It’s Not What You Said, It’s What They Remember

It’s Not What You Said, It’s What They Remember

Video is one way to reach jurors using new media.

At trial, the key oftentimes is getting complex issues that the parties have lived with for years to be comprehensible and memorable for juries whose understanding of the issues start from scratch and may only last for a couple of weeks.

The use of demonstrative evidence has progressed from a simple poster board drawing to animation showing accident scene recreations, all with an eye to making an impression on the collective jury’s mind of what each advocate wants the jury to remember most.   An homage, perhaps, to the saying that “A picture is worth a thousand words.

That may be fine when the point to emphasize can be reduced to one or a series of images, but it becomes more challenging when the point can only come across from oral testimony.   Studies have shown that the brain dedicates approximately five times more space to remembering sound (echoic memory) than it does to what you see (iconic memory).   The key word here is “remembering.” The image can make complex concepts concrete and easier to understand, but the spoken word actually has a better chance of being remembered.

The good news is that there’s a readily available technology that not only can combine the aural and visual, but complements it with reading comprehension. When video and synchronized text is combined in the form of closed captions, you get as close to the perfect world in information retention as possible in a trial setting (if you could have the witnesses sing their testimony to the tune of “Mairzy Doats” it would be even better).

If you’re interested in learning more, contact your local NNRC Trial Presentation Expert and they’ll be happy to give you a demonstration on how you can make sure that the jury not only hears what you said, but remembers it.

Video Conferencing: The Closest Thing to Being There

Video Conferencing: The Closest Thing to Being There

Videoconferencing allows the attorney to expand his or her reach.

by Eric Goldberg, Benchmark Reporting Agency

No one can deny that technology has revolutionized the way we do business. When the first video conference was introduced at the 1964 New York World’s Fair, it was a futuristic dream that few could imagine becoming a part of every day life. Today, businesses cannot imagine staying competitive without it.

Video conferencing gives law firms, attorneys, their clients and associates the opportunity to participate in real time, face-to-face meetings without the time or expense involved in travel. The quality, availability and high definition of video conferencing make it quick and easy for colleagues to communicate and share data without making a trip to the airport.

Just think of the time and expense you’ll save in travel––hours that can be spent, and billed, more productively. Your clients will also appreciate the ability to meet with you expediently. When video is added to a meeting, participants’ facial expressions of concern or satisfaction can be seen and addressed immediately, without the frustration of crossed emails or missed phone calls.

Not only is video conferencing convenient and sensible, it makes a compelling visual impact while cutting costs as you manage an ever-growing caseload. You’ll complete more meetings in a day, resulting in effective decisions and focused projects, thereby increasing productivity and profitability.

As a Principal of Benchmark Reporting Agency, Eric Goldberg oversees and is active in the day-to-day sales and marketing for the company. He also coordinates all of Benchmark’s video conferencing and video streaming worldwide — nearly 5,000 deposition suite options. He has been with Benchmark since 2000 and knows the court reporters, the firm’s capabilities, and the most efficient way to serve clients’ needs. 

Protecting Privacy Within E-Discovery Deadlines

Protecting Privacy Within E-Discovery Deadlines

Most discovery is handled electronically.

By Karen Whalen

A complete and competent review of the clients’ electronic documents for confidential materials may be impossible to accomplish within the strict discovery deadlines, making privacy difficult to protect. Electronic discovery is the only form of discovery today – clients no longer retain folders of documents in a filing cabinet. They only maintain an electronic file. Yet, the deadlines for document production remain the same as when paper discovery was the norm.

Clients may hand their attorneys a hard drive (or multiple hard drives) of electronic record that include voluminous .pst files of all emails on the subject matter or project – including emails to and from their personal attorneys, corporate attorneys or even the attorneys who were provided with the hard drives to respond to discovery. Paralegals are the ones who are tasked with the job of culling from the clients’ electronic files the attorney-client communications and other privileged documents prior to the production of the records. How does the paralegal review electronic documents within the time constraints allowed by discovery – especially emails covering a long time period that can number in the tens of thousands, not counting attachments?

Software Programs Are Not the Sole Review Tool

There are many litigation software programs that manage electronic documents; however, no matter what method is used. An eyes-on document review is involved somewhere in the process. Sophisticated programs include “predictive coding,” which locate documents similar to those which have been designated as privileged. There are tools to highlight certain key words, such as “litigation” and “claim,” plus attorney names, law firm names, and email addresses of counsel. However, clients forget to give you all the names of their personal attorneys, law firm email addresses may not have the word “law” in them, and even attorney signature blocks in emails may not identify the sender as legal counsel – so those types of communications are not easily identified and not captured by key term searches.

