Thursday, February 10, 2011

Know the Rules for Tech-Based Evidence

On Richard Kellner and Michael Storti post a great article on the admissibility of tech based evidence.
Stockbyte, Getty Images A picture is worth a thousand words. With stunning advances in technology, lawyers can now use videos, computer-generated images, and simulations to effectively convey an astonishing amount of information to jurors in a very short period of time. If properly used, lawyers can metaphorically transport jurors back in time to observe the key events that precipitated the lawsuit. Accordingly, technology-based evidence is now an indispensable weapon in the arsenal of most trial attorneys.

While technology-based evidence can be mesmerizing and often dominates pre-trial preparation, it is essential for litigators to fully understand the evidentiary hurdles that must be overcome before technology-based evidence is used or admitted into evidence at trial. Nothing is worse than painstakingly preparing technology-based evidence, only to have it excluded by the judge at trial.


With the proliferation of televisions shows like CSI, jurors now expect that the presentation of evidence will integrate technology -- providing visual stimulation that contrasts with the doldrums of evidence customarily presented through documents or live testimony. From a practical standpoint, it is often difficult for jurors to digest and recollect all of the important evidence, especially when it is complex and voluminous. For summations or expert testimony, there is absolutely no substitute for technological-based presentations that provide the jury with an expeditious recounting of the pertinent evidence.

While technology can greatly help enhance a case, it is not without its faults. If overused, jurors can experience technology overload -- focusing on the "show" rather than the evidence. Strategically, a trial attorney needs to utilize technology for a specific purpose and not just entertain the jury.

It is critical to realize that courtrooms are not immune to Murphy's Law. There is nothing worse than have technical "complications" in the presentation of evidence. Technical glitches are at best distracting. At worst, they can destroy an attorney's or witness's credibility with the jury. Therefore, it is essential that all technological evidence be thoroughly tested prior to trial, and backup plans be made in the event the technology fails. In this regard, it is imperative that a professional be in the courtroom who has experience handling technology in a trial setting.


Technology-based evidence is subject to the same evidentiary hurdles as traditional demonstrative evidence. Different evidentiary rules are implicated depending on whether the evidence itself is electronic or whether technological means are used to display non-electronic evidence. If the underlying evidence is a hard copy, such as a photograph, then there are no impediments to use technology to display the evidence as long as a proper foundation has been laid.

Demonstrative technology-based evidence is as admissible as the evidence it seeks to illustrate. Visual evidence can be used to illustrate a witness' testimony if it will help the jury understand the testimony and it is a fair representation of the evidence it purports to illustrate. United States v. Mohney, 949 F.2d 1397, 1405 (6th Cir. 1991). Thus, accurate computer-generated models or diagrams can be used to illustrate a witness's testimony. United States v. Beckford, 211 F.3d 1266 (4th Cir. 2000). (Beckford allows computer-generated diagrams as a demonstrative aid to help illustrate investigative findings concerning observations of bullets, bullet holes, and bullet path angles.)

Where computer animations are used to illustrate a witness's testimony, the jury should be instructed that the simulation is not a reenactment of the event. Hinkle v. City of Clarksburg, WV, 81 F.3d 416, 427 (4th Cir. 1996); Datskow v. Teledyne Continental Motors Aircraft Products, a Div. of Teledyne Indus., Inc. 826 F.Supp. 677, 685--686 (WD NY 1993) (Here, the court instructed the jury that computer-generated animation of fire in an airplane engine was "simply computer pictures" to help them understand [the expert's] opinion.) The proper foundation for such evidence is established by demonstrating that the demonstrative evidence is a fair representation of the underlying admitted evidence. People v. Ham, 7 Cal.App.3d 768, 780 (1970). Ultimately, the court has discretion to exclude this evidence if it believes that the probative value is outweighed by the risks of juror confusion. California Evidence Code §352.

It cannot be stressed enough that the technology-based demonstrative aids accurately reflect the testimony -- since this is the most likely ground for exclusion.

If one is using computer output as the substantive evidence rather than to simply illustrate the expert's testimony, there are greater implications for admitting the evidence. In Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 589 (1993), the Supreme Court interpreted Federal Rule of Evidence 702. Here, the court said that "under the Rules the trial judge must ensure that any and all scientific testimony or evidence is not only relevant, but reliable." Daubert focuses on objective criteria that may provide a safeguard against the admission of evidence that has customarily been received, but may not have a scientific basis.

The factors laid out in Daubert that are used for determining whether a technique is scientific knowledge that will assist the trier of fact are: 1) whether it can be (and has been) tested; 2) whether the theory or technique has been subjected to peer review and publication; 3) the known or potential rate of error in the case of a particular scientific technique; and 4) general acceptance. The court further stated that "[t]he inquiry envisioned by Rule 702, we emphasize, is a flexible one. Its overarching subject is the scientific validity and thus the evidentiary relevance and reliability of the principles that underlie a proposed submission."

