Ever wondered how courtroom battles have evolved with the rise of technology?

Join us on this episode of Speaking of Litigation as Epstein Becker Green litigators Ken Kelly, Eric Moran, and Ed Yennock explore how technological advancements have reshaped the landscape of legal trials. From the days of low-tech (or no-tech) to the sophisticated digital tools we now rely on, technology has revolutionized case development, trial preparation, and presentation in the courtroom.

Whether you're a practicing lawyer or a new litigator, or simply curious about courtroom dynamics, this episode offers valuable knowledge and practical tips.

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[00:00:00] Ken Kelly: Hello, everyone. Welcome to this latest edition of Speaking of Litigation. My name is Ken Kelly. I'm an attorney in the Litigation Department in New York City of Epstein, Becker & Green. I've been practicing litigation law for more than five decades, and at the moment, I'm one of the co-chairs of the National Litigation Department.

[00:00:24] Ken Kelly: One of the topics that has intrigued us for a long time, and it's more and more intriguing as time goes on, is how technology has impacted our work in the courtroom. We've used high tech and low tech over the years, certainly in my career we've started with no tech, and we've come to all kinds of technological advances which help our cases get developed, help our cases be presented.

[00:00:52] Ken Kelly: And some of this will be new to some of you people, some people who are not practicing lawyers or some people who are just learning to be litigators. And it'll also be useful for people who have practiced law or doing trials, because it does refresh your recollection as to what's available.

[00:01:09] Ken Kelly: And as you'll see during the course of the presentation, some things are available when you wouldn't expect it. We'll have a few war stories, to use the expression, about that. So we'll demonstrate during the broadcast how technology can be used to more effectively prepare for trial and more effectively present your case, as well as use technology in setting up for trials.

[00:01:31] Ken Kelly: The issue of technology in the courtroom is critical for several reasons. First of all, jurors, and perhaps even judges sometimes, have now become so used to obtaining information in short videos that they start to expect it in the courtroom. You get information on YouTube, you get information on TikTok, you get information on Instagram, and people are used to getting information that is both spoken to them and shown to them at the same time.

[00:02:01] Ken Kelly: And we found out, and studies are done by jury consultants all the time, that not only do they have short attention spans, they tend to forget things which they don't see and hear at the same time. We've seen studies that show that people will remember only 10 percent of what they hear three days later.

[00:02:19] Ken Kelly: Only 20 percent of what they see three days later, but practically half of what they see and hear at the same time three days later, again, three days later when they retire to the jury room to deliberate. So that's important. This is how people expect to and do obtain information.

[00:02:38] Ken Kelly: Number two, tech that is not deepfake often provides incontrovertible evidence on the proof of facts. And we'll show you a few examples of that as we go along. And today we'll have a couple other examples that'll help your practice. And for our non-trial lawyer listeners, we'll let you know what's out there. So you can expect to see this when you go to trial or become a juror or have a case presented with you.

[00:03:01] Ken Kelly: Joining our discussion today is Eric Moran. Eric Moran is a partner in our New York and New Jersey office. Eric is a former federal prosecutor and an experienced civil litigator who has tried numerous criminal and civil trials in many different venues. As a prosecutor, he focused on public, criminal, and civil matters and handled high level corruption cases in trials involving the mayor of the city of Trenton, New Jersey, and the district attorney of the city of Philadelphia.

[00:03:30] Ken Kelly: Eric is a fellow of the American College of Trial Lawyers, and is also a member of the National Litigation Steering Committee. Eric, welcome.

[00:03:40] Eric Moran: Thank you, Ken. Good to be here.

[00:03:53] Ken Kelly: Also with us today is Ed Yennock. Ed is based in our New York office and has been a trial lawyer with a focus on the financial services industry. Ed and I have tried several cases together, and Ed is particularly experienced in navigating challenging and sensitive transnational discovery and liability issues. Ed, welcome aboard.

[00:04:03] Ed Yennock: Thanks for the introduction, Ken. You've been a true mentor to me as a trial lawyer, so I'm grateful to have the chance to talk with you on this topic.

[00:04:10] Ken Kelly: Thank you very much. Do you ever wonder, as a litigator or as a lawyer, how it was to try a case a hundred years ago, in the 1920s, for example? We have a video we're going to show you in a moment from the movie Inherit the Wind. It's a 1960 movie in black and white starring Spencer Tracy, and it tells the fictionalized story of Clarence Darrow, one of the famed trial lawyers of the era, and the Scopes Monkey Trial.

[00:04:38] Ken Kelly: This is an issue about whether teaching evolution in public schools was illegal.

[00:04:43] Film Clip: Courtroom scene from Inherit the Wind.

[00:05:06] Ken Kelly: In this clip, there is no air conditioning, no paper, no three ring binders, three ring binders that contain photocopies of pictures and documents five inches thick, no posters and no photographs.

[00:05:18] Ken Kelly: The court reporter is probably taking the record by shorthand. There's no documents and evidence because at the time there were no copy machines, no Xerox machines that distribute exhibits to everyone in the courtroom. You might ask then, how does Mr. Darrow, how can he do this? Isn't it true that most people, as I mentioned before, and especially jurors, forget things after 72 hours?

