Jolt - Richmond Journal of Law and Technology

If you find yourself with some free time - well h here's one way to fill your calenders - The linked publication is a student-run law journal housed at the University of Richmond School of Law. JOLT was first published in 1995 as the first exclusively on-line law journal and has continued to publish articles on the intersection of law and technology for over ten years. JOLT is available online, free of charge, to anyone who visits the website....Each year, they publish an issue dedicated to the emerging issues in Electronic Discovery. The most recent annual survey focuses on the recent changes in the federal rules and contains six articles from authors with various perspectives on E-Discovery


Just click on the title above to go to JOLT

Top Ten Tips for Choosing Trial Presentation Software

There are some things in life you can't choose -- your birthday, your shoe size, who your daughter marries ... But when it comes to trial presentation software, the choice is up to you. Gulp. Trial consultant Timothy Piganelli understands that this choice can seem daunting so we asked him to provide his top ten tips for choosing trial presentation software. From features to stability to learning curve, learn what the modern litigator should know before taking the trial presentation software plunge.

INTRODUCTION

Although there are far less choices when compared to litigation support software, choosing trial presentation software may not be as easy as you think. Trial Presentation software is typically used on a "stage" in front of an audience (court, jury, etc.). Thus, the choice needs to be made carefully and with some due diligence.

Below you'll find my top ten tips for choosing software to assist with managing and presenting evidence in trial.


1. PICK SOFTWARE THAT YOU ARE COMFORTABLE WITH AND HAS FEATURES THAT YOU WILL USE.

Many of the software choices have a plethora of features and "bells and whistles." Yet how many will you really use? If you already use litigation support software, you may not care about some of the in-depth features that some of the trial presentation packages offer. Why choose a package with hundreds of features when all you need is something that will bring up a document and enable you to zoom in and blow up key portions of an exhibit? If you tend to keep your presentations simple, then make your choice for presentation software simple. Pick the one that only does what you need.


2. MAKE SURE THE SOFTWARE TIES IN WITH THIRD PARTY APPLICATIONS.

If you do use litigation support software, you probably want your trial presentation software to integrate and work with it.

Typically a firm will load discovery documents and testimony into their litigation support package during the course of the litigation. As the path to trial gets closer, the final exhibit list begins to take shape. I have seen too many firms re-scan the trial exhibits over again into the trial presentation software, simply because there is no link or integration between the two packages.

Firms prefer to bring the entire contents of the case with them to trial. The desire is to have all the search and retrieval capabilities of their litigation support software.
Once they find what they want in the litigation support software, they want an easy transfer to the trial presentation software.


3. CHOOSE A DEVELOPER WITH GOOD TECHNICAL SUPPORT AND CUSTOMER SERVICE.

Getting customer service and technical support in a timely fashion is key -- users don't have time to wait a day or two for an answer. While in trial you are going to want quick responses and assistance. You want to make sure that your trial presentation software development company can get to you within an hour or less, especially days before trial or during trial. You don't want to be left hanging on the courtroom steps with no support from the people who wrote the software.

Ask other users to see what they say about the response time from their trial presentation software company. Are they helpful? Do they know what they are talking about? Are they professional? What is the average response time? Do they really understand what happens in a trial and how their software solution should be used? Did they get back to you fast?


4. THE TRIAL PRESENTATION SOFTWARE SHOULD ENABLE YOU TO PRESENT DEPOSITION VIDEO.

One of the more recent popular applications of trial presentation software is the ability to present video deposition. Video-to-text synchronization in the digital world has changed the way we impeach a witness or present a witness by video deposition. Some packages out there just don't offer the ability to load and present deposition video testimony in an organized and efficient way.

If you always present video depositions, then your choice for trial presentation software should take that into consideration. Furthermore you need to consider the process of preparing your transcript and video for use in your software. Some applications offer you the software, built in, to do it yourself. Others rely on a third party service bureau vendor to prepare them for you.

When choosing a package consider this: You need to have the ability to adjust or prepare video deposition at all hours of the night. Make sure you choose a package that provides you with the flexibility to be independent and not have to rely on an outside vendor. You're probably going to need assistance at 2:00 AM the night before trial, and this vendor must be available to assist.

In addition, you need to make sure your presentation software can accept video prepared in different formats.
Thus, no matter who does the processing, you should be able to convert or load the data into your package without problems.


