In order to use technology effectively in the courtroom, you’ve got to first understand it, according to several judges presenting the first key note session at the LegalTech® New York conference.
The session titled — How is Technology Being Used in Today’s Court Rooms and Cases? — counted a panel of judges from U.S. District Courts, including James C. Francis, Lorenzo F. Garcia, Elizabeth D. Laporte, Andrew J. Peck, and Pamela Meade Sargent.
Here are several takeaways from the session.
The Vanishing Trial
Just one percent of civil cases in federal court actually go to trial. Most are dismissed by motion. The panel noted “we don’t see a lot of tech in pre-trial” but suggested that technology adoption in the legal industry is a slow evolution.
The typewriter, for example, was granted a patent in 1829 according to a panelist but was not commercially available until the 1860s. Even then, it required more time for the industry to understand the tool, how to use it, and develop the skills to put the typewriter to work.
There’s an opportunity for the vendor community to take a leading role in teaching and training the legal industry to adopt technology.
3 Types of Courtroom Technologists
According to the panel, the degree of technology savvy can vary greatly in the courtroom.
One panelist categorized digital skill sets into three broad buckets:
a) the lawyer that has just one copy of paper documents, which presents challenges for the jury to examine;
b) the “35-year old” attorney that uses a projector for presentation, and;
c) the “fully tech-enabled lawyer.”
There are of course caveats. The jury expectations, as a case in point, shaped by Hollywood courtroom drama, may influence the degree of technology adoption.
In the most expensive litigation cases, technology usually plays a central role. The exception is in cases where appearances are part of the litigation strategy. “Sometimes one side wants the jury to know they are the ‘poor folks,’” quipped one judge, indicating the absence of technology can be part design.
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eDiscovery Challenges in Social Media
The advent of social media presented an enormous change in litigation, not just for lawyers, but also for parties involved. For example, it took time for the culture to understand, that even social media comments made, in the privacy of one’s home, has the considerable potential to go public in litigation.
To the audience’s applause, one panelist noted parties would share their thoughts with 10,000 friends on social media, but didn’t want the opposing party to see or use it because those thoughts were “private.”
For the most part, the panel seemed to agree that the legal community has figured out how to effectively use social media in litigation. The next learning curve however, might be geo-location and activity tracking today’s consumer devices for fitness could provide.
Pricing Ourselves Out of the Legal System
There’s a danger that the cost of eDiscovery, and specifically review, could inhibit rather than facilitate the judicial process. “We are pricing ourselves out of the legal system” as a result of eDiscovery costs according to one judge.
One cause, the panel said, is lawyers that insist on reviewing “every single document to ensure nothing is missed.” The notion of “eyes on” every document is a myth, given the development of technology-assisted review (TAR), clustering and other forms of data analytics. In-house counsel plays a key role in this regard in pushing outside counsel to adopt technology for this purpose.
Objection, Your Honor!
Objections that “overly burdensome” is not going to work under the new FRCP rules that went into effect in December. Attorneys need to provide greater detail rather than “just saying the request is too broad and disproportional” or this request is “going to cost a lot.”
By way of illustration, the panel suggested referencing a specific time frame, specific cots or being able to demonstrate “the cost of production will outweigh the value of the case.
“The importance of specificity in those requests cannot be overstated,” according to one judge.
Cautionary Tale of Overreliance on Tech
One judge described a proceeding where the technology simply wouldn’t work. IT specialists worked on it, “fiddled” as the panelist described, but to no avail.
If there’s a cautionary tale, it’s a tale of overreliance on technology. And perhaps having a backup plan.
- Legaltech News: Talking Tech: 5 Federal Judges Kick Off Legaltech New York 2016
- Law360: Know Your E-Discovery Facts Before Going To The Judge
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