Another type of document not uncovered by a key word search is the non-relevant email, such as an invitation to a company picnic or a private social event. Worse yet (and unfortunately I have encountered this on more than one occasion) is the need to eliminate pornographic materials from client documents. Calendar invites to the company baseball game are innocuous, but off-color jokes and private photographs when included in a document production are an embarrassment and a terrible infringement of the client’s privacy. The client may be guilty of including such materials within the electronic files (most likely the emails are long forgotten by the client), but the client is relying on his attorney to protect his privacy. (I am using the masculine pronoun to include both genders, since this is not a gender-based phenomenon.)

In addition, even if the paralegal is using complex software, documents still need to be reviewed for content, since some privileges are not obvious to recognize and must be determined by a document reviewer. Therefore, regardless of the review platform, it is best practice to review the clients’ electronic documents one-by-one (called linear review) rather than relying on predictive coding or key word searches alone. The key word search is ideal for locating relevant client documents on the client’s servers and classifying critical documents within collections produced by other parties, plus it is an excellent aid for identifying privilege terms, but it should not be used as the only tool for a privilege review.

Privilege Review May Not Be Completed By Deadline

Tedious and time consuming, linear review involves scrolling through email chains of duplicate emails, examining email addresses to identify lawyers, and analyzing content in order to make complex decisions as to what is privileged and the basis for the privilege. Clients may forward emails from their attorneys to third parties, which waives the attorney-client communication privilege. This usually happens pre-litigation, before the representing attorney becomes involved and has the opportunity to advise the client not to forward emails containing legal advice. The privilege “in anticipation of litigation” requires legal analysis. In-house corporate attorneys wear several hats and it can be difficult to tell which communication is actually privileged. Often only a portion of the email is privileged. Keeping redactions consistent and tracking the basis for the privilege for inclusion in a privilege log can be laborious.

All of this e-discovery is expected to be completed within a fairly quick time period. Federal Rule of Civil Procedure 26(1)(C) states that the deadline for initial disclosures is within 14 days after the parties’ Rule 26(f) conference, which is supposed to take place as soon as practicable or at least 21 days before a scheduling conference. Therefore, the initial disclosures deadline is somewhat dependent on when the judge sets the scheduling conference, although most judges are eager to set those quickly. Federal Rule of Civil Procedure 34(b)(2)(A) states that the time to respond to requests for production of documents is 30 days after being served with the requests.

No matter how the deadline is calculated, there are occasions when it is impossible to perform a linear review within the deadline. Either the documents are produced without a page-by-page review, which is obviously not ideal, or extensions of time are agreed upon.

Rolling Productions by Agreement

Large productions are better managed if parties can agree to produce documents when reviews of subsets are completed, rather than by the discovery deadline. The email directory of the company president can be produced in an initial production, the email directory of the project manager in a supplemental, and so on. After all, it takes time to analyze the records that are produced by other parties. One can only ingest a voluminous production in sections, anyway. The disadvantage of rolling productions is that they can take several months to come to an end. There have been times when documents are still being produced as depositions are taking place – even of expert witnesses. Rolling production agreements often contain the caveat that if key documents are produced after critical depositions have taken place, deponents may be re-deposed to provide further testimony as to the documents from a later production. But, there are instances when document productions are compelled outside of the scope of litigation, when accommodations for rolling productions may not be an option.

Response Time for Subpoenas Can be Ridiculously Quick

Federal subpoenas are governed by Fed. R. Civ. P. 45(d)(3), which states that a subpoena may be quashed or modified if it fails to allow a reasonable time in which to comply. However, the rule is vague as to the actual time that is required to be given for compliance, except to state that objections must be served before the earlier of the time specified for compliance or within 14 days after the subpoena is served. Local federal rules may clarify this rule or impose different time restrictions or further clarify Rule 45. For example, a subpoena for a deposition must be served 14 days in advance of the appearance date per District of Colorado, Local Civil Rule 30.1. In any event, the deadline is not long enough for a voluminous electronic document production and allows no room for procrastination.

Attorneys may receive a phone call from a client, not a party to a lawsuit, who was served a month previously with a records subpoena to produce documents the next day, because the client delayed until the deadline was imminent before calling his attorney. An extension of time is sought, but the party requesting documents does not usually agree to several months of extra time, which is realistically the time production could take. In a worst case scenario, the client may not call his attorney before producing a hard drive of the electronic files pursuant to a records subpoena prior to the client being brought into the suit in an amended complaint or a third-party action. The client may not even mention that documents were produced pre-suit, and the lawyer is left to discover copies of his client’s records, including privileged documents, in production sets from other parties. Clients who do not think about contacting their attorneys before producing electronic files may not review their files for attorney-client communications before production.