5. DO YOU NEED SOFTWARE THAT CAN HANDLE HEAVY GRAPHICS?

The top presentation software packages out there do a good job with documents and deposition video, but are not the ideal solutions for high-end graphics or demonstratives.
Clearly there is a difference between TimeMap or PowerPoint versus TrialDirector, Visionary, or Sanction. Your final intent may be a factor in choosing the package that will best suit your needs.

There is nothing wrong with choosing both -- a package that handles graphics and one that can present documents and video. Just make sure you are clear on when to use one over the other. If you always use demonstrative graphics and want to create more colorful and "animated" presentations, one of your choices should be a package with the right tools to enable you to do just that.


6. IF IT WORKS, DON'T FIX IT.

If you use a trial presentation software package, or any package that enables you to present evidence in trial, and it works and you're familiar with it, stick with it.
Upgrades and new features may entice you but there is no sense in "changing horses midstream." There is nothing wrong with considering updates and new features, as long as it doesn't change your existing basic use of the software and makes life easier on you.

However, make sure you test your "old faithful" software with some of the new operating systems or updates to your operating systems. Especially Windows Vista! This catastrophe has caused some of us in the trial presentation business to lose sleep (and hair), not to mention the increased spike in blood pressure. Definitely test the software in the new update environment.


7. PICK STABLE SOFTWARE WITH GOOD MEMORY MANAGEMENT.

One of the most important aspects I look at with trial presentation software is stability during trial. You don't have the time to re-boot or troubleshoot in the middle of a heated cross examination. Software has to be stable and bug-free when you walk into a courtroom with your system. If you find that the software you are considering has a tendency to freeze up or cause a system shutdown, you should be careful. You cannot afford to have any problems in the courtroom, especially if you are running other software along side.

One of the ways to get an idea of how much memory software packages use is to bring up the Windows Task Manager by hitting the Control-Alt-Delete key. Go to the Processes tab and find the software's EXE program list. Check the Memory Usage value on the "Mem Usage" tab. Here you can see just how much memory is being tied up with the package. If, when running your trial presentation software along with other software, your system slows down, you may experience problems come show time. Make sure it all runs smoothly.


8. TRAINING: CAN THE REST OF US LEARN THIS STUFF?

If a tool has excellent features but is hard to learn, it may end up sitting on the shelf. Make sure it is easy for everyone to learn -- not just the mechanics of the software (where to click and where the menu items are), but how to use it in trial. What is the learning curve for all potential users?

Most software comes with a detailed manual and help screens to assist. But is this enough? Consider the available training options and who conducts the training. You need to learn to use this tool in trial. The trainer needs to not only know the software, but have experience in the courtroom and war room so that they can properly train you on the "real-world" use of this tool, not just how to print. The time it takes until full competency is an important consideration.


9. CHOOSE A SOLUTION THAT CAN ADAPT AND PRESENT ON THE FLY.

The difference between a PowerPoint and a TrialDirector presentation is a simple one -- one is a set, scripted collection of graphics (slides) that cannot be easily changed during the presentation; and the other is a interactive tool that will enable you to bring up and modify, on-the-fly, just about any piece of exhibit you choose.

You must consider, before choosing a tool, that you will probably need to make changes on the fly and have instantaneous access to any piece of evidence. Thus, if you are one who always changes your mind and needs the operator of the software to "keep up and follow along," you need to make sure the software you choose can do that. In this case, PowerPoint is simply not the choice.


10. CONSIDER WHETHER YOU WANT MORE THAN JUST PRESENTATION AT TRIAL.

I had a client who recently was starting fresh in the computerized litigation support software world. The very first thing they wanted to do was obtain, learn, and use presentation software. As we proceeded through training, they soon realized that the software did more than present evidence. They were pleasantly surprised at all the other features -- a coding and document database screen, the ability to search and organize depiction testimony, the ability to produce a set of documents to their adversary, etc. They then decided to use the software for more than just presentation.

If you fall into this category, you probably would be well served to consider packages that assist with the remaining management of your case, as compared to just using it to present at trial. You must consider that these additional features may not be as robust and detailed as some of the litigation support software packages out there when it comes to these additional features (document database, transcript manager, eDiscovery manager, etc). But, for the most part, in most small cases, it may be all you need. Don't be afraid to consider some of these tools as a total solution.