[00:05:44] Ken Kelly: Seeing is a little bit better, as I said before. But this is where Mr. Darrow and the actors in this particular movie show that winning a case, simply by force of personality and good witness preparation, will do the trick. Now let's skip to the present. Eric, can you give us an example of how tech has fundamentally changed, and how you presented cases when you were a prosecutor and how you present cases now?

[00:06:08] Eric Moran: Thanks, Ken. And I've been doing it for about two of your five decades, Ken, but even in that time the practice of law and trial practice in particular has changed dramatically with technology. You mentioned Inherit the Wind, that involved that trial of a teacher for the offense of teaching Darwin's theory of evolution.

[00:06:35] Eric Moran: And I remember that movie, where he hoisted a rock up and confronted the witness with a rock that was 10 million years old to undermine the theory of creationism and to support his client, the teacher's teachings about evolution. And yes, great famous trial, but today we're out of the stone age,

[00:07:01] Eric Moran: When I think about that, I'm recalling a case I handled while I was at the DOJ. And as a good example of how trials today differ from the Scopes trial in the 1920s. In a corruption trial that I handled in Philadelphia, there was a public official accused of accepting things of value in exchange for favors, political favors, official acts, and breaches of duty.

[00:07:35] Eric Moran: It was a quid pro quo. These cases rarely involved some kind of explicit promise back and forth, and always as trial attorneys at the DOJ, or the defense attorneys, we were left to argue about circumstantial evidence around a gift or a thing of value going one way, and an official act for the benefit of the giver going another way.

[00:08:02] Eric Moran: But in the Philadelphia case we had an image of the public official's cell phone, and all of the text messages going back and forth from the official to the gift givers. And it just so happened he was a prolific texter. We had texts in which vacations, cash, a car, other gifts, lavish dinners, all were being offered, down to the moment they were being offered.

[00:08:36] Eric Moran: With the inflection with which they were being offered. And within minutes came the promises that the public official made to look into certain official matters, to handle certain official matters, or to carry out official matters in his public capacity. And Ken, in handling this case, I prepared my rebuttal closing argument, which is something if you're with the Department of Justice in a federal criminal case, you get to do a rebuttal closing argument, and I was prepared to say, ladies and gentlemen, I used to stand before juries like this and talk about circumstantial evidence this way.

[00:09:20] Eric Moran: I used to say, they have not yet invented a machine that can look into someone's mind, and to tell you just what it is they're thinking. But, you all in your life experience can look at the surrounding circumstances to divine one's intent. What they do, what they fail to do, what they show, and what they hide and conceal.

[00:09:48] Eric Moran: But now, as I stand before you, I say to you they have invented such a machine, something that can allow you to see into the minds of the defendant in this case and know just what it is he was thinking moment to moment. And I was going to hold up my cell phone in front of the jury. And hopefully at that moment, they'd get the joke.

[00:10:12] Eric Moran: But it was true, in that case, moment to moment, we had a an understanding of just what he was thinking, the closeness in time between the quid of the quid pro quo and the quo coming back, the gifts being given, the promises of the official acts being exchanged, the cell phone made all the difference.

[00:10:38] Eric Moran: In that case, because we had an image of the public official's cell phone, we could and we did prove, moment to moment, just what this interaction was. And in fact, I think we would have proved beyond a reasonable doubt that it was, and convinced the jury that it was a quid pro quo, and I say I was prepared to deliver that closing, but Ken, I never got the chance to. Because after a couple, a few weeks of this devastating evidence coming in, that particular defendant, after a particularly difficult day, determined to go ahead and plead guilty.

[00:11:19] Eric Moran: So that's one way in which even in my time trying cases, technology has just changed the landscape of what we do as trial attorneys.

[00:11:31] Ken Kelly: Ed, have you ever used a text message at trial?

[00:11:34] Ed Yennock: I have, and I'll say that someday I'm going to steal Eric's would-be closing arguments as well, because it's fantastic.

[00:11:42] Ed Yennock: Look, I'd say in many, if not most cases, certainly in the employment space, getting the text messages is our highest priority in discovery. And that's especially true in arbitration, where the outcomes can be driven to an extent by equities and optics beyond just what's legally relevant. For example, often in financial services arbitrations, employees claim they were terminated without just cause and deprived of a bonus.

[00:12:11] Ed Yennock: Now, of course, agreements in that industry typically foreclose those kinds of claims, but that doesn't always deter employees from rolling the dice in arbitration on them. So we go for the text messages, and they often contain all kinds of admissions. For example, regarding the employee's expectations, or lack thereof, for a bonus.

[00:12:31] Ed Yennock: Or regarding the employee's feelings about her performance and the prospects for promotion. They're commiserating with their colleagues on this kind of thing, which is what you would expect, and what normal people do when they're not thinking about forthcoming litigation.

