The Trial Practice Tips Weblog

Facebook and Discovery

From Law Technology News: "How Facebook Can Make or Break Your Case," by Eric B. Meyer--

The first thing I do after I receive a copy of an employee-filed complaint -- before I read the complaint -- is check the plaintiff-employee out on Facebook and other social networking sites.

I print any information that employee has made publicly available. I save any pictures the employee has published online and I send a list of the employee's friends to my employer-client to cross-check against a list of current and former employees. I do this because, generally, a Facebook user will allow friends greater access to online content.

According to Meyer, "If your client is sued by an individual and you are not harnessing the power of social media as part of your litigation strategy, you're making a BIG mistake." (Link from Future Lawyer.)

Under Consideration: Changes to Illinois Discovery Rules

From Illinois Lawyer Now: "Supreme Court rules committee to hold public hearing on civil discovery proposals"--

The Rules Committee of the Illinois Supreme Court will hear comments at a public hearing on Wednesday, July 28 on three proposals dealing with discovery issues in civil cases.

The hearing is scheduled to be held at 10 a.m., 160N. LaSalle Street, Room C-500 in Chicago.

The first proposal would allow the use, in very limited circumstances, of a party's discovery deposition at trial. The second would allow a lawyer to take a deposition by electronic means (e.g., phone, video) without a court order or consent of the opposing party. The third would allow lawyers to issue subpoenas in civil actions.

There is further information about the proposals and public hearing at the Supreme Court's website.

For Your Consideration: A New E-Discovery Blog

Here's a new e-Discovery blog to consider: Catalyst Repository. It promises to be a "useful resource for anyone with an interest in electronic discovery and document review."

It's various authors are profiled here by Robert Ambrogi, who is also writing for the weblog.

Evidence: Lawyer Proof and Juror Proof

Here's an interesting way to look at the evidence you present at trial: as either "lawyer proof" or "jury proof."

As authors Phillip H. Miller and Paul J. Scoptur write in their article, "Four Rules for Discovery," (Trial 3/10)--

There are two kinds of proof: lawyer proof and juror proof. Lawyer proof may get you past summary judgment, but juror proof is what gets you a verdict. Prediscovery focus groups can help you view the landscape of your case from the juror proof perspective.

The distinction is useful because it will force you to cut through the complicated legal thinking and view your case through the eyes of the jury.

Some evidence, of course, will fall into both categories. Neither category should be neglected. The value of juror proof is obvious. As for lawyer proof--that's important not only for summary judgment but also for appeal.

More about Trial magazine here.

Older Lawyers: Watch Your Backs

Here's why older lawyers should be looking out for the younger generation (or at least getting with it on technology)--

Most lawyers have trouble with email (and digital information in general) because they don't understand how to navigate that world. Lawyers who don't search for things on Internet are the worst. They lack a fundamental skill that's needed to efficiently attack digital information. Naturally they're inept when it comes to handling electronic discovery. Some of them are committing serious malpractice. But, of course, they have no idea.

The next generation of lawyers will not have this problem, or at least it won't be a prevalent problem like it is today. The young turks coming out of law school today don't have a passive relationship to information. They attack digital information the way sharks attack wounded seals.

This is from a much longer post from Ernest Svenson, "The Young Turks of Information Processing," which a commenter called "a great synopsis of the coming storm." I agree.

More About the 7th Circuit's E-Discovery Pilot Program

From Practical Ediscovery: "PowerPoint Slides about the Seventh Circuit Ediscovery Pilot Program"--

The Seventh Circuit Electronic Discovery Pilot Program was developed as a result of continuing comments from the business and legal community about the need to reform the civil pretrial discovery process. A committee of trial judges, lawyers, academics and expert consultants met to consider how the cost and burden of electronic discovery can be reduced.

The post concludes with a PowerPoint presentation that can be viewed within the post. It gives sort of an executive overview of the 7th Circuit's pilot program and also contains a number of practice tips.

