Technology is outrunning the law.
Internet domain name suits and cases such as Napster illustrate the problems that can develop when the law has not had a chance to catch up to the high-tech gadgetry of the age. These issues, however, may involve more than a dispute between a teen-ager and a Hollywood music mogul over how many Britney Spears songs she can download; they may affect how lawyers try a case.
Evolving technologies such as animation, videoconferencing and electronic filing can make life easier and the practice of law more efficient. Yet these revolutionary legal devices are not immune from the legal requirements and evidentiary hurdles facing other, less space-age, trial tools.
What good is the world’s most dynamic trial animation if the judge won’t let an attorney get it before the jury? Can these modern technologies even violate fundamental constitutional rights? On the other hand, do these technologies actually solve old evidentiary problems? Whatever the case, a litigator should know the legal issues involved — and how some lawyers have handled them — before venturing into the world of trial technology.
PROBATIVE OR PREJUDICIAL?
Although the Federal Rules of Evidence do not mention computerized demonstrative evidence specifically, these rules are commonly applied to their use. Fed. R. Evid. 403 provides that a judge may exclude even relevant evidence if the probative value of that evidence is outweighed by a whole host of negative factors. This balancing test weighs the probative value against factors such as unfair prejudice, confusion of the issues, misleading of the jury and undue delay.
In addition, since many lawyers use computerized demonstrative evidence in coordination with the testimony of their expert witnesses, such admissions must comply with the evolving standards for expert testimony articulated by the U.S. Supreme Court in its Frye, Daubert and Kumho Tire decisions and the requirements of Fed. R. Evid. 702 and Federal Rule of Civil Procedure 26.
Trial technology can also fall prey to Fed. R. Evid. 611(a)’s court control of evidence provisions, Rule 901′s authentication requirements and even the mother of all evidentiary quagmires, the prohibitions against hearsay. As the 10th U.S. Circuit Court of Appeals notes in Robinson v. Missouri Pac. R.R. Co., 16 F.3d 1083, 1088 (10th Cir. 1994), “Because of its dramatic power, trial judges should carefully and meticulously examine proposed animation evidence for proper foundation, relevancy and the potential for undue prejudice.”
Some lawyers even claim that trial technologies have deprived their clients of their constitutional rights. The American Immigration Law Foundation has issued a practice advisory to immigration attorneys across the nation, advising them on how to handle what it sees as the inherent procedural due process problems in the use of videoconferencing.
In Rusu v. INS, 296 F.3d 316 (4th Cir. 2002), a recent 4th Circuit case, Constantin Rusu, a political asylum applicant who was tortured by Romania’s Ceausescu regime, claimed that conducting the hearing by videoconference denied him due process rights. Although the 4th Circuit held that Rusu had not met the standard for asylum eligibility, it did note the “haphazard manner” in which the videoconferenced hearing was conducted.
TECHNOLOGY TO THE RESCUE
Despite the hurdles posed by technology, there are many instances when litigators have used technology successfully. On occasion, technology has actually helped overcome evidentiary problems.
Michael Fishbein is a partner at Philadelphia’s Levin, Fishbein, Sedran & Berman. His firm has served as lead plaintiffs’ counsel in the fen-phen diet drug litigation before the Judicial Panel on Multidistrict Litigation in the Eastern District of Pennsylvania. In re Diet Drugs Prods. Liab. Litig., No. MDL 1203 (E.D. Pa.). In the litigation, Fishbein and his firm hired Boston’s Animation Technologies Inc. to prepare trial animation, including demonstratives illustrating a heart valve and the alleged effects of primary pulmonary hypertension. According to Fishbein, using computerized demonstratives can actually be better from an evidentiary standpoint.
Fishbein notes that, especially in state court, a lawyer might not get an admissibility ruling until the day of trial. “In the old days when we used hand-printed boards, if the judge excluded our demonstrative evidence, there was not much we could do,” Fishbein says. Computer animation changed all that. “Now, we can modify things on the fly. With digital animation, if the judge doesn’t like something, we can change it overnight,” he says. Where, in the past, a firm might lose the entire demonstrative, it can now simply make changes, preserve the evidence and get it in front of the jury.