[00:12:51] Ed Yennock: And sometimes the messages show us that the employee was actually acutely planning on leaving the company in any event, separate and apart from the termination, and just hanging around to collect the bonus at the end of the year. So is any of that legally relevant to the claims? Sometimes, but often it's not. And that sort of context though is critical in arbitration, where the employee is tending to rely on having the equities purportedly on their side.

[00:13:12] Ed Yennock: So in other words, it's harder to garner sympathy for being terminated when your texts show that you had another job lined up, and you were planning on jumping ship. So that's an example of what you can get out of the text messages. And sometimes it's totally devastating to the claims.

[00:13:27] Ken Kelly: How do you get these text messages off of an adversary's telephone?

[00:13:30] Ed Yennock: Given how damaging the texts can often be, it's often a real fight to get them, and that's where a significant technological aspect will arise. An example comes to mind in a case that was brought by a cohort of employees who were seeking to recover millions in deferred compensation that had been contractually canceled when they joined a competitor.

[00:13:51] Ed Yennock: And one of the issues that can arise in that sort of case is whether the departed employee has actually been damaged. Employers in the financial services space often offer top tier candidates a sign-on payment that is specifically intended to replace the compensation that that employee would be walking away from at her prior firm.

[00:14:15] Ed Yennock: So the key word there is “intended.” Is the payment intended as a replacement or is it serving some other purpose? One can argue about how much that designation matters under contract law. But as I said, the arbitrators may well care about it, regardless of whether it's truly relevant or determinative under the law.

[00:14:38] Ed Yennock: And as Eric mentioned, how do you read people's minds to glean their intent? Because that's what we're looking for, the intent. And the answer, again, can be found often on the employee's personal devices. In the text messages and otherwise. What were they communicating before the lawsuit when they weren't being as careful?

[00:14:56] Ed Yennock: Now sometimes in, as in that replacement payment case that I mentioned, the adversary claims they don't have the relevant communications, personal emails or text messages, because they didn't save them, purportedly because they didn't see any reason to save them, and it's their custom to delete them periodically.

[00:15:16] Ed Yennock: Maybe they've gone through several new phones since the relevant time period. Maybe the phones are gone, maybe they were given to a family member, or whatever. But either way, the request is often met with, “what you're looking for no longer exists.” The text messages aren't there, if they ever were. And when you hear that, that the data is supposedly gone, now you have an inflection point.

[00:15:37] Ed Yennock: Does the client want to accept representation about what is supposedly gone and unobtainable? Or do they want to commit resources to do a forensic review of devices? And with a forensic review, you're trying to recover the data, of course. Or at least you're trying to learn more about the circumstances of the deletion of that data, which might support a “spoliation of evidence” claim down the road.

[00:16:02] Ed Yennock: In the litigation that I mentioned we obtained a huge amount of data. And the evidence showed that the employees did, in fact, receive replacement payments as suspected. That wasn't necessarily clear from the final documentation they had entered into with their new employers, but it was confirmed when we got a hold of the earlier inchoate communications.

[00:16:24] Ed Yennock: The important lesson from that and other cases, I think, is when you choose to pursue text messages and other electronic data, you go down that avenue of a forensic review, you need to take an incremental approach. So what do I mean by that? It means before you go to the court or the arbitrators and ask them to order an individual to hand over phones, laptops, to a digital forensics firm for extracting data, you need to be able to establish that it's warranted, in other words, likely to yield results.

[00:16:57] Ed Yennock: Now, maybe you have an admission from the other side that things were deleted, if you're lucky, and then it's easy to establish that it's warranted, but more likely you'll need to establish that there are certain types of communications and documents that common sense would suggest ought to exist, but they can't be found.

[00:17:15] Ed Yennock: They haven't been produced. And so you try to find ways to exert pressure on the other side to make representations that you suspect they won't be able to make, like you propose an ESI protocol where the parties have to certify to retention practices and the other side balks at it, right? Now you've got your sort of grounds for suspicion of digging a little deeper.

[00:17:35] Ed Yennock: But the burden is really heavy on you as the practitioner there, because courts and arbitrators often are going to be really hesitant to compel an individual litigant to hand over devices. They're going to view it as invasive, even though if done right it really isn't that invasive. The next thing you need to do, assuming you get some degree of latitude to pursue a forensic review, there's a question of scope.

[00:18:01] Ed Yennock: How wide of a net are you going to cast? And again, because you're trying to avoid a reflexive sort of rejection from the court or the arbitrators, the best bet in my experience is to start small and expand outward from there. So you get the phone, and then there's a forensic record that the phone was connected to a laptop.

[00:18:19] Ed Yennock: And so then you ask for the laptop, and then you learn the data may have been transferred from the laptop onto a family member's device. And so you ask for that. The point is you don't start off going scorched earth. You work your way gradually toward identifying all the devices that have been implicated.

[00:18:35] Ed Yennock: And then there's really important logistical considerations. You've got to have a thorough forensic review protocol that you're ready to propose to the court or the arbitrators when you ask for this, to give them comfort that this isn't going to prejudice the party who has to turn over their devices.