I recently supervised a production set of our client’s documents that had already been produced by another attorney who represented the client before our firm entered an appearance. The documents were voluminous, in native format, included .pst files, and were not Bates-numbered. I sent the documents to a vendor for conversion to a universal format (.tif) and Bates-number branding, then re-produced the documents to all parties. They contained attorney-client communications. I did not review them before re-producing them. I knew better than that: even though the documents were already produced, privileged documents should not have passed through my hands and out the door. But, there you have it. It happens to all of us, and I’ve done this more times than I want to admit.

Clawback Is Inevitable

The Federal Rules of Civil Procedure anticipate the need for “clawback” – a vivid word used to describe the withdrawal of privileged documents from production. (See Fed. R. Civ. P. 26(b)((5)(B).) There are also many ethics opinions at the state level to cover situations in which clawback is necessary. However, if parties can agree in advance to a clawback procedure, it can prevent adversarial positions and motion work concerning disputes. Protective orders, scheduling orders and case management orders are the likely instruments to memorialize clawback agreements.

Software programs are invaluable tools, but should not be used as the sole process for reviewing documents for privilege, in spite of difficult-to-meet deadlines during electronic discovery. Examination of electronic documents page-by-page may seem too time consuming and lack the excitement of a page-turner novel, but it goes a lot further to insure the protection of the client’s privacy and to prevent the production of privileged documents.

Karen Whalen, ACP, RP, is a paralegal with more than 20 years of experience at Hall & Evans, L.L.C., in Denver, Colorado.  Ms. Whalen earned her B.S. degree from Northern Illinois University and her post-graduate paralegal certificate from Roosevelt University. She earned the ACP (Advanced Certified Paralegal in the Litigation Specialty) and PACE (Paralegal Advanced Competency Exam) registered paralegal credentials.  Ms. Whalen has previously presented CLE accredited seminars on ethics, legal writing, medical records evaluation, and trial preparation for the Institution for Paralegal Education, Half Moon, LLC, and the Colorado Bar Association.  Ms. Whalen has written articles for Facts & Findings and authors a regular column on “Technology” for The National Paralegal Reporter.

 

Denver Court Reporters

Denver Court Reporters

Denver court reporters are bringing new technology to litigation support.

Denver court reporters are changing the types of services they provide to meet the needs of attorneys who are facing new challenges in the 21st century. Years ago, these teams of professionals primarily served to document legal proceedings, but now they are providing a number of other services that allow them to partner with the law firm.

One of the most important things that attorneys have is time, and there seems to be far too little of it to work on cases. Colorado court reporters can help law firms use their time more efficiently by introducing the firm to new tools that can save time and money.

Video conferencing has been an important time saving tool for attorneys, and it can save the time associated with traveling to and from depositions and other important events. Now, an attorney can simply utilize the skill and know-how of the court reporting company to set up conferencing links that allow lawyers to work remotely. Many law firms are also taking advantage of realtime reporting that helps the lawyer get access to rough transcripts as they happen. Testimony is delivered straight from the reporter’s stenography machine to the attorney’s laptop, meaning information flows more quickly than ever before.

This type of new technology that adds immediacy to the work of the law firm can be complex to set up, but it can eliminate many of the logistical challenges facing today’s attorneys. Those who are working on cases that may cross several districts or even states can often be handled with an ease that rivals a case that takes place in the firm’s own backyard. This is allowing law firms to expand their reach and serve more clients with the excellence that law firms provide.

Chicago Court Reporting Firms

Chicago court reporting firms

Chicago court reporters are providing realtime reporting to give lawyers a new tool.

For the busy attorney, the logistics of arranging meetings can cost time for clients. Each moment that can be saved from working on setting up these meetings can be spent working on case preparation or meeting the demands of crowded court dockets around the country.

Chicago court reporters ensure that lawyers meet the demands of their bust schedules by offering a variety of services for bust legal professionals.

Using technology, court reporters can help bring attorneys from around the country together with clients, witnesses, and other lawyers through live legal video. Using this technology, lawyers can stay close to their practices and their clients and work on cases remotely, engaging in negotiations, arbitration, and other meetings via the web. This can be coupled with realtime reporting that allows the attorney to connect directly with the reporter’s equipment to see testimony as it is uttered.

For attorneys around the country the creation of an accurate record of the meetings is paramount to the success of cases. Transcripts from these meetings can come via accurate and professional court reporting companies that offer attorneys word-searchable databases to find important pieces of testimony.

In each case, technology and professional services of these firms can help attorneys stay focused on their primary task of working for their clients. The time saved by these services and the invaluable tools provided by the connectivity of legal video and professional reporting services can help lawyers work through their busy caseloads with confidence.

From Louis Brandeis to Sonia Sotomayor, The Steno Machine is a Technological Marvel

From Louis Brandeis to Sonia Sotomayor, The Steno Machine is a Technological Marvel

The steno machine has stood the test of time through evolving technology.