Sections 720 and 801 of the California Evidence Code are equivalent to Federal Rule 702. See People v. Leahy, 8 Cal.4th 587, 598 (1994) ("Sections 720 and 801, in combination, seem the functional equivalent of Federal Rules of Evidence, rule 702, as discussed in Daubert."). Under §801 and the Kelly/Frye test, the admissibility of the evidence will turn on whether it is "generally accepted by experts in the field."

Opposing counsel may argue that the evidence, though relevant, should be excluded because it poses a high risk of unfair prejudice under Federal Rules of Evidence Section 403 or California Evidence Code §352. As a result, it is advisable to have the judge pre-rule on the admissibility of graphic-animation evidence. The court will weigh the probative value or logical force of the evidence and compare it to any number of dangers or costs that might be created if the evidence is admitted, such as unfair prejudice or misleading the jury.

Strategically, the most prevalent use of demonstrative evidence is through expert testimony, which if properly presented can substantially enhance the expert's credibility before the jury. For reconstructions of an accident or event in dispute, the reconstruction needs to be made under "substantially similar" conditions to those existing at the time of the event. People v. Boyd, 222 Cal.App.3d 541, 565-66 (1990); Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 791 (1981). In all circumstances, when there is any doubt regarding the admissibility of the evidence, the litigator should obtain a pre-ruling from the court regarding the admissibility of the demonstrative evidence.

Technology-based demonstrative evidence is now universally recognized as an indispensable tool for litigators in the modern age. Just like everything else in trial, the key to the use of technology-based demonstrative evidence is preparation, preparation, preparation.

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Wednesday, February 2, 2011

Tips For Buying A Tablet

Considering buying a tablet computer? You are not alone. In fact, it is without a doubt the hottest selling computer platform. Thanks to Rick Georges at his futurelawyer blog, here are some thoughts to keep in mind as you go shopping.

While I have been buying and testing tablet computers, both from a love of gadget testing, and to help out you tech challenged lawyers who are being bombarded with ads for tablet computers, I have come to a bright line conclusion; if you think you will want a tablet, Rule Number One is never to buy one with a resistive touch screen. Run, don't walk, away, if an ad or a Seller identifies the screen as resistive, or if they won't tell you what kind of screen it is. Also, stay away from the 7 inch form factor. The screen is just too small for a decent video experience. Get an Apple iPad (9 inches), or a Gtablet (10 inches) or the upcoming Motorola Xoom (also 10 inches). All have capacitive touch screens, fast processors, and the latest tablet OS. The GTablet was my choice, because it was less than $400, and I like playing with and loading OS builds; but, it has a lousy interface out of the box, and requires a tech mindset and some willingness to learn about how to flash ROMs and to sideload and install software. However, it has a Tegra dual core processor, and a big, beautiful screen, and runs Android Froyo 2.2. I expect that today's announcement of Gingerbread (Android 3.0) will prompt hackers to get a build that I can install on it later as well. But, again, Rule Number One, You DO NOT WANT a resistive touch screen. It is a real pain to have to press down on a touch screen to get it to recognize a finger press. The tablets, like [certain ones at] are cheap ($99 to $199), but they are, in my humble opinion, unusable. In the final analysis, for real work, I am sticking with my Dell Inspiron Duo, which has a real keyboard, and runs Windows 7, for all of my law firm software, However, the GTablet has earned a place in my bag, and I carry it around for fast consumption of web, email, and video. It also works fine when I am in a supine position in a LaZBoy recliner. I refuse to divulge how much time is spent in that activity.

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Tuesday, February 1, 2011

Groupon Primer

At her Nolo's Legal Marketing Blawg Carolyn Elefant presents a great primer
Can Groupon, a website that leverages the concept of collective bargaining power to offer daily deals on local businesses work for lawyers? To date, I've seen at least one law firm that gave Groupon a try, though no word on the results of the firm's participation. Meanwhile, the North Carolina Ethics Committee recently opined that Groupon violates state bar rules' prohibiting fee splitting. As I'll discuss in this post, though I don't think Groupon is a particularly promising way for law firms to market a practice (in addition to ethics hurdles, it's also a costly proposition), there is one way that lawyers can benefit from Groupon: as buyers of Groupon discounted servicers, rather than providers of it.

What is Groupon?
By now, most lawyers are probably familiar with Groupon, an online company that offers daily deals at local businesses. One of Wall Street's current darlings, it's been described somewhat derisively as darlings of the tech industry;a modern version of an online coupon book. Basically, Groupon teams up with local businesses who provide a coupon for 50 to 70 percent off a product or service. Groupon emails the deal to registered users, and if enough users commit to purchasing the coupon, the deal goes through. Groupon and the participating business split the proceeds.

How Groupon Benefits Non-Lawyer Businesses
As described here, retailers benefit from Groupon in a number of ways. First, the coupons bring business in the door, and as a result, customers are likely to spend more than just the face value of the Groupon. Second, first time customers may either become repeat customers or refer friends, so the loss on the first, discounted sale can yield future sales down in the line.