[00:18:51] Ed Yennock: You cover how the devices are going to be delivered. Who's going to handle them? What precisely is going to be done to them? When they're going to be returned. What are the search terms that are going to be run across them? And really importantly, what are the safeguards for privilege and sensitive, irrelevant information?

[00:19:09] Ed Yennock: Which often means that their counsel, the opposing counsel, is going to get the first crack at reviewing those documents to make sure they hit on the search terms. And after that, you've probably got months of being really vigilant about compliance and making sure that everything is being handed over as it should be.

[00:19:28] Ed Yennock: So it's all a lot of work, Ken, as you know, but the reward is potentially great. And frankly, sometimes the optics of uncovering admissions, and that's a painstaking, slow process, can be considerably more powerful than if the communication had just been handed over, preserved and handed over in the first place.

[00:19:50] Ken Kelly: I must tell our viewers that I worked on the case that Ed was just talking about.

[00:20:13] Ken Kelly: It was worth all the effort in doing that. But there's other technical things that are available that sometimes you don't think about.

[00:20:31] Ken Kelly: People have a tendency to say whatever they think, without even thinking about it, on Facebook. You probably all have friends who have said the craziest things, and things they’d be embarrassed by saying in front of anybody else, but they're more than happy to put it on Facebook. A couple of years ago, we had a case involving an individual who was fired from his employment who claimed he was incapable of working because of some heart problem that he had.

[00:20:59] Ken Kelly: In a couple days after he brought the lawsuit, one of his Facebook friends, and I use the word friends advisedly, sent us an envelope full of pictures from his, the plaintiff's, Facebook account, showing him on water skis, showing him on a Ski-Doo, showing him scuba diving. And we were able to use those pictures and some other information we got through discovery, because the trial judge at that point said, okay, this is fine.

[00:21:26] Ken Kelly: This is showing what this guy really thinks about his physical condition. We came up with the text and emails back and forth, and entries on his Facebook account, saying that, “I am Hercules. I am strong physically and mentally.” And quote, “feeling great, things are great, and I'm about to come into a lot of money.”

[00:21:45] Ken Kelly: This case didn't go well for the plaintiff after all that came out. There was another case that we had, we're using a simple gumshoe. We had a client who was a… which is a disability insurance carrier. They had a plaintiff who claimed he couldn't work because his back bothered him so much that he was incapable of doing anything except sitting in a chair.

[00:22:08] Ken Kelly: So the client hired a detective right out of a Hollywood movie with a movie camera to follow the guy around from his house to where he was actually working, where he was supposed to be incapable of working. And the following video we'll play now shows exactly, in a few moments, what this individual was doing when his back was making him incapable of working.

[00:22:31] Film Clip: Clip showing a man moving heavy objects and performing physical tasks.

[00:22:49] Ken Kelly: We had a pretrial conference with the magistrate up in Connecticut on this case. And we showed this video that you just saw to the magistrate. And he basically called the plaintiff's lawyer's side and said, if your client doesn't drop this case in five minutes, I'm gonna report it to the district attorneys sitting upstairs.

[00:23:10] Ken Kelly: Needless to say, three minutes later, they dropped the case because he was afraid of being criminally prosecuted for fraud. Eric, do you have, in your experience, the need for private eyes and gumshoes to follow witnesses around?

[00:23:24] Eric Moran: Gumshoes? Of course. I've worked and partnered with many, and still do to this day.

[00:23:31] Eric Moran: I did as a prosecutor, and I do as a defense attorney. And the value of someone who's an experienced investigator cannot be understated. But it's nice to have technology to corroborate those witnesses' testimony. And as it turns out, Ken, that technology isn't just in cell phones, it's everywhere.

[00:23:56] Eric Moran: I'm reminded here of a case early in my career as a prosecutor that I handled. It was a suppression hearing on a drug case, and in that case, there was a caravan of unmarked police cars that were traveling through Newark, New Jersey, when they approached and stopped a vehicle. Now the testimony was the vehicle, which was an SUV, lurched into traffic without using its signal.

[00:24:23] Eric Moran: And therefore there was reasonable suspicion to make a traffic stop and to confront these individuals. The occupant to the car, though, said that they didn't move. They were sitting in a legally parked car parallel to the curb when they were approached by the police. And the car was searched for no reason whatsoever.

[00:24:45] Eric Moran: And so the issue at the suppression hearing turned on whether or not the car was parallel at the curb or did it lurch away into traffic, thereby committing a traffic violation and justifying the traffic stop. What hung in the balance? The search of the car and the result of that search, if there was no reasonable suspicion for a stop, could have been suppressed.

[00:25:12] Eric Moran: And the contents of that search included a kilo of cocaine. So it was the two defendants' words, we were sitting parallel to the curb, minding our business, no traffic violation, against one officer who claimed that he witnessed a traffic violation. And we were headed to the suppression hearing. And as we prepared for the hearing, we conducted a site visit to Bergen Street in Newark, New Jersey.

