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Archive for August, 2012

It’s easy to take the presentation of video depositions for granted at a trial. To many litigators, it’s a convenience, a way to move their case along, to tell their story while working around difficult schedules. While deposition video disasters are rare, bad and uninspiring deposition videos are depressingly common.

Trial Deposition Video Tips

It doesn’t have to be that way. Our trial services teams has learned a lot of valuable lessons about not only making deposition videos more presentable, but making them into a competitive advantage. 

There are two common uses for presenting deposition video in court. The first is simply the presentation of non-live witness testimony, piecing together agreed-upon testimony to play all at once for the jury. The second use is impeaching a witness on cross which, if done correctly, can be devastating to a witness’s credibility. Both can have impact on a jury and a little preparation can go a long way in shaping that impact to your advantage.

1. Control the Environment  As much as possible, eliminate any loud background noise. For example, the mere presence of cell phones can cause buzzing in the audio stream. Discuss this with the videographer before recording. And be sure to mic the deposition properly, both the attorney and the witness, so that there is an even audio level. A jury who can’t hear a deponent will tune out and not follow their testimony.

2. Control the Appearance  The most famous deposition video of all time is arguably Bill Gates’ disastrous appearance in the company’s antitrust trial. Besides his evasive and arrogant answers, most people were distracted by his unruly hair and sloppy brown suit. You don’t need to be a fashionista or bring a stylist, but be aware of the fashion choices and way things look on camera. Think about how seasoned television pros dress. “Details and intricate patterns prove to be little trouble for our eyes. For the camera, however, pinstripes, checks, herringbones, and textured fabrics will cause havoc for the camera.”

Also, be aware that anything besides the witness on the screen will be noticed and could be a distraction (e.g. 64oz drink cup)

3. Watch Your Posture! This may bring back unpleasant flashbacks to grade school for some, but posture matters. Lean slightly forward – it presents a positive, comfortable look; leaning back in your chair can make you appear cocky or too carefree.

4. Put Your Best Face Forward Have your witness take a second at the beginning of the video recording, before questions start, to look straight into the camera with both a neutral face and then a smile. This snapshot can later be used in an opening or closing statement with excerpts of their testimony to present your witness in a more favorable light.

5. Control Nervous Tics This is probably the hardest to stop, but nervous tics can become readily apparent given the length of a deposition. Work with your witness to be aware of any they may have.

Once the appearance of a video is under control, then comes the meat of the matter, the questions and answers. Obviously, do your normal due diligence in preparing your witness for the questioning of the exam. But it is also important to take a few minutes to give your witness (and yourself) a few pointers on the question and answer process to ensure their testimony comes across clearly and has the maximum impact in court.

  • Do not talk over the witness or opposing counsel. The court reporter will clean up the overlap, but it still comes across in the video and can make a clip of the testimony unusable.
  • Instruct your witness to wait to start their answer until after any objections. Objections can be cut out if they overlap with an answer.
  • After a lengthy objection and colloquy, make sure to have the question read back or repeat the question yourself. A good video clip needs a clean question and answer.

Deposition videos are a necessary and important part of many types of litigation. If you control the creation of the video, you can head off bad deposition videos before they happen.


Daniel D’Angelo is a Senior Project Manager at Nextpoint.  He has over 6 years of in-court “hotseating” experience working on over 50 matters across the country.  He also manages Nextpoint’s Evidence Room and Support Desk.

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If it seems like there’s been a lot of eDiscovery sanctions lately, it’s not an illusion. The number of parties and lawyers being hit with sanctions and adverse inferences for eDiscovery failure are, in fact, on the rise. Obviously, sanctions are a bad thing, but it’s also a sign of maturity in the law.

Last week, guest blogger Joshua Gilliand of Bow Tie Law, wrote a guest post that took a deep look at sanctions issued in the recent Coquina Invs. v. Rothstein suit, investigating how well-meaning lawyers wound up getting sanctioned for eDiscovery failures. However, sanctions like this are not happening because lawyers are being blindsided by new complications in litigation. These penalties are being imposed because attorneys are failing to fulfill their well-defined and obvious obligations.

Defining What is Reasonable

Civil litigation exists largely because of one word: reasonable. Civil litigators have to prove their client had a “reasonable expectation,” or demonstrate “reasonable” damages from an action, or had a “reasonable expectation.” The judge sits in the middle, balancing the competing claims and counter claims, hopefully assigning a reasonable judgement.

What is reasonable?

eDiscovery: What is reasonable is no longer up for debate.

However, you can argue that in eDiscovery, what is reasonable is not really up for debate any longer. In fact, most sanctions seem to be the result of mistakes or inexplicable lapses to perform well-defined, routine, and obvious tasks.