CONCLUSION: WHEN TO CHOOSE

There is a line a popular song by the Canadian Rock Group Rush that I have always liked: "If you choose not to decide you still have made a choice."

If you go to trial only once every 5 years, you may want to consider holding off until the trial date is within reach.
Technology is ever-changing and thus, choosing a package and then waiting three years to use it may not be the best choice. If you only want to use the tool to present evidence in trial, you don't need to purchase the tool until the time is right.

Finally, make sure the operator of the software is well-versed and has had plenty of practice before jumping into the "hot seat."



ABOUT THE AUTHOR

Timothy Piganelli is CEO and founder of Legal Technology Consulting, Inc. . He is a nationally recognized speaker and author as well as one of the country's top trial consultants in the areas of trial strategies, trial presentation, courtroom technology, and computerized litigation support. Tim's vast trial consulting experience provides expert insight to clients on strategies for the best use of technology to create effective illustrative presentations for jury comprehension. He is also an adjunct professor at Sacramento's McGeorge School of Law, Southwestern University School of Law in Los Angeles, and University of Denver, teaching Computer Assisted Litigation.

Computer Forensic Overview Course

Aubrey Owens - Vice President of Technology for Superior Document Services, and I road tripped to Houston, Texas Sunday April 13Th for a Computer Forensics course put on by our good friends at Trial Solutions. The course was excellent- the instructors were top notch real world forensic examiners with incredible insight into common and not so common forensics issues and surprisingly (to me at least) adversarial collection situations.

Course highlights for me include:

Detailed introduction to the field of computer forensics
Importance of forensics and forensically sound processes and procedures Case Law Overview
High level case studies of projects done correctly and incorrectly
Forensically Sound Data Collection, Process Storage, and shipment of media
Forensic Data Collection Tools
Password Cracking and Decryption Overview, Tools, and Demo
IT Structure and Data Mapping Overview
The use of camera's and recorders as forensic collection tools
Reporting
Standard Operating Procedures
Meeting the team at Trial Solutions


This is just one of several classes that Trial Solutions puts on - I'll be back for more.

