "Big Chief Tablets"
and "Scrap Paper Work flows." To say the least, it was and has
continued to be, a most bittersweet pursuit to convince such intelligent
and forceful leaders to buy into the simple premise of faster is better!
It really is based on sound human logic. Would you rather walk to school
both ways in the snow with no shoes on or being a person of sound body
and mind, prefer a quick ride over on a school bus? The reality of the
legal industry is, that while most attorneys, large and small, are more
than willing to bill out at ever inflating service rates, these same attorneys
balk at the idea of spending money to improve their own internal processes.
Although moving your practice from the stone age processes of hard-copy
files and warehouses full of file boxes, into the more current "E-efficient"
models may not seem sexy, it will provide you with a more effective way
of tracking your massive paper trails that can no longer be ignored!
So, what is Document Management and is it really a cure for the paper
cancer? Webster's defines document & management as follows:
A written or printed paper that bears the original, official, or legal
form of something and can be used to furnish decisive evidence or information.
The act, manner, or practice of managing; handling, supervision, or control:
management of a crisis.
For our purposes we should look at document management as the task of,
or the practice of managing, handling & supervising pieces of paper
that might contain the so-called "smoking gun" that would not
only allow us to secure a multi-million dollar verdict for our clients,
but also put us well on the road to that beachfront property that we've
been eyeing for years. This might seem like an extremely oversimplified
conclusion. But is it really? I think not! Why do we need to complicate
the issue, when it is really not that complex at all?
The comparisons I mentioned before might seem a little far-fetched but
the analogy is really not that far off. The old school ways of sending
a paralegal down to a broom closet searching for that "needle in
a haystack" document are thankfully over. Litigation professionals
from top to bottom are now realizing that their time can be used in much
more "revenue driven" areas, instead of spending hours and sometimes
days or weeks searching through un-marked boxes of discovery documents.
Technological advances over the past decade now afford us the capability
of retrieving these documents in a matter of seconds. With the simple
processes of imaging and coding your documents, you will now have the
ability to share these "treasures" globally to your entire staff,
as well as outside counsel or anyone else who is on a "need to know"
basis. The technologies available today afford you the potential of handling
these issues with several different solutions. Browser-based applications
will allow you to store these documents on-line which then allows you
instant access from any Internet capable computer in the world, at a very
cost-effective pricing schedule. These databases(s) are password protected
so you don't need to worry about your sensitive data getting into the
wrong hands. You can also go the more traditional route and capture these
documents to CD. The only problem here is the increased likelihood for
loss of content. In other words, CD's are very easily mis-placed. I tend
to lead my clients towards storing these documents on-line because of
the efficiency and ease of use, but you really can't go wrong either way.
The American Bar Association estimates that by 2010 there will be 20%
fewer attorneys practicing in the US than there are today. Which 20% do
you think will go away - the ones who invest heavily in proven
productivity-enhancing technologies like Document Management, or the wait-and-seers
who say the Internet is a fad? More importantly, which side of this equation
do you want to be on?
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originally written as a reply to an online discussion; Article by Ted Brooks
I have the unique perspective afforded me by my previous employment
at one the country's top technology law firms, as well as from my current
status as a Legal Technology Consultant. Although much of this was transparent
and simply "part of my job" while employed as an in-house Litigation
Technology Consultant, I can now say I have seen the Consultant role come
around full circle. I have always been of the mind that there are many
solutions to every problem. The real "problem" is not necessarily
that which needs to be immediately accomplished, but rather gathering
enough information regarding the current need along with potential solution
options, and then pulling it all together to successfully tackle and complete
a given project. Hence, a very real project LTC recently took in, as a
case-in-point: Although we (Legal Technology Consulting) focus our core
business on trial-related preparation, support, and presentation, having
a great deal of in-house experience (and reputation) has brought us much
of the more typical "Litigation Support" type of work. That stated, a
short while ago I received a rather frantic email, asking me if I could
help out on a major database project, which was viewed as critical - given
that the project was now a few weeks old (already far behind schedule),
and had gone nowhere. I wish not to imply anyone did anything wrong from
within the law firm, but simply to suggest that perhaps there was not
sufficient information gathered to make a well-informed decision, resulting
in failure to complete the project in a reasonable, timely manner.