However, products liability litigator Emma Burton of Washington, D.C.’s Crowell & Moring cautions that potential admissibility problems should cause counsel to consider a backup plan. Burton notes that in a recent federal court case in Florida in which she participated, the judge chose not to make admissibility rulings until the trial began. “We faced a situation of not knowing until literally the day of trial whether our evidentiary presentation would be admitted,” Burton says.
In such cases, Burton says, if litigators want to go high-tech, they should have a low-tech alternative strategy. Although she notes that it may mean transporting more than 100 “old-fashioned” boards to an out-of-state trial, Burton says the alternative could be worse: “If you’re not going to get pretrial evidentiary rulings, you may lose your entire PowerPointesque presentation.” Having a low-tech presentation waiting in the wings could prevent big problems.
In addition, Burton suggests considering venue in all trial-technology decisions. She notes that judges in different courts make different evidentiary determinations, and that juries in different parts of the country react to technology differently.
“It used to be that trying to get anything novel admitted was like trying to solve a Rubik’s Cube,” says Leo Boyle, immediate past president of the Association of Trial Lawyers of America and a partner at Boston’s Meehan, Boyle, Black & Fitzgerald. According to Boyle, “You had to follow a maze to get a relatively simple piece of evidence admitted.”
There was a visceral negative reaction to new technologies being introduced, Boyle says.
When he started practicing 31 years ago, he says, it was rare to find any admitted evidence other than spoken testimony or “perhaps a gun in a murder case or the product in a products case.”
Boyle now sees a change in position among judges and lawyers when it comes to the admissibility of technology. According to Boyle, the attitude is no longer focused on why computerized evidence should be kept out, but on whether it helps the jury understand the case.
In one of Boyle’s cases, he used a computer animation illustrating how a tractor-trailer would make a turn at a particular intersection in Cambridge, Mass. He and his technical consultants obtained the measurements of the truck and the intersection. From this information, they were able to create a computerized animation for the jury.
“We were even able to add or remove parked cars from the animation according to the varying recollections of the different witnesses,” Boyle says.
As evidence of the changing attitudes about computerized evidence, in Boyle’s truck case, the defense did not object to Boyle’s animation, nor did Boyle object to a defense video simulation.
“The notion that 12 jurors will get hornswaggled by some 3-D spectacular is simply fiction,” Boyle says.
Legal issues with litigation technology are not limited to trial animations or court videoconferences. With many court papers now filed electronically, lawyers face new electronic issues.
While perhaps few litigators long for the days when making an afternoon filing deadline also meant budgeting time for a secretary to print multiple copies, a paralegal to race in a taxi and a deputy clerk to Bates stamp the thing before 5 p.m., e-filing presents its own challenges.
With the ease of pointing and clicking to produce a document or make a court filing comes the ease of making an inadvertent disclosure, sometimes with disastrous results.
While many courts apply a five-pronged test to determine whether a privilege is waived by inadvertent disclosure, one line of cases holds that any inadvertent disclosure waives the privilege. With that in mind, litigators need every opportunity to prevent the accidental production of their clients’ confidential information. When lawyers, paralegals and secretaries make changes and deletions to documents in WordPerfect, Microsoft Word or other word processing applications, the page may look blank. In fact, many times it’s not — a client’s private information may still be there for opposing counsel’s tech guy to recover. With e-filing, an attorney may even be filing his client’s secrets as a public record.
Litigators have addressed this problem with digital redaction software. Robert Dawson of Winnipeg, Canada’s Dawson Law Chambers, a litigation boutique, uses Appligent’s Redax software to redact documents before he produces them. The software allows users to redact data from a document so that it cannot be reconstructed or recovered.
Dawson described a case in which his firm represented a high-profile client whose alternative funding sources may have been of great interest to the general public. Dawson knew that he had to produce some of the client’s financial data, but that other information should not be produced.
Using the software, Dawson was able to produce the required information without jeopardizing his client’s confidential information.
“It’s the smart technology person’s black ink and scissors,” Dawson says.
While different litigators have different methods for dealing with legal technology, the one thing on which most seem to agree is the importance of timely preparation and disclosure.
As Fishbein notes, in one of their cases involving the introduction of a demonstrative of a tire-changing machine, the main issue was not the potential prejudice of the evidence, but the fact that it was offered into evidence so late.
Knowing the potential evidentiary problems and disclosing evidence in advance should allow litigators to help their cases with trial technology. “If these things are noninflammatory, actual portrayals of relevant facts, usually you’ll get to use them,” he says.