By Kenneth A. Zais, President, O’Brien & Levine Court Reporting

The court reporter’s shorthand steno machine may look much the same as it did 100 years ago when the format debuted, and when Louis Brandeis, then a litigator in Boston, might have taken a deposition. But the resemblance stops there. Under the keys, there are ongoing technological advances that Sonia Sotomayor could have tapped into 20 years ago, as litigators can continue to do so today. And let’s not forget video.

This being the 21st Century, chances are you’ve streamed live news broadcasts to your TV, computer, tablet or smart phone. Similarly, Internet connectivity provided by Boston court reporters allows the legal team to attend a deposition remotely, across geographies and time zones. Through realtime streaming, they can follow the live text of a deponent’s testimony from the steno machine, along with live video streamed right from the videographer’s camera.

Let’s say you are pursuing a patent infringement lawsuit on behalf of a Massachusetts company against a competitor located in California. Discovery in this multi-jurisdictional case includes depositions around the country. A key witness, the software engineer at the defendant company, is based in San Francisco. Your primary expert is in New York City. Your law firm is in Boston.

Virtual Attendance

You head to California to depose the software engineer. While you want your team present, it is also important to manage costs. With realtime streaming, your expert, as well as your associate and paralegal who are familiar with the intricacies of the case can participate through their computers. No special software is required. Since travel time can easily exceed the duration of a deposition, there is no need for them to be away from the office for several days, collecting receipts to submit with expense reports.

Still, through the instant messaging feature available with realtime, you are able to confer as if they were there, garnering insights for your line of questioning. For example, your associate may flag inconsistent testimony or your expert may question the validity of a claim. As the witness testifies, text can be highlighted, annotated and coded by issue, and preserved for reference as the case proceeds.

For multi-day depositions, a rough draft of the transcript is available at the conclusion of the day’s questioning for review and preparation for the next day.

On Camera

Again, let’s not forget that the camera was rolling. The video of the deposition can be produced with synchronized text, the same way it appeared live over the Internet during the deposition. When playing the video file, each line of testimony scrolls as the witness speaks—capturing demeanor, body language and tone of voice.

The real value, though, is searchability. Instead of rewinding and fast-forwarding to pinpoint the testimony that corresponds to the transcript, run text-based searches to zero-in on crucial statements, then easily create video clips to import into trial presentation software.

Mark (and Link) Exhibits

These days, you are no doubt accustomed to receiving final transcripts electronically, in the format you prefer, such as searchable full and mini PDF documents, a standard ASCII text file or a .ptx file.

Then there are exhibits. A stack of exhibits in a tower of banker’s boxes. They are marked and stickered. Copied and bound. As you review the transcript, you search through the stack to put your hand on the one that corresponds to Exhibit 35.

Keep in mind that like transcripts, court reporters can provide exhibits electronically by simply scanning and creating PDF documents. Then they’ll take it one step further and hyperlink exhibits to the electronic transcript. Click on the link for Exhibit 35 and there it is.

However, even before instructing the court reporter to retain exhibits for transcript production, new software enables a complete electronic process for handling exhibits via the iPad – before, during, and after the deposition. A secure, cloud-based server allows counsel to mark and simultaneously introduce exhibits to the witness, co-counsel, opposing counsel and other participants, whether they are in the deposition room or attending remotely.

It’s the electronic equivalent of sliding a page across the table for the witness to review, and circulating copies around the room (or faxing/emailing to those attending remotely). Plus, the parties retain their personal, annotated copies of all exhibits on their iPads, while marinating the integrity of  the official versions.

The advantage? Eliminate the cumbersome, time-consuming process of printing, shipping and lugging boxes of exhibits.

Fast Forward

If you see a depiction of a deposition that went forward in 1913, the stenographer’s keypad will look remarkably familiar. But everything else has changed.

In 2013, the court reporter/videographer team greets you wherever you designate, be it Boston, San Francisco, New York, Chicago, London, Paris or Tel Aviv. They make the connections and go on the record, keeping legal team members around the world on track.  Following the proceeding, whether it’s a deposition, arbitration, trial or hearing, your transcripts and exhibits are always readily accessible on any computer or tablet.  And of course, your phone.

Kenneth A. Zais is president of O’Brien & Levine Court Reporting (www.court-reporting.com), based in Boston and offering worldwide coverage. He is a long-time member of and is active in leadership roles with the National Network of Reporting Companies (NNRC), an organization of innovative agencies providing worldwide services for court reporting, videography and more. In addition, he has served on the board of the Society for the Technological Advancement of Reporting (STAR) and maintains an active membership.

Other professional affiliations include the National Court Reporters Association (NCRA), the Massachusetts Court Reporters Association (MCRA) and the United States Court Reporters Association (USCR.)