Pushing the Technology Envelope in and Out of the Courtroom

Electronic Depositions

Stacks of paper and boxes of evidence are the ubiquitous visuals that come to mind when one hears “deposition,” but the hard-copy paper trail may soon become a thing of the past. The latest advances in electronic deposition technology, including instantaneous cloud-based access to data, have created a new global market for the legal technology industry. While some attorneys may still prefer to conduct their depositions in-person, with stenographer in place and a room full of attendees on each side of the table, the trend is toward remote participation where experts, witnesses and counsel never have to leave their offices.

There are advantages of electronic depositions on multiple levels, including:

• Efficiency. Integrity of interview and information remain intact while significantly cutting down on the amount of bulk usually associated with printed material.
• Cost Savings. Being able to set up remote Internet access at the deposee's and deposer's home location eliminates significant travel expenses for all parties involved.
• Time Savings. Removing the geographical challenge enables lawyers to move multiple cases/depositions forward in different venues every day. The depositions can be set up to spool back to the main law office where the lawyers in the war room can digest the information or permit the underlying clients a live video feed to their desktop.

One of the newest technologies lawyers are relying upon is litigation software, such as the kind from EDepoze, which relies on an iPad to allow for both local and remote sharing of documents and exhibits. It also manages the entire deposition exhibit process regardless of whether the involved parties are attending the deposition remotely or in person. Lawyers who have used EDepoze have found time savings related to preparation, process and flexibility.

Other applications provide a Web-based user interface that displays live streaming video of the deponent, real-time transcripts, and an instant chat system. The chat system allows the attorney at the deposition site to discreetly communicate with remote users. This is helpful in situations where communicating with offsite experts can help inform a variation of the questions posed during a deposition.

Moving beyond live-streaming and video capabilities, new technology is quickly entering the deposition process in the form of video teleconferencing. Programs with secure Internet connections allow parties to participate and interact during depositions from their office or while on the road using a computer and/or tablet. Teleconference video may be saved and uploaded to online repositories for future review or use.

Lawyers still have the option of receiving hard copies of transcripts following a deposition, though more and more are opting for online delivery and storage of transcripts and exhibits. Many service providers now offer no-cost online transcript repositories which have, over time, become more robust in their offerings. Today's repositories offer secure hosting of the deposition transcript as well as exhibits. Some systems also provide optical character recognition of the documents thus permitting keyword and key-phrase search capabilities throughout the entirety of the permissible transcripts and exhibits. Moreover, videotaped depositions may also be stored remotely on the repository.

New Technology in Other Trial Areas

Streamlining of the deposition process is just one aspect of trial preparation that has been transformed in efficiency. New advancements in mock jury preparation, social media monitoring and trial graphics technology are enabling litigators to be more prepared than ever before.

Online Jury Research

A vital component of trial preparation is jury research, including the assembly of a mock jury to test the theory and stability of the defense. The traditional mock jury set up is a full-day exercise requiring significant time, manpower and expense. Jurors must be brought into a facility, fed and reimbursed for a full day of participation. This, along with the funds spent on jury consultants, facilities rental, data collection, travel, etc., is often thought to price this type of research out of the typical case. While critical to case preparation, the mock jury is often viewed as cost-prohibitive for lawyers who are on a tight budget. However, the next generation of jury research utilizes online alternatives with customized software to provide mock jury research at a low cost in a fraction of the time of a traditional mock jury exercise, while still preserving the strategic benefits.

Software programs such as JuryConfirm can be customized to the exact nature of the case, using instant feedback technology, online polling, and live moderated break-out deliberation rooms to recreate the benefits of in-person research in an online environment.

JuryConfirm focus groups can be an effective exercise to help determine whether a party should take their case to trial or stand by a lesser settlement. The results of many Jury- Confirm exercises show that if attorneys just made some tweaks to their presentation, they should try the case. Many attorneys follow these recommendations and take their cases to trial, and obtain verdicts mirroring the JuryConfirm results. On the other hand, the results of the Jury- Confirm research are often not favorable to the attorneys and thus help convince the attorneys' clients to settle.

Social Media Monitoring

The many social media outlets popular with the public also means there are numerous avenues to monitor what jurors, witnesses, plaintiffs, defendants and even attorneys are saying and seeing online. Many law firms claim to be monitoring all platforms and digging down ' but often the reality is that they've assigned one person to do this in their 'spare' time. Without the time dedication and primary expertise, this type of surveillance might miss a crucial detail to a case.