Related Post: "Read About the 7th Circuit's E-Discovery Pilot Program."

Read About the 7th Circuit's E-Discovery Pilot Program

From the Electronic Discovery Law weblog of K&L Gates:

Beginning October 1, [2009], Phase One of the Seventh Circuit’s new Electronic Discovery Pilot Program (“Pilot Program”) will begin. The Pilot Program will be implemented through Standing Orders in selected cases, and evaluated through questionnaires to participating judges and lawyers.

The Pilot Program was developed as a result of recent and ongoing discussions throughout the industry regarding the need for cooperation and reform, especially in light “the rising burden and cost of discovery in litigation in the United States brought on primarily by the use of electronically stored information…”

The first phase of the Pilot Program will end on May 1. To learn, read the full post from Electronic Discovery Law, as well as the Statement of Purpose from the 7th Circuit (pdf).

Trial Tip: Authenticating Web Pages

From Law Technology News: "Authenticating Web Pages as Evidence," by M. Anderson Berry and David Kiernan--

Plaintiff sues your client, claiming that his injuries have significantly affected his lifestyle. He is unable to work, travel or bowl. Not surprisingly, his spouse alleges loss of consortium. On the eve of trial, you discover pictures and other details on a social networking website about plaintiff's recent trip to the International Bowling Museum & Hall of Fame, including a picture of plaintiff proudly holding a fluorescent orange bowling ball and a four-foot tall gilded trophy dated four days earlier. As you approach the witness with printouts of the web pages, you are stopped in your tracks: "Objection, lack of foundation."

This article contains for authenticating web pages and Federal Rule of Evidence 201, 901 and 902. It also has an interesting section about court cases involving the Internet Archive or "Wayback Machine."  

Related post: "Using Emails in Support of Summary Judgment or at Trial."

Using Requests for Admission to Simplify Your Case

In preparing your case for trial, don't overlook requests for admissions.

Requests for admissions are powerful tool for establishing proof on matters your opponent won't be able to (or doesn't plan to) to deny at trial.

In an auto case, a plaintiff might simplify the case with requests for admissions like the following:

• Admit that the collision occurred on Vencil Street.
• Admit that the speed limit on Vencil Street was 35 mph at the time of the collision.
• Admit that the defendant was traveling about 55 mph at the time of the collision.
• Admit that the eastbound defendant collided with the westbound plaintiff in the westbound lane of traffic.
• Admit that the plaintiff missed work for a period of time as a result of her injuries.
• Admit that the plaintiff missed work for 193 days as a result of the injuries she sustained in the collision.
• Admit that the plaintiff incurred reasonable and necessary medical bills in the amount of $52,000 from St. Joseph's Hospital as a result of the crash.
• Admit that the injury to the plaintiff's right hip, sustained in this collision, is permanent.

Source: "Jump-start your case with requests for admissions," by J. Franklin Long, Trial, 4/02. (The examples are quoted from a sidebar in the article; there are many more examples in the article.)

Related posts:

1. "Authenticating Exhibits Using Requests for Admissions: Two Methods"

2. "Responding to Request for Admissions Under the Federal Rules"

3. "Discovery Tip: Interrogatories About Requests for Admissions"

4. "Interrogatory Answers "Subject To" Objections: Send a Request for Admission"

Conducting Discovery by Focusing on Witnesses

A tip from "A Snipe-Hunter's Guide to Coaxing Answers from Hostile Witnesses," by Judge Ron Spears--

From the beginning, keep a separate folder on each potential witness and maintain a list of facts that witness may be able to testify to and how it could help or hurt your case. Craft questions throughout discovery that will fully elicit the adverse witness's knowledge on those important issues before trial and especially during depositions, always with an eye to use at a later proceeding.

As Spears points out, "You cannot impeach with a question never asked or an answer never given."

The full article can be found in the May, 2009, issue of the Illinois Bar Journal (available online only to ISBA members).