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WASHINGTON � Last year, a video of a high-speed police car chase strongly influenced the U.S. Supreme Court to rule in favor of police in a deadly force liability case. Could a DVD have similar sway in a case involving one of the worst oil spill disasters in the nation’s history? On Feb. 27, the high court will hear arguments in Exxon Shipping Co. v. Baker, No. 07-219, a challenge to a $2.5 billion punitive damages award stemming from the Exxon Valdez oil spill in Prince William Sound, Alaska, in March 1989. In the Exxon case, the DVD contains audio � for example, a drunken Captain Joseph Hazelwood’s distress call to the Coast Guard � and visual evidence � the impact of the oil spill on the environment � that was part of the court record. Exxon made no objection to the filing. Audio and visual The court has been slow to enter the electronic age even as other federal courts have permitted electronic filing of briefs and other documents. The video of the police chase, which resulted in serious injuries to a teenage driver, was notable not only for its impact on the justices � evident in oral argument as well as in the majority opinion � but also because the court, in an unprecedented step, posted the video on its Web site so the public could judge for itself whether the police used excessive force. A year earlier, the court received a CD containing audio of a 911 telephone call from a domestic assault victim. The 911 recording had been admitted into evidence and the defendant argued it violated his confrontation clause right � an argument he lost in the Supreme Court. “Twenty years ago we would have put transcripts in the joint appendix, but now with this technology, it’s just as easy to put it on a DVD and send it up [to the court], sort of a DVD appendix,” said Jeffrey Fisher of Stanford Law School. Fisher, along with counsel at Seattle’s Davis Wright Tremaine, represents the punitive damages class in the Exxon case and will argue the case. Fisher said the lawyers decided to submit the DVD for two reasons. First, the question of the excessiveness of the punitive award, he explained, involves facts surrounding Exxon’s conduct. “Exxon’s own rendition of the spill and its conduct in its brief is more sanitary than even its own executives admitted in evening talk shows and congressional hearings,” said Fisher. The DVD contains those interviews and testimony, some with transcriptions running below the video, he said. Although his clients can counter Exxon’s version of the facts in their own brief, Fisher explained, “It’s all the better if we can send something up in a format that will grab someone’s attention.” The second reason for the DVD, he said, was the “real challenge and concern” on his side of litigating an event that happened 19 years ago. “The thing about audio and visual is it has a way of bringing the event back in a way the written word doesn’t always do, especially in a punitive damages case, where on the most basic level, a jury has decided to punish a defendant for socially outrageous conduct,” said Fisher. “It’s only natural that after 19 years, we fear Exxon might take advantage of the fact that outrage dissipates. But [what] we can show here is how Alaskans felt in the days after the spill and this is what the jury saw.” Fisher said he and his colleagues discussed sending an electronic brief to the high court. The clerk’s office said it would circulate it but had never received one. “We decided not to push it,” he said.

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