[00:25:40] Eric Moran: And we saw that up the street was a municipal traffic camera that periodically, we learned, captured footage from the block on which the stop occurred. We were able to then preserve and gather the footage that was taken by that camera, and that footage revealed exactly the date and the time of the stop in our case.

[00:26:04] Eric Moran: What it showed was a line of cars parked on the street. It showed the caravan of unmarked Newark police vehicles, and it showed one vehicle, the subject vehicle, halfway in and halfway out of its parking spot, having lurched away from the curb. That ended the suppression hearing. It totally undermined the two defendants' statement that they were parked parallel to the curb in a legal parking spot, and it corroborated the gumshoe, Ken, in this case, which was the solitary police officer whose testimony was that the car lurched out without using a signal and committed the traffic violation.

[00:26:50] Eric Moran: And so suppression there was denied, and the defendants later pled guilty. But, had that video shown that the car remained in line with all of the other cars parked on the street, parallel to the curb, and that they were indeed minding their own business, the outcome may well have been different. But as investigators of cases, we look to technology to corroborate or rebut the allegations that we're dealing with.

[00:27:23] Eric Moran: And as trial attorneys, we need to collect that and exploit that technology to prove our cases. And a lot of times, all we have to do is look around, because this corroborating or rebuttal technology is everywhere.

[00:27:38] Ken Kelly: There are, as you mentioned, Eric, there are surveillance cameras everywhere.

[00:27:43] Ken Kelly: We had a case about 15 years ago where we used surveillance cameras to basically win a case on a summary judgment motion. It's even funnier than that, but we'll tell you the story. We had a case where a New York Post photographer was ensconced on the stairways leading to a major hospital up in upper New York.

[00:28:04] Ken Kelly: He was waiting to take photographs of a New York City celebrity who was going to visit his brother, So the security guards at the hospital very politely came up to the fellow and said, look you're on private property now, you're in the way of people, could you kindly move over to the sidewalk which is public property and take your pictures then.

[00:28:28] Ken Kelly: The photographer didn't go along with that at all, he was adamant that he had a first amendment right, John Peter Zenger, I could sit here and take pictures, this is newspapers and so on and so forth, and I'm not going to move and I hear you. So basically the police officers warned him very politely, if you don't leave we're going to have to arrest you.

[00:28:51] Ken Kelly: Because these security officers were not police officers, but they were special officers who in New York City have the ability and the license to arrest people and actually do arrest people from time to time. They picked the guy up, they dragged him out, put him in a cell in the hospital, and he claimed that he was injured because the officers used excessive force in arresting him and dragging him away.

[00:29:16] Ken Kelly: If you read the complaint, you may say, gee, this is pretty terrible. They dislocated the guy's shoulder when they were doing this. Well, we have security cameras taking pictures of all this, and what was more amazing than anything else, the guy was wearing around his neck a little recording device. And when the police or the security guards came over to him and started asking him politely to move, he turned the recording device on.

[00:29:39] Ken Kelly: So when we got into court, the federal court in New York, we basically got the security device and we got the recording from him in pre-trial discovery and synced them together and played it for the judge who was going to hear the case. And here's what the video showed.

[00:29:55] Film Clip: Clip showing the reporter refusing to leave the hospital’s entrance after being asked several times to move to the curb, and subsequently being arrested.

[00:31:24] Ken Kelly: So you've seen this. You notice that he was a bit of a smart aleck, telling the officers, I hear you, I hear you, I hear you. That type of thing. And also you hear him say, it's rolling, meaning his own recording is recording all this stuff.

[00:31:38] Ken Kelly: We brought this to court. The judge had a television, video recorder and a tape recorder all set up together. We played the video and the judge basically said you can make a motion for summary judgment and you don't have to worry about making an oral argument. You've just had it.

[00:31:55] Ken Kelly: The case was dismissed because the video and the audio don't lie. And the second circuit affirmed the dismissal. And we mentioned earlier that a court reporter in the Scopes case was taking shorthand notes for the trial testimony. How does it work now?

[00:32:09] Ed Yennock: So in the Scopes Monkey trial days, and largely up until a couple of decades ago, as you said, the court reporter’s Stenotype machine produced a paper roll of indecipherable shorthand that would have to then be translated afterwards into something coherent.

[00:32:25] Ed Yennock: Now, the modern machines that they use operate on microprocessors, they have an LCD display, and leverage voice recognition as well. So now the machine will automatically translate the shorthand into recognizable text immediately in real time. So it's been a while now that attorneys have been able to receive a live feed of that translation, whether on a tablet or their laptops, as the testimony is ongoing.

[00:32:50] Ed Yennock: But the technology keeps improving. So it's getting smarter for one, and the automatically generated real time transcripts will continue to become more accurate. And AI is playing a role in that as well. But the functionality of that service for practitioners like us is also improving. So not long ago, I would say that that technology was mostly useful for read backs, for example, impeaching a witness with testimony they gave earlier in the day.

[00:33:18] Ed Yennock: But now there are add ons that practitioners can leverage to begin flagging critical testimony for later use, annotating it and organizing that testimony into buckets based on relevance.

