Leveraging Technology in the Courtroom: Planning and Creating Winning Digital Trial Presentations

Transcription

1 Presenting a live 90-minute webinar with interactive Q&A Leveraging Technology in the Courtroom: Planning and Creating Winning Digital Trial Presentations Strategies for Using 3D Animation, Trial Software, ipads, Video, Mobile Apps, Wearables and More in Courtroom Presentations THURSDAY, JULY 7, pm Eastern 12pm Central 11am Mountain 10am Pacific Today s faculty features: Jason Barnes, Partner, Barnes & Roberts, Dallas Elizabeth M. Sorenson Brotten, Shareholder, Lind Jensen Sullivan & Peterson, Minneapolis Bob Garrey, Of Counsel, Polsinelli, Dallas Dave Maxfield, Attorney, Columbia, S.C. The audio portion of the conference may be accessed via the telephone or by using your computer's speakers. Please refer to the instructions ed to registrants for additional information. If you have any questions, please contact Customer Service at ext. 10.

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5 Strafford 5 Leveraging Technology in the Courtroom Planning and Creating Winning Digital Trial Presentations

6 BOB GARREY ELIZABETH BROTTEN DAVE MAXFIELD JASON BARNES Polsinelli Lind, Jensen, Sullivan & Peterson Dave Maxfield LLC Barnes & Roberts Strafford 6

7 Strafford 7 Rules Authentication Admission

8 Strafford 8 Types of Evidence Substantive evidence used to prove a fact. Can include website data, social network communications and postings, , text messages, computer stored documents, and computer simulations. Demonstrative evidence used to illustrate the testimony of a witness or assist jurors. May includes computer generated evidence such as computer animations.

9 Strafford 9 Necessary Steps Relevance - Rule 401: Does it have any tendency to make some fact that is of consequence to the litigation more or less probable than it otherwise would be? Authentication - Rule 901: Can the proponent show that the evidence is what it purports to be? Hearsay - If offered for substantive truth is it hearsay under Rule 801? Is it covered by an exception? (Rules 803, 804, 807).

10 Strafford 10 Necessary Steps Original Writing - Is it an original or duplicate? If not, is there secondary evidence to prove its contents (Rules )? Probative Value - Rule 403: Is the probative value of the evidence substantially outweighed by the danger of unfair prejudice or one of the other factors identified by Rule 403, such that it should be excluded despite its relevance?

11 Strafford 11 Authentication Electronic Evidence Generally In order to authenticate, a proponent must offer evidence sufficient to support a finding that the matter in question is what its proponent claims. Fed. R. Evid. 901(a). Federal Rule 901(b)(1)-(10) provides non-exclusive list of examples of how authentication of electronic evidence can be accomplished. Authentication can also be made under Rule 902 the selfauthentication rule which identifies methods by which documents, including electronic ones, may be authenticated without extrinsic evidence.

12 Strafford 12 Authentication- Computer Generated Evidence Two common forms of computer generated evidence today are computer animations and computer simulations. Computer animations are demonstrative evidence. It will generally be admitted if authenticated by testimony of a witness with personal knowledge of the content of the animation, upon a showing that it fairly and adequately portrays the facts, and that it will help to illustrate the testimony. - Will generally require a sponsoring witness.

13 Strafford 13 Authentication- Computer Generated Evidence Computer simulations are substantive and treated as scientific evidence. The proponent need show: - the computer is functioning properly; - the input and underlying equations are sufficiently complete and accurate (and disclosed to the opposing party, so that they may challenge them); and - the program is generally accepted by the appropriate community of scientists.

14 Strafford 14 Case Examples Bryant v. Trexler Trucking (D. So. Car. 2013) Bullock v. Daimler Trucks North America, LLC (D. Colo. 2011)

15 Strafford 15 Technology Options

16 Strafford 16 Plaintiff s Perspective ADVANTAGES You get to go first most of the time. (Trial, Mediation) You have the freedom to be creative. Technology options exist particularly for IOS that level the playing field greatly (or even tilt it a little for you). DISADVANTAGES You re the first one in the pool. Your budget is probably less; DIY can cause problems. No check on your getting carried away with the shiny, fun tech.

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18 Strafford 18 What Kind of Proceeding?

19 (6) Records of Regularly Conducted Activity. A memorandum, report, record, or data compilation, in any form, of acts, events, conditions, or diagnoses, made at or near the time by, or from information transmitted by, a person with knowledge, if kept in the course of a regularly conducted business activity, and if it was the regular practice of that business activity to make the memorandum, report, record, or data compilation, all as shown by the testimony of the custodian or other qualified witness, unless the source of information or the method or circumstances of preparation indicate lack of trustworthiness; provided, however, that subjective opinions and judgments found in business records are not admissible. The term "business" as used in this subsection includes business, institution, association, profession, occupation, and calling of every kind, whether or not conducted for profit. Strafford 19

20 Strafford 20 Example of Map for Motion Argument

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23 Strafford 23 Defendant s Perspective ADVANTAGES You go second: Opportunity to see Plaintiff s themes and technology use. Opportunity to visually evaluate how decision maker reacts to Plaintiff s use of technology. Organize and highlight themes of case. DISADVANTAGES You go second: May be too late in the game to change your strategy to respond. You go second jurors/decision makers not as wowed by your technology use. Technology use may play into Plaintiff s themes to Plaintiff s advantage.

24 Strafford 24 Defendant s Perspective Why use technology or a particular type of technology?

25 Strafford 25 Defendant s Perspective: More Practicalities OR

26 Strafford 26 Defendant s Perspective: More Practicalities

27 Strafford 27 Planning Your Presentation

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29 Strafford 29 Who am I trying to convince?

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31 Strafford 31 What am I trying to show?

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41 Strafford 41 Using Digital Exhibits at Trial

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45 Strafford 45 Cutting Edge Technologies

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64 Strafford 64 Working with Vendors

65 Strafford Establish a relationship based on trust and communication 2. Demand commitment to your case 3. Involve them early in the case 4. Use them as a fresh set of eyes and ears 5. Communicate they need to understand your whole case 6. Treat them as members of your team they are 7. Give them the freedom to do their job 8. Don t throw them under the bus 9. Don t squeeze them (too hard) on price 10. Say thank you

66 Questions BOB GARREY Polsinelli ELIZABETH BROTTEN Lind, Jensen, Sullivan & Peterson DAVE MAXFIELD Dave Maxfield LLC JASON BARNES Barnes & Roberts Strafford 66