It seems that a particular database application was chosen, based upon
the fact that at one time, it was a very effective method of performing
certain tasks. Unfortunately for those steering the ship in this project,
the application had been abandoned sometime ago, having not been maintained,
supported, or upgraded for months. To add the "insult to injury,"
an unqualified vendor was chosen for document scanning and creating database
load files, which are essentially the building blocks of a litigation
database (read: bad files = bad database). This combination, though somewhat
profitable for us, could have been avoided. Not to say LTC or some other
qualified consultant should not have been involved, but rather to say
that it could have been a lot less stressful, and running on a better
timeline had the right decisions been made the first time.
My point? I agree with at least a portion of an earlier post on this
topic, that the money you think you might be squeezing up front may pale
in comparison to what it takes to correct a "situation."
The bottom line: Regardless of whether or not you choose to engage a
consultant, remember it is your client who is affected by your decision
to utilize or reject the opportunity to locate and employ the best possible
solution for the task.
The progress report: We have been able to fix the issues, and have gotten
the project back on track. We have also identified a scanning vendor's
shortcomings, which will likely cost them in the future- remember, they
represented themselves as capable of taking on the job. As a result of
our continually offering solution options, along with suggesting preferred
methods, we will likely see more of this type of work from this firm (and
in fact, have already begun another similar project for them).
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|The Options: Paper v. Digital
It has been said, "Documents are the lifeblood of the Legal World."
Through the years, the trees have cried out for justice- or at least maybe
for a better way to deal with the massive quantity of documentation handled
by lawyers, paraprofessionals, and staff, in preparation for and presentation
of legal matters great and small. Additionally, the court system itself
is working very aggressively in adopting the use of digital document presentation,
and encourages using alternatives to paper-shuffling in court. One of
the main reasons for this motivation appears to lie within the efficiency
of the digital document trial, allowing exhibits to be displayed to all
parties simultaneously, highlighting and zooming in on any given selection,
at any given time, as opposed to having several binders passed to and
from witnesses, Judge, jurors, and Counsel.
Where to Begin: Existing Databases
This entire process has evolved rapidly through the past few years, as
has the hardware and software required to prepare it and bring it to court.
In many cases, existing databases, some originally developed several years
ago, must be utilized in preparing the exhibits for trial. In some instances,
much of this data is unusable. However, every effort should be made to
avoid duplication of labor whenever possible.
How to Begin: Exhibit Identification
In preparation for trial, whether reviewing a wall of file boxes containing
paper documents, or running complex Electronic Discovery (E-Discovery)
searches on hard drives or other media, the goal is to cull a large universe
of documents down to a manageable size, selecting and including only the
most valuable documents for inclusion as Trial Exhibits. Since it is best
to begin this process early for numerous reasons, even before exhibit
numbers are assigned, a method of identification should be employed at
an early stage of preparation. There is an alternative to assigning exhibit
numbers to documents that are identified as valuable to the case.
When to Begin: Trial Database Development
That is to begin assigning the documents a temporary point of reference,
such as a file name. Even though it may be too early to assign an exhibit
number, it is never too early to pass the documents to a database developer
to place them in an organized, searchable format. This then can rather
easily be converted to trial exhibit numbers, by simply adding and completing
a cross-referencing database field.
The Trial: Exhibit Presentation
When this is all done properly, it is very easy and efficient to bring
any trial exhibit to the courtroom monitors within seconds of the request.
Even better is the prepared argument, with exhibits, demonstratives, and
even deposition video clips, using barcodes and/or numbering systems to
retrieve the materials. Often, particularly in instances of impeachment,
all the preparation in the world will not uncover the "Golden Nugget."
When the witness does impeach himself, the document must be available
instantly upon request. Thus, the cross-referencing exhibit numbering
systems are very valuable, and worth every minute devoted to their development.
No matter which method(s) you choose to employ, try to avoid pondering
how it might have turned out with better and earlier preparation. It simply
is not reasonable to pass a huge volume of documents to a Legal Technology
vendor or other Litigation Support person two or three weeks away from
trial. Although many miracles have been pulled off, it is certainly not
a prudent way to operate. If there is even a remote chance your case will
go to a hearing, mediation, arbitration or trial, any time it takes for
preparation to that end is time well spent. Even in settlement talks and
smaller hearings, it can make all the difference in the world if you show
up with the sledgehammer, ready to go to battle. The intimidation and
showing of your preparedness for trial can have a strong impact on your
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