For example, everyone knows that Samsung lost it’s massive patent infringement suit with Apple. What many people are forgetting is that Samsung dug itself a deep hole at the outset with a major eDiscovery failure, resulting in an adverse inference. What was the mistake? Probably the most basic and obvious function for litigators in the discovery phase: getting the client to stop deleting emails in anticipation of litigation.

It Doesn’t Get Much Clearer

When eDiscovery was still a nascent industry, judges were creating the rules and obligations from scratch. Now, the rules for sanctions and adverse inferences is clear. In fact, in the recent Stephen Omogbehin v. Maria Cino employment discrimination case, the court simply applied a standing four-prong test to determine whether spoliation occurred. The test is simply: demonstrate that [1] evidence was in the party’s control; [2] the evidence is relevant to the claims or defenses in the case; [3] there has been actual suppression or withholding of evidence; and, [4] the duty to preserve the evidence was reasonably foreseeable to the party.

Other sanctions are being issued for blatant spoliation. In the recent EEOC v. Fry’s Electronics the court issued sanctions against the defendant in a sexual harassment case for  intentionally withheld this information and the related documents from discovery. The sanctions include a $100,000 penalty, although the court stopped short of entering a default judgment against the defendant.

eDiscovery is a complicated business, so missteps are to be expected. But as Joshua laid out last week, mistakes are most likely the result of carelessness or misbehavior, not because the law is confusing. In fact, the reason we see a high number of sanctions is not because the law is ill-defined, but because the courts no longer have patience for such failure. The updated Federal Rules of Civil Procedure have been in effect since 2006, meaning lawyers have had more than six years to internalize best practices in discovery of electronic records. In fact, lawyers who play by those rules will have an advantage over any adversaries that try to take short cuts or ignore the existing body of case law.

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A guest-post by Joshua Gilliand


 
There are phrases a lawyer never wants to hear a judge say. One is your law firm “acted negligently in failing to comply with its discovery obligations.” Another is your client “acted willfully in failing to comply with its discovery obligations and assist its outside counsel to properly litigate this case in accordance with the Federal Rules of Civil Procedure and the Federal Rules of Evidence.”

Both phrases appear in Coquina Invs. v. Rothstein. The facts have a Qualcomm-esq theme and highlight the need for project management like a fireball in the night. At a fundamental level, attorneys should not be afraid to ask their client questions. Moreover, trial counsel should never assume documents are only maintained as paper.
Too Many Cooks in eDiscovery

A lot of things went wrong in this case. The Court stated the law firm (we’ll call them Law Firm 1) had over 200 attorneys working on the case, which included different attorneys handling the banking issues, document production, pretrial and trial practice. The Court described the number of lawyers on the case as “too many cooks spoiling the broth.” Coquina Invs. v. Rothstein, 2012 U.S. Dist. LEXIS 108712, 4-5 (S.D. Fla. Aug. 3, 2012).

The client also retained a second law firm (Law Firm 2). Law Firm 2 hired a consultant to perform work related to the case handled by Law Firm 1, which was not related to Law Firm 1. The Court described that discovery was conducted in an “Inspector Clouseau-like fashion,” except there was nothing funny about it.

 
Not Now Cato!

The Plaintiff argued in their Fourth Motion for Sanctions that the Defendant altered a Due Diligence form to mislead the jury. While that is an excellent lineal attack, the facts were a lot more complicated.

A month after the Plaintiff’s filed their motion, the Defendant produce a document that the attorneys initially denied existed. Furthermore, Law Firm 1 filed a motion for the substitution of counsel (enter Law Firm 3).

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It’s hard to believe in 2012 that two terabytes of data is too much for anyone to handle, especially a government agency. But according to Law.com, the DEA is no longer pursuing extradition for drug charges against a doctor because it doesn’t want to bear the cost of storing that amount of case evidence. It should be noted that two terabyte hard drive is available for around $100, and affordable, long term cloud storage is available that provides complete backup protection. Heck, with Nextpoint you could import, process, store and/or review 2 TB of data without (presumably) making a dent in the DEA’s litigation budget.

Data Overload?

The article speculates that the DEA cried hardship as a way to drop a case that had a low probability of success. The agency and police in Iowa have dismantled two illegal Internet pharmacies, but have been waiting in vain to extradite a suspect who had fled to Panama. In the meantime, the agency had to hold on to two terabytes of data. “Continued storage of these materials is difficult and expensive,” says Stephanie Rose, the U.S. attorney for northern Iowa, calling it, “an economic and practical hardship.”

The DEA says it knows exactly where the doctor is, but since Panama does not extradite citizens, there is little chance they would ever be able to capture the fugitive doctor. It’s unclear if the DEA’s IT department is taking the fall so the agency can drop the case, or if it really doesn’t have the capacity for two terabytes of data. But in this age, be suspicious if anyone claims data storage is a burden.