http://www.trialgraphic.com/computer-forensics/forensic-management-course.htm

Sanctions issued for Obstruction of Forensic Inspection

Sterle v. Elizabeth Arden, Inc., 2008 WL 961216 (D. Conn. Apr. 9, 2008)
In this wrongful termination case, plaintiff sought the production of certain “DSFG Reports” which summarized information regarding the sales performance of employees in relation to their peers, and other key sales information. Plaintiff knew about the existence of the DSFG Reports because he had received a facsimile of the June 2004 DSFG Report before he was terminated. The fax was sent anonymously but the fax number was from defendant's Stamford, Connecticut office. The June 2004 DSFG Report revealed that plaintiff was leading his division in sales performance. After nine months of discovery, defendant had produced only four additional DSFG Reports. In October 2007, plaintiff moved to compel production of the remaining seven DSFG Reports from the year prior to plaintiff's termination.
The court held a telephone conference to discuss the motion to compel and the whereabouts of the seven remaining DSFG Reports. During the conference the attorneys maintained their respective positions on the matter: plaintiff’s attorney believed that the defense attorneys were hiding or had deleted the DSFG Reports, and defense counsel gave assurances that such reports could not be located. The court proposed that defendant permit a forensic computer consultant to inspect its computers, to which the attorneys agreed. The court entered an inspection order, which included the following provisions:
(1) The defendant shall permit its electronic records to be inspected by the plaintiff, through a mutually agreed to forensic computer expert; (2) The inspection shall be performed by February 29, 2008; (3) The inspection shall be limited to the search for the existence of the seven Department Stores Fragrance Group (DSFG) Ranking Reports, which the plaintiff claims he is entitled to receive but that the defendant claims it does not possess. The scope of the inspection for the DSFG reports shall be limited to the twelve month period of time prior to the plaintiffs termination in September, 2004; (4) In the event that the inspection reveals any of the seven DSFG reports, the defendants shall bear the entire cost of the inspection; (5) In the event that the inspection does not reveal any of the seven DSFG reports, the plaintiff shall bear the entire cost of the inspection....
The parties thereafter mutually agreed on the consultant who would perform the forensic computer inspection. In addition, the attorneys stipulated to an agreement to ensure the protection of any confidential communications that the consultant may inadvertently obtain from the defendant's computers.
However, when the consultant attempted the inspection, he was prevented from taking forensic media images and denied access to many areas of the computer system. The consultant submitted testimony describing his unsuccessful efforts:
On February 28, 2008, the Consultant traveled to the Defendant's office in Stamford, arriving at approximately 9:42 a.m.. The Consultant was initially permitted to access the Defendant's network by using McCarthy's account. The Consultant was told that he would not be able to access Naramore and Rand's laptops since both were in Florida. The Consultant had questions about the network and was given assurances on at least four different occasions that a technology employee (“IT”) would soon be present to help provide answers. Despite repeated assurances by McCarthy, the IT employee never appeared. McCarthy directed the Consultant to a folder entitled “DSFG,” but McCarthy could not provide the Consultant with access to the folder. The Consultant repeatedly attempted to gain access to the DSFG folder and to other areas of the drive without success. With each attempt McCarthy would leave the room to speak with one of the Defense Attorneys and would return only to tell the Consultant that his access was restricted. Such restriction essentially provided the Consultant with no access. When the Consultant requested access to Sachse's files, which were still on the system, McCarthy left the room to speak with IT and one of the Defense Attorneys. Upon returning, McCarthy told the Consultant that he had more access to the server than the Defendant had wanted. Minutes later the Consultant was logged out of McCarthy's account and logged into another account that no longer permitted him to access the folders that he previously had been able to access. Due to the minimal server access and lack of IT support, the Consultant left the Defendant's offices at 2:30 p.m.. The Consultant told McCarthy that without complete access to the media it was impossible to verify whether the DSFG Reports existed and that the only way to find deleted items is to review the entire media.
Defendant thereafter filed a motion for protective order to prevent or suspend all further inspection of the computer systems, and for attorneys' fees. Plaintiff moved for a finding of contempt based on defense counsel's violation of the inspection order, and moved for sanctions in the form of attorneys' fees
The court denied defendant’s motion and granted plaintiff’s motion for sanctions. It found that, although defense counsel may have provided some access to defendant's servers and networks, the majority of the inspection was thwarted by defense counsel’s “obstructive tactics.” The court criticized defense counsel’s changing positions:
In summary, over the course of nine months, the Defense Attorneys' position regarding the DSFG Reports went from: (1) not being able to produce the documents, to (2) claiming that the documents could not be found, to (3) offering to "recreate" the documents, to (4) claiming that producing the documents would be "overly burdensome," to (5) hypothesizing that the Plaintiff fraudulently produced the June 2004 DSFG Report, to (6) after receiving Sachse's incriminating email, producing four of the eleven missing DSFG Reports. The Court, finding this behavior to be erratic, held a telephonic conference on January 9, 2008, to discuss the whereabouts of the seven remaining DSFG Reports. During the conference the Defense Attorneys gave an express assurance that such reports could not be located and an implied assurance that the erratic behavior displayed over the prior nine months of discovery would end. As the Consultant's affidavit reveals, the Defense Attorneys failed to act in good faith during the inspection, so an order requiring the Defense Attorneys to pay the reasonable expenses associated with the Plaintiff Attorney's efforts to compel discovery is just.
The court further concluded that defendant’s failure to comply with the Inspection Order and to set forth a consistent and fair reason as to the existence of the DSFG Reports was “inexcusable.”
Accordingly, the court granted plaintiff’s motion for sanctions, and ordered the defense attorneys to pay to plaintiff’s counsel the reasonable expenses and fees associated with enforcing the inspection order, drafting the motions for contempt and for sanctions, and rescheduling the inspection of defendant’s electronic records. Further, the court ordered the defense attorneys to pay the consultant the reasonable expenses and fees incurred for the preparation, travel, and investigative work that was completed on February 28, 2008. In addition, the court ordered the defense attorneys to permit the defendant's electronic records to be inspected under the same terms as previously ordered.
The court denied plaintiff’s request for entry of a default judgment as a sanction, but warned defense counsel that, in the event that they did not comply in full with the court’s directives, it would consider striking the defendant's answer and entering a default judgment against it.