[00:33:42] Ed Yennock: [I]magine I'm going to have very little time to prepare my closing arguments once the evidence is in. The product essentially allows me to begin organizing the testimony for that purpose while the testimony is happening. So first off, before testimony begins, I can customize my issue annotations.

[00:34:01] Ed Yennock: So they read as Issue 1, Issue 2, etc. by default, but I can change them to be anything I want. Liability, damages, whatever specific issue is in the case. So as the testimony starts, if I hear something critical to one of those issues in the case, I just click and drag, assign the issue to it, and I can add a custom note in there as well.

[00:34:23] Ed Yennock: Then I can see and immediately jump to those annotations if I click “show list” in this program, and I can generate a partial transcript anytime that only includes my selected testimony and my notes. So we don't need to weed through a full transcript. Now it sounds really simple, but being able to leverage tools like that provides a huge advantage at trial, particularly in an arbitration where you often don't know how much time you're actually going to have to prepare the summation.

[00:34:53] Ed Yennock: Might be six hours, it might be six days, six weeks. You just don't know. So a lot of the time, I probably wouldn't have time to go back and read the transcripts and pick out what I need. That part basically has to be done the moment the final witness is done testifying. That way I already have all the raw materials picked out, and then I can just focus my time, whatever that time is, on shaping those materials for my closing.

[00:35:18] Ken Kelly: I gotta tell our viewers that Ed and I did this trial together about six months ago, and while I was cross examining a witness, Ed was sitting next to me, typing away, annotating the transcript in green ink and in red ink, and it was being sent back automatically to one of the associates in our office, who was working on the summation, which we were going to do the very next day.

[00:35:38] Ken Kelly: So when we got back to the office after the trial, this associate had assembled everything that Ed had put together. So he and the associate were able to put together the summation, which they did the very next day. It was absolutely an amazing thing that he could do just with a laptop and connection to the internet. Eric, what are the other trial technologies that come into play these days?

[00:36:00] Eric Moran: Ken, I have to come back to the idea, and the utility, as trial attorneys, of the mobile device. Mobile phones have become our alter egos. They are an avatar. They are an all seeing, testimonial witness to our every move, our location, our communications, and often our very thoughts.

[00:36:33] Eric Moran: And what I mean by that is that by analyzing someone's cell phone, after going through all of the logistics that Ed described, to carefully and without overreaching get a court to agree to compel the production, or the image of a cell phone, we can obtain a report of the contents of that cell phone that outlines the user's behavior across any number of platforms, any number of apps, and easily take that behavior and sort it into a chronology to understand their communications, their photographs, their internet and social media views, their searches, and their site visits across a number of applications, and do it all in chronological order.

[00:37:30] Eric Moran: And that is very useful. And so imagine a person who uses an iPhone to receive a telephone call from a friend who's an executive at a public company. And that friend is exposed to material, non-public information that she is duty bound to keep secret. During the call, the iPhone user also uses the device to search the stock price for the company.

[00:38:02] Eric Moran: And to also search the stock of a second company, which by the way, the executive is in secret conversations about an acquisition. Then the iPhone user calls his broker and he places an order to purchase a substantial amount of stock of that company, and he sets up, using that same device, a media alert to get news alerts about company one and company two, that would come straight to his phone.

[00:38:32] Eric Moran: And finally, a short time later, the iPhone user gets an announcement on his iPhone that the company he invested in is indeed being purchased by the second company, the one he searched, and the stock price soars. The iPhone user dutifully messages his broker the word, “sell,” resulting in a windfall. Almost all of the evidence that the government may need to launch a full scale investigation for insider trading, maybe even to bring a charge, can be gleaned from downloading the investor's cell phone and organizing that data chronologically, simply put.

[00:39:20] Eric Moran: What I've described is hypothetical, but it is a common story in how these investigations unfold. These are circumstantial cases. But the gap is closing. Because of these devices, there is not much guesswork that needs to go into what that call between the investor and the executive really was about.

[00:39:43] Eric Moran: And by the way, Ken, if these two hypothetical actors were savvy enough not to do anything over the cell phone, and the information was exchanged at an in-person meeting rather than electronically, then analysis of their phones could yield evidence of their location, and in fact their meeting. So if the call didn't occur, and in fact occurred at a diner, if investigators knew the identity of the tipper and the suspected tippee, then they could get that information about the meeting nonetheless. Cell phones are a trove of information.

[00:40:25] Ken Kelly: I do recall that in one of the trials down in Atlanta with Mr. Trump, the prosecuting attorney at the criminal trial was disqualified because the lawyers for Mr. Trump were able to trace his movements back and forth visiting the district attorney, simply by using the telephone.

[00:40:45] Ken Kelly: Ed, do you have any other comments with regard to tech improvements and how we actually manage the trials.

[00:40:50] Ed Yennock: Yeah, I think a lot of what we've been talking about today, right, goes to how technology improves, I would say, our command over the evidence. Not just getting the evidence but our ability to organize it.