Groupon also spares retailers up-front costs of advertising. Though to be sure, Groupon ain't free, the money comes from sale proceeds and not out-of-pocket. If a deal doesn't go through due to insufficient numbers, retailers don't pay. Moreover, even if consumers don't buy a Groupon when offered, they may learn about your business and patronize it even without the discount. I know that I've learned about a couple of activities in my area through Groupon that I later visited even though I never thought to purchase a coupon at the time because I didn't have an immediate use for it.

Still, even though Groupon can benefit businesses, it can also be a big bust. That's because, as discussed here, not all consumers spend in excess of the Groupon or return after having used the coupon. Most importantly - Groupon can be costly to providers. Let's say that a restauranteur offers a $50 meal for $25 and 100 people accept the offer. That's $2500 in proceeds (100 x $25), but the restauranteur only receives $1250. That means the restaurant is obligated to provide $5000 in services for $1250.

A Harvard Business School paper (December 2010) offers a more extensive cost-benefit of Groupon, summarized here. What's interesting is the study found that discount vouchers work better for some businesses than others. Merchants will low cost of goods and highly perishable products - like restaurants, spas, gyms and hotels - fall within that category - every table or room unfilled is lost revenue that can't be recovered. By contrast, retailers of clothing or manufactured products can hold items for future sales, so the marginal business that other providers gain from Groupon is not as urgent for them.

How Can Groupon Work for Lawyers
Selling legal services via Groupon poses somewhat more of a challenge than other items. Since customers have to pre-pay for Groupons, they'll want to purchase a service that they need or might like to use. So whereas a spa can sell a $200 Groupon for a $500 "Day of Beauty," since customers may want to sample that type of service, a customers are unlikely to pay $200 for "$500 Worth of Legal Services" unless they have an immediate need for legal services. Second, most of the Groupons that come to my box are priced so that recipients can redeem the groupon for a full product without spending more than face value. For example, if I buy a $10 Groupon for "$20 worth of food at XYZ Restaurant," it's usually enough for at least one, if not two meals. That's what makes Groupons so appealing. By contrast, if a ten dollar Groupon offered $20 of food at a five-star gourmet restaurant, I doubt that many people would buy it, because they'd have to spend more money at the restaurant in order to get the value of the Groupon.

It's that dynamic that makes Groupons less appealing for legal services. When customers buy a $200 Groupon, they want to receive the full service in return. Presumably, that is why this lawyer anticipated the possibility that a will might not be appropriate, and offered prospective Groupon purchasers a discount on other services. However, consumers might not want to purchase the more expensive service (or simply, might not have the money for it), and might demand a refund of the Groupon instead.

In addition, a Groupon is a form of advance payment for a service. If a lawyer offers a $100 incorporation on Groupon, and fifty clients accept the deal, the lawyer receives $2500 (fifty percent of the $5000 total) once the deal goes through. However, clients might not use the service for another three months. Would that require the lawyer to place the funds in a trust account?

The North Carolina ethics committee identified another ethics problem with Groupon, characterizing it as prohibited fee splitting Consumers pay one price for Groupon and lawyers subsequently split that fee with Groupon, a non-lawyer provider, a practice that violates North Carolina's rules. Though personally, I don't find much mischief in fee splitting as a way to spread advertising costs, I can easily see many other bars taking the same approach.

Though to date, North Carolina is the only disciplinary body that has expressly addressed Groupon, others have ruled on the ethics of other types of discounted services. A number of state disciplinary bodies don't approve of the practice, finding that discounts may be deceptive (for example, offering a "free" consult when a lawyer never charges for consults anyway), or can give rise to a conflict of interest or constitute a "fee" in exchange for referral if given to a third party, like a realtor, for distribution.

So What's the Bottom Line on Groupon for Lawyers?
Personally, I don't really see how Groupon can prove profitable for lawyers. Unless lawyers can offer a discrete service at a discounted rate, it seems that lawyers are bound to lose money. More importantly, unlike restaurants or hotels, will Groupons yield referrals or repeat business for lawyers? I'm skeptical, though if your experience differs, please share it in the comments. Finally, the potential ethical pitfalls associated with Groupon further diminish its desirability for lawyers.

Still - there is one terrific way for you or your law firm to use Groupon: as purchasers, rather than providers of Groupon deals. You can buy Groupons as thank-you gifts for clients and referral sources. Or snap up a bunch of Groupons to a restaurant or coffee shop at the beginning of the year, and use your Groupons throughout to treat colleagues or potential referral sources to a meal. Not only will you keep your costs down, but because you need to pre-pay for Groupons, you'll have more incentive to actually follow through on get togethers or networking meals.
So there you have it, the scoop on Groupon.
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Solo nets Supreme Court win!

I know this has nothing to do with technology, but I think it is pretty cool. Andrew Simpson is a sole practitioner in the U.S. Virgin Is...