JuryScout is one product that has been successfully used by clients monitoring not only parties (i.e., plaintiffs) but jurors as well. There are numerous examples of information discovered though an online search of social media sites that have either impeached entirely a plaintiff's alleged claim of a type of injury or has been used to reduce settlement demands. In one instance, a plaintiff with an alleged significant arm injury was impeached through photographs that she herself had posted on a social media site that clearly showed her using her arm in a such a way that she alleged she could not. This information was central in plaintiff's accepting a nominal settlement.

Social media monitoring is also becoming an ever-more important information gathering tool with regard to jurors. Social media information may be used during jury selection, to monitor jurors during trial and post-verdict. As more and more courts are limiting parties' access to jurors during voir dire, the ability to gather additional information is critical in picking a jury. Moreover, the ability to monitor jurors during trial to make sure that they are following the court's instructions not to do research or communicate about the case is another important use of this information.

Many clients, when not getting the desired result at trial, have taken to looking at the cached information on social media websites of jurors for appellate issues. In one case, four jurors on the panel were found speaking about the case among themselves during the trial. This discovery was then raised by counsel during post-trial appeals. Recent issues have arisen when counsel have undertaken this type of research themselves, which has led to the appearance of contact with the jurors. Reputable search companies abide by all ethical obligations, yet are skilled in not leaving digital footprints on juror sites.

Graphics and Visuals Inside the Courtroom

There are now a variety of powerful technology tools that create compelling graphics in the courtroom. Presentations that are seamless, advancing with the touch of a finger, that add to the presentation rather than distract, are becoming more the norm. Jurors have certain expectations during a trial, much of which is promulgated by what they see on television shows and high-profile cases.

Trial software programs offer seamless presentation of exhibits, videotaped testimony or demonstratives. The creation of demonstratives ' animations, interactive presentations, graphics, etc. ' assist jurors in their understanding of the issues and complex concepts. Further, graphics allow the jurors to retain information that they then can use during deliberations. In a recent high-profile commercial case, my company was retained to provide trial presentation services, jury research and graphics assistance. During the course of the jury research, graphics were tested and modified based upon mock juror feedback. At trial the lawyers were confident that their presentation was hitting the right issues and providing clear, memorable and persuasive graphics on highly technical and complex concepts and business interactions.

Who's Doing the Work?

Traditionally, this background investigative work has been handled by law firms themselves, to varying degrees of effectiveness. However, the time required to invest in becoming fully educated on new technology is often prohibitive ' and costly ' for lawyers to embark upon directly. Legal services firms, employing lawyers and hired as outside vendors, are often a more reasonable choice. They have the time and resources dedicated to fully learning and implementing the latest research tools, and reporting their findings in a way that is most helpful to the lawyers in the thick of trial preparation.

The cons, if any, are in conducting any of this research incorrectly, and either missing something major, or in overstepping individuals' privacy boundaries. As social media usage continues to increase, the ethical question of which information “out there” is useable continues to be debated. There are a lot of powerful tools, but, as with anything, if they are not used in the right manner, practitioners can find themselves either wasting resources or in trouble.

The Future

As we head deeper into 2014, there are still many defense attorneys who choose to handle trial research and certain discovery on their own, using the traditional methods. But with the wealth of efficient, targeted information available through the various online applications, sources and services, the future of discovery may be through legal services firms that specialize in this area.

I expect that within the next five years, more than half of the cases being tried will apply a combination of technology in two areas ' better social monitoring and thus informed jury selection, and online pre-trial research conducted to test and develop case theories and arguments, along with the appropriate demonstratives. During discovery, the use of streaming services, online exhibits at depositions and other electronic discovery will continue to develop and will no longer be novel technology but the norm.

Peter Hecht is Vice President of Business Development for Magna Legal Services. www.magnals.com. He can be reached at [email protected].

End-to-end service providers in the legal industry are experiencing a remarkable transformation in delivery of traditional services in the deposition, discovery and pre-trial areas. Technological advancements have dramatically improved the speed, capabilities and, in most cases, the cost-effectiveness in which these services are provided. Companies that have embraced the latest developments in jury research and selection technology ' particularly social media monitoring tools ' are best situated to thrive in the current environment.