[00:41:03] Ed Yennock: And that extends to presenting it in the courtroom as well. Technology has dramatically improved the logistics of presenting evidence in a courtroom or an arbitration room. In complex litigation, of course, you'll often have hundreds of documents that you might want to show to a witness, thousands of pages of deposition transcripts that you'll need to have at your disposal as well.

[00:41:26] Ed Yennock: And courtroom presentation software allows you to call up these documents instantaneously and display them on the screen for the judge, the witnesses, and the jurors. And you can manipulate them for effect. For example, highlighting them in real time, or making a side by side comparison of documents, or zooming in on certain facets of an exhibit.

[00:41:46] Ed Yennock: All of that, not only is efficient, but increases the odds that you'll leave the desired impression with the fact finder. That they're going to take away from that piece of evidence precisely what you wanted them to focus on and what you intended them to take away. I often think of trials like a series of moments, where one of your major goals is to just accumulate more memorable moments, positive memorable moments, than the lawyers on the other side.

[00:42:12] Ed Yennock: And this sort of technology helps you create those moments.

[00:42:16] Eric Moran: I have to agree with Ed. Technology, for me, is a very valuable tool to help take into account the various ways in which people learn. This should be paramount as a trial attorney. Some of us are visual learners. Others are auditory learners.

[00:42:39] Eric Moran: Some learn by reading and writing, and others learn by hands-on activities. And we have to always keep this in mind. How does our audience learn? And we may not know how our audience learns from among those styles. And so technology can help trial lawyers deliver information in a manner that is most likely to appeal to as many of these learning styles as possible.

[00:43:05] Eric Moran: During a trial that I handled for a New Jersey mayor, as a prosecutor, this was another corruption case. We had a very important piece of video footage, which also had audio that was taken by a cooperating witness of a corrupt transaction. This was the delivery of cash to an intermediary that was intended for the mayor of this city.

[00:43:34] Eric Moran: And it was given in exchange for the mayor's help with municipal approvals. Now, we were faced with a choice. How do we publish this evidence? It was a video and it had audio. It was really important. We could have just played the key video and left it at that, but the subtleties of their language, the speed and the cadence of their speech and the specific words that they actually chose to use all mattered very deeply to convey the corrupt nature of the transaction.

[00:44:10] Eric Moran: So we prepared transcripts and we did a few things. We gave the jury physical binders. This is as low tech as it gets. We printed these things out, put them in binders and we transcribed the whole interaction and we put it in that binder for the jury. We also published the video on a large screen in the courtroom in full view of the jury, both on a movie screen and on television screens at each end of the jury box. We played the audio of that footage in open air in the courtroom.

[00:44:50] Eric Moran: And the last thing we did was on the video that we were publishing, we took the transcript, and through technology that's available put a rolling transcript of the words at the bottom of the video itself. I will never forget as a trial attorney, as we published the exhibit, I watched these 16 jurors and saw what I think was every single learning style unfold. Some of the jurors watched the video with rapt attention. Others had their heads buried in the binders that we gave them, following along with every word that was spoken in the transcript. And still others sat back with their eyes closed with their heads back listening to the audio.

[00:45:48] Eric Moran: They might have been sleeping, but I imagine they were listening to the audio. [laughter] I hope they weren't sleeping. And as trial lawyers, my takeaway from that is we are nothing if not teachers, but it is us, not the students, who are graded at the end through either a favorable result or an unfavorable result for our clients in the trial.

[00:46:15] Eric Moran: Technology is a vital tool to make sure that we're taking into account all of our students, all of the jurors' learning styles, and that's one thing I'll never forget about that mayor in New Jersey.

[00:46:34] Ken Kelly: I've got a story that shows that we use videos for a completely different point.

[00:46:39] Ken Kelly: Not to prove anything, not to establish any evidence, but to basically create a mood that will have the finder of fact realize what we're trying to prove at the end of the day, without actually arguing the case. We had a case once where we used a video to show what a great job a group of advertising executives had done, and after they did this job, they left and joined another advertising agency, stealing our client, or stealing our client's client, and taking the intellectual property that our clients had developed.

[00:47:14] Ken Kelly: We brought an American Arbitration Association case against these individuals. And we wanted to show how valuable and effective the intellectual property that these account executives had put together really was. It really wasn't proving anything whether these people had obligations to do anything.

[00:47:33] Ken Kelly: It had nothing to do with the law itself. But we wanted to create a mood to show what was really going on here, and why our client was bringing this case. So what we did is we asked the creative people at the agency to put together a montage of advertisements that they had done for the most important client, and that had the biggest result, and the client was Mercedes-Benz.

[00:48:55] Film Clip: Clip showing various ads the client had conceived and interviews discussing the ads’ positive effect on sales.

[00:51:47] Ken Kelly: Now, it's rather amusing, some of the advertisements you may remember, if you're old enough to remember what was going on back in the 1990s. But this was a great exhibit. The arbitrators were enraptured by it. And they really got the point that our client had been damaged substantially. Now I gotta tell you, this is only probably possible in an arbitration.