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As it begins to dawn on people that social media is discoverable for litigation, it’s tempting to think that tweets, posts, and content can simply be downloaded from the provider. For example, The New York Times recently reported that Twitter is working on a way to retrieve old, expired tweets, and Facebook already has mechanisms for retrieving and downloading old posts. However, lawyers should not think they can rely on this approach for the demands of litigation.

Let’s start with the problems with Facebook’s export tool. The bottom line is that it is simply a snapshot of a Facebook page at a given point in time, and not a complete, forensically sound piece of evidence. If a user downloads a copy of content from Facebook after they receive a discovery request or regulatory inquiry, it may not contain all of the information associated with a post, like who shared a post. In addition, once a post is deleted, it’s deleted forever and likely unrecoverable. And Facebook’s functionality is limited to the account owner, so users cannot retrieve any public profile’s or fan page’s archive.

The Real Time Advantage

Nextpoint’s Cloud Preservation takes advantage of an authentication and authorization technology provided for third party applications by Facebook, commonly called OAuth. OAuth is the de facto standard used by Internet applications like Google and Twitter to share content. Cloud Preservation uses Facebook’s Graph API (which uses OAuth  for authorization) to crawl private Facebook profiles capturing entire posts, all associated and linked content, and everything a lawyer would need for litigation or regulatory request.

Not only does Cloud Preservation capture Twitter content in real-time, but users can also crawl Facebook profiles anonymously, crawl other Facebook users’ profiles, and crawl age and country Facebook restricted pages. That means you are capturing content before it can be deleted or disappear into the cloud. While it may be possible to get social media content from a few service providers, it’s simply not credible to think it’s a sensible solution for true litigation preparedness.

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It’s getting hard to remember a time when everyone didn’t have Internet access available at all times. Or when every restaurant, airplane, and office park didn’t offer WiFi access. (How did people settle bar bets before Google was perpetually available?) Technology is so widespread and so reliable that it’s easy to take it all for granted. (Or, as comedian Louis CK puts it, “Everything is amazing and no one is happy.”)
Why Go Offline?
Courts Are Wired

It’s not too long ago that courts were practically Internet-free zones. Today, courthouses are still (most often) aging civic buildings with creaky plumbing, but even the oldest courthouses are wired for broadband. That means litigators ought to be able to do everything they do at the office while camped on site for a trial.

And in fact, according to the  2012 ABA Legal Technology Survey, a quarter of all litigators use their laptops for email and research in a courtroom, 28 percent of all litigators now use a tablet device in the courtroom, and 68 percent check their email on a smartphone. Nextpoint still recommends lawyers have a backup plan if you’re using the Net for courtroom presentations in case. But, for the most part, courts are like the rest of the world– wired and fully connected to the Internet.

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Forget Da Silva MooreApple v. Samsung is the most important case to watch right now. Two tech titans are squaring off in complex patent litigation involving huge volumes of digital evidence. Already, the case is proving a lesson in how to, and how not to handle digital evidence. 

Avoid an eDiscovery Case Killer

Samsung managed to dig itself a deep hole at the outset with a major eDiscovery failure. For its failure to stop deleting emails in anticipation of litigation, Samsung has been hit with an adverse inference, which is a potential killer to any case. The judge in the case imposed what he called a “modest, optional adverse jury instruction.” Even so, with an adverse inference, the judge is effectively telling the jury they are free to assume the worst about one party. Juries love conspiracies, which the inference implies, making it much easier for them to reach a conclusion against Samsung.

A Bad Attitude Towards eDiscovery

How does a mistake like this happen? Shockingly, Samsung was the subject of sanctions for spoliation of electronic evidence once before, in the matter Mosaid v. Samsung from 2004. Yet, the company has clearly not changed its habits toward electronic evidence.

There are a couple of theories as to why organizations are lax about eDiscovery habits. Despite a handful of multi-million dollar sanctions handed down for discovery failures and abuses, sanctions are increasing, but still rare. According to law firm Gibson Dunn’s 2011 Mid-Year Update on E-Discovery Cases, there were 68 sanction requests across the country in the first half of 2011. Law firms and large litigants may feel that it’s easier to disregard their duty to preserve than try to respond to a discovery request since the threat of sanction is still pretty rare.

Set Up to Fail

But a larger reason why attorneys still fail to manage basic eDiscovery duties may simply be inexperience. According to the recently released ABA Legal Technology survey, many lawyers are not prepared for eDiscovery. According to the report, only 159 out of 650 firms reported having an eDiscovery initiative. Compounding that situation, eDiscovery decisions are not handled centrally, with almost 40 percent of respondents saying it is up to individual partners to make most of the EDD decisions. That means it’s up to individual lawyers to be prepared to handle these issues.

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