This article describes the various tools, software interfaces and methodologies that are making the lives of law firms, corporations and governmental agencies much easier ' as well as sharing the pros (and even the cons) of the present ' and future ' of technology-based tools that lawyers will come to rely on as needs change.

Areas of Advancement in Depositions

Electronic Depositions

Stacks of paper and boxes of evidence are the ubiquitous visuals that come to mind when one hears “deposition,” but the hard-copy paper trail may soon become a thing of the past. The latest advances in electronic deposition technology, including instantaneous cloud-based access to data, have created a new global market for the legal technology industry. While some attorneys may still prefer to conduct their depositions in-person, with stenographer in place and a room full of attendees on each side of the table, the trend is toward remote participation where experts, witnesses and counsel never have to leave their offices.

There are advantages of electronic depositions on multiple levels, including:

• Efficiency. Integrity of interview and information remain intact while significantly cutting down on the amount of bulk usually associated with printed material.
• Cost Savings. Being able to set up remote Internet access at the deposee's and deposer's home location eliminates significant travel expenses for all parties involved.
• Time Savings. Removing the geographical challenge enables lawyers to move multiple cases/depositions forward in different venues every day. The depositions can be set up to spool back to the main law office where the lawyers in the war room can digest the information or permit the underlying clients a live video feed to their desktop.

One of the newest technologies lawyers are relying upon is litigation software, such as the kind from EDepoze, which relies on an iPad to allow for both local and remote sharing of documents and exhibits. It also manages the entire deposition exhibit process regardless of whether the involved parties are attending the deposition remotely or in person. Lawyers who have used EDepoze have found time savings related to preparation, process and flexibility.

Other applications provide a Web-based user interface that displays live streaming video of the deponent, real-time transcripts, and an instant chat system. The chat system allows the attorney at the deposition site to discreetly communicate with remote users. This is helpful in situations where communicating with offsite experts can help inform a variation of the questions posed during a deposition.

Moving beyond live-streaming and video capabilities, new technology is quickly entering the deposition process in the form of video teleconferencing. Programs with secure Internet connections allow parties to participate and interact during depositions from their office or while on the road using a computer and/or tablet. Teleconference video may be saved and uploaded to online repositories for future review or use.

Lawyers still have the option of receiving hard copies of transcripts following a deposition, though more and more are opting for online delivery and storage of transcripts and exhibits. Many service providers now offer no-cost online transcript repositories which have, over time, become more robust in their offerings. Today's repositories offer secure hosting of the deposition transcript as well as exhibits. Some systems also provide optical character recognition of the documents thus permitting keyword and key-phrase search capabilities throughout the entirety of the permissible transcripts and exhibits. Moreover, videotaped depositions may also be stored remotely on the repository.

New Technology in Other Trial Areas

Streamlining of the deposition process is just one aspect of trial preparation that has been transformed in efficiency. New advancements in mock jury preparation, social media monitoring and trial graphics technology are enabling litigators to be more prepared than ever before.

Online Jury Research

A vital component of trial preparation is jury research, including the assembly of a mock jury to test the theory and stability of the defense. The traditional mock jury set up is a full-day exercise requiring significant time, manpower and expense. Jurors must be brought into a facility, fed and reimbursed for a full day of participation. This, along with the funds spent on jury consultants, facilities rental, data collection, travel, etc., is often thought to price this type of research out of the typical case. While critical to case preparation, the mock jury is often viewed as cost-prohibitive for lawyers who are on a tight budget. However, the next generation of jury research utilizes online alternatives with customized software to provide mock jury research at a low cost in a fraction of the time of a traditional mock jury exercise, while still preserving the strategic benefits.

Software programs such as JuryConfirm can be customized to the exact nature of the case, using instant feedback technology, online polling, and live moderated break-out deliberation rooms to recreate the benefits of in-person research in an online environment.

JuryConfirm focus groups can be an effective exercise to help determine whether a party should take their case to trial or stand by a lesser settlement. The results of many Jury- Confirm exercises show that if attorneys just made some tweaks to their presentation, they should try the case. Many attorneys follow these recommendations and take their cases to trial, and obtain verdicts mirroring the JuryConfirm results. On the other hand, the results of the Jury- Confirm research are often not favorable to the attorneys and thus help convince the attorneys' clients to settle.

