The Trial Practice Tips Blog

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."

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).

Illinois Practice: Documents Produced by Your Opponent Must Still Be Authenticated

There are two important lessons for Illinois lawyers in the recent Complete Conference Coordinators, Inc. v. Kumon North America, Inc., 915 N.E.2d 88 (2d Dist. 2009)--

• "Evidence that would be inadmissible at trial is not admissible in support of or in opposition to a motion for summary judgment." This means that documents used to support a motion for summary judgment, including emails produced by the other side in discovery, must be properly authenticated.
• In Illinois, production of a document in discovery does not establish the document's authenticity. In other words, you can't establish authenticity merely by arguing that your opponent produced the document in discovery.

Though some states, like Texas, "have enacted civil procedure rules allowing the fact that a party produced a document in discovery to establish its authenticity," the Kumon court declined to establish such a rule in Illinois.

For further discussion of this case, see "eDiscovery issues: Authenticating e-mail produced in discovery," by Scott A. Carlson, Trial Briefs, Vol. 55, No. 4, 12/09 (newsletter of the ISBA's Section on Civil Practice & Procedure).

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

Metadata Update: Views from Around the U.S.

The ABA's Legal Technology Resource Center has published an article titled "Metadata Ethics Opinions Around the U.S." The jurisdictions included are--

• Alabama
• Arizona
• Colorado
• Florida
• Maine
• Maryland
• New Hampshire
• New York
• Pennsylvania
• Vermont
• Washington, D.C.
• West Virgina

Links to the source documents from the various jurisdictions are included, as is a link to the ABA's own opinions on the metadata issue. A chart answers the following questions for each jurisdiction:

• What is the sender's duty when transmitting metadata?
• May the recipient review or "mine" metadata?
• Must the recipient notify the sender if metadata is found?

Finally, a number of past posts I've done on the metadata issue can be found at the end of the post "New ABA Ethics Opinion on Metadata" at Legal Underground.

Who's Reading Your Email? Whose Email Are You Reading?

If you work for a large organization, you might find this article a little creepy. "What your emails say about you: Our electronic trails are powerfully revealing – for those who can decode them."

Although the article has only a cursory relation to the topic of this weblog -- it mentions e-discovery --  it might be relevant to lawyers for other reasons. The article profiles a company called Cataphora that "tries to model what an 'effective' employee looks like based upon her electronic trail." For example, Cataphora can look for "who's using all-caps (typically a sign of high emotion) or who is communicating with people on a distant part of the org chart – a relationship that makes no organizational sense."

And there are some law-related applications:

Over the years, Cataphora has helped out in many cases where it's useful to know whether an employee is thriving within the company. This may indicate whether he will be a co-operative witness. Or take the example of a whistle-blower. While it's against the law to conduct a witch-hunt and fire the whistle-blower, it's very advantageous to know, before you get into court, who the whistle-blower may be (i.e., is it someone in a position to give a lot of information to the government?). When dealing with these kinds of issues, Cataphora started with the basic tradecraft assumption that a happy employee is unlikely to cause problems.

Want to know more? Here's a link to Cataphora's website.

Interrogatories Before Depositions

Plaintiffs' lawyer Ron Miller has an informative post explaining why he serves interrogatories at the time he files a complaint, noting in part--

The advantage in first obtaining answers to interrogatories is that the answers should help the attorney determine who should be deposed, what questions should be asked of those deponents and what documents should be obtained in the case. Having the interrogatory answers, in some cases, also may tend to shorten the length of time required for the deposition. A possible advantage in taking the opposing party's deposition before serving interrogatories is that the party's deponent will not have thought out the factual and legal position thoroughly with the attorney and be as prepared as he/she might be otherwise.

As Miller writes, there's a split of opinion on this issue among plaintiffs' lawyers. The full post, which contains much additional discussion, is titled "When to Serve Interrogatories?"

Related post from Trial Practice Tips: "Depositions Before Interrogatories?"