Social Media Monitoring

The many social media outlets popular with the public also means there are numerous avenues to monitor what jurors, witnesses, plaintiffs, defendants and even attorneys are saying and seeing online. Many law firms claim to be monitoring all platforms and digging down ' but often the reality is that they've assigned one person to do this in their 'spare' time. Without the time dedication and primary expertise, this type of surveillance might miss a crucial detail to a case.

JuryScout is one product that has been successfully used by clients monitoring not only parties (i.e., plaintiffs) but jurors as well. There are numerous examples of information discovered though an online search of social media sites that have either impeached entirely a plaintiff's alleged claim of a type of injury or has been used to reduce settlement demands. In one instance, a plaintiff with an alleged significant arm injury was impeached through photographs that she herself had posted on a social media site that clearly showed her using her arm in a such a way that she alleged she could not. This information was central in plaintiff's accepting a nominal settlement.

Social media monitoring is also becoming an ever-more important information gathering tool with regard to jurors. Social media information may be used during jury selection, to monitor jurors during trial and post-verdict. As more and more courts are limiting parties' access to jurors during voir dire, the ability to gather additional information is critical in picking a jury. Moreover, the ability to monitor jurors during trial to make sure that they are following the court's instructions not to do research or communicate about the case is another important use of this information.

Many clients, when not getting the desired result at trial, have taken to looking at the cached information on social media websites of jurors for appellate issues. In one case, four jurors on the panel were found speaking about the case among themselves during the trial. This discovery was then raised by counsel during post-trial appeals. Recent issues have arisen when counsel have undertaken this type of research themselves, which has led to the appearance of contact with the jurors. Reputable search companies abide by all ethical obligations, yet are skilled in not leaving digital footprints on juror sites.

Graphics and Visuals Inside the Courtroom

There are now a variety of powerful technology tools that create compelling graphics in the courtroom. Presentations that are seamless, advancing with the touch of a finger, that add to the presentation rather than distract, are becoming more the norm. Jurors have certain expectations during a trial, much of which is promulgated by what they see on television shows and high-profile cases.

Trial software programs offer seamless presentation of exhibits, videotaped testimony or demonstratives. The creation of demonstratives ' animations, interactive presentations, graphics, etc. ' assist jurors in their understanding of the issues and complex concepts. Further, graphics allow the jurors to retain information that they then can use during deliberations. In a recent high-profile commercial case, my company was retained to provide trial presentation services, jury research and graphics assistance. During the course of the jury research, graphics were tested and modified based upon mock juror feedback. At trial the lawyers were confident that their presentation was hitting the right issues and providing clear, memorable and persuasive graphics on highly technical and complex concepts and business interactions.

Who's Doing the Work?

Traditionally, this background investigative work has been handled by law firms themselves, to varying degrees of effectiveness. However, the time required to invest in becoming fully educated on new technology is often prohibitive ' and costly ' for lawyers to embark upon directly. Legal services firms, employing lawyers and hired as outside vendors, are often a more reasonable choice. They have the time and resources dedicated to fully learning and implementing the latest research tools, and reporting their findings in a way that is most helpful to the lawyers in the thick of trial preparation.

The cons, if any, are in conducting any of this research incorrectly, and either missing something major, or in overstepping individuals' privacy boundaries. As social media usage continues to increase, the ethical question of which information “out there” is useable continues to be debated. There are a lot of powerful tools, but, as with anything, if they are not used in the right manner, practitioners can find themselves either wasting resources or in trouble.

The Future

As we head deeper into 2014, there are still many defense attorneys who choose to handle trial research and certain discovery on their own, using the traditional methods. But with the wealth of efficient, targeted information available through the various online applications, sources and services, the future of discovery may be through legal services firms that specialize in this area.

I expect that within the next five years, more than half of the cases being tried will apply a combination of technology in two areas ' better social monitoring and thus informed jury selection, and online pre-trial research conducted to test and develop case theories and arguments, along with the appropriate demonstratives. During discovery, the use of streaming services, online exhibits at depositions and other electronic discovery will continue to develop and will no longer be novel technology but the norm.

Peter Hecht is Vice President of Business Development for Magna Legal Services. www.magnals.com. He can be reached at [email protected].