[00:52:09] Ken Kelly: I don't think a court would ever allow us to do this as part of an opening statement. But that was the point. It really did work. Now, I have another story that shows how even in a routine employment case, employment discrimination case, high tech could actually work, and work to our great advantage.

[00:52:29] Ken Kelly: About 20 years ago, one of our clients was a large bank. It was sued by a gay man claiming he was fired, with the concurrence of the CEO, because of his sexual orientation. Now, as it turned out, the CEO had promoted him four years earlier. And this turned out to be a cover story on New York Magazine.

[00:52:48] Ken Kelly: The CEO of the company was really incensed about this because, number one, he was named in the first paragraph of the story, and number two, he had promoted the guy four years earlier. As a matter of fact, when he promoted the guy, the fellow sent him a thank you note saying thank you for promoting me even though you know I am gay.

[00:53:07] Ken Kelly: And he sent it to the CEO on pink stationery, because the guy had a bit of a sense of humor. Four years later, he's fired. When he brought the case, his claim was that his boss, a woman, fired him because of his sexual orientation, even though she herself was gay. Although she was not public about it like he was.

[00:53:26] Ken Kelly: Well, she received a letter basically threatening to out her if she testified against a fellow gay person. So we thought that this was a clear instance of witness tampering, and we were going to go to the federal court to try and get this individual, who wrote the letter, punished for witness tampering.

[00:53:44] Ken Kelly: So we got a subpoena from the court addressed to this individual. We went to serve it on him at his apartment in downtown Manhattan and learned that he had died six months earlier. So we originally thought this had to be written by the plaintiff. So we compared the handwriting. We've got a handwriting expert to compare the handwriting on the letter and handwriting on the thank you note.

[00:54:02] Ken Kelly: And again, it didn't work, but fortunately the secretary of the CEO saved the envelope that the thank you note had come in. And we were able to get a DNA sample from the envelope for the threatening letter and the envelope for the thank you letter. We gave it to a DNA company that actually did the laboratory, that actually did the examination.

[00:54:23] Ken Kelly: And it came out that the samples of saliva on the two envelopes were 99.9 percent certain that it was the same individual who had licked the envelopes clean. So we took a deposition of the individual, and can you imagine the shock on his face when we handed him the report by the lab showing that these two envelopes were the same.

[00:54:44] Ken Kelly: We, of course, had him identify the letter that he had written, the thank you note, many years earlier. But without showing the little part of the saliva that had been taken out. The lawyer from the other side, representing the plaintiff, almost fell off her chair and immediately terminated the deposition, walked out of the room with the client.

[00:55:03] Ken Kelly: And the next morning at 9 o'clock, I got a note saying we're going to withdraw the case. So, you get DNA evidence, you have it for murderers and all these other crimes, but for this routine employment case, employment discrimination case, we had this DNA evidence.

[00:55:19] Eric Moran: Ken, that is an amazing story and it's one of lawyers making good use, and trial lawyers making good use of DNA evidence and other technological advancements that are available to us.

[00:55:32] Eric Moran: But I have to point out that all the advantages that are available to us in a way are counterbalanced by some of the disadvantages, right? Not every case, in fact, most cases are not DNA cases. And we, as trial lawyers, are confronted by a population of jurors who have become used to seeing CSI on television, DNA miracles.

[00:56:05] Eric Moran: And all the way to the point where it can look bad if you don't have that type of evidence, evidence that they're used to seeing on TV, in these real trials. Most of our cases, it's the reality, have nothing to do with DNA though. And so when we undertake a trial without that kind of evidence, without high technology evidence, DNA or other kinds of forensic analyses, then we have to manage the expectation of our fact finders.

[00:56:44] Eric Moran: We need to account for what I call the “CSI effect.” And this simply can be done by telling the finder of fact, if it's a jury or arbitration panel, at the outset of the case, what they're going to see and what they're not going to see. And if they're not going to see DNA evidence, explain why it's just not that kind of case.

[00:57:07] Eric Moran: If we don't, as trial lawyers, then we make that decision at our own peril. We might find ourselves scurrying to respond to our adversary when she stands up deftly in her closing argument and asks the jury, all of whom may be products of the CSI culture, where is the DNA evidence? Where is the location data from the cell phones?

[00:57:35] Eric Moran: Where is the fingerprint analysis? If there was any, you would have seen it. But there's none because my client wasn't there. And that may be a very unfair expectation held by the jury, but as trial lawyers, one that we have to be aware of, and we have to account for in our work.

[00:57:56] Ed Yennock: Following on that point about expectations, I think there's a kind of a related point about the pressure to over rely on technology simply because it's available, because you have it. And what I mean by that is the ultimate objective is to make connections with your fact finder. Whether that's a jury or a panel of arbitrators.

[00:58:17] Ed Yennock: You're trying to break through to them with your facts. And also just bring them around to liking you and trusting you as an advocate, and layering in more technology all the time doesn't necessarily always advance those goals. So I would say it's not so much a downside, but it's a risk that as a trial lawyer, you have to think about. If I want the jury or the arbitrators focused on me and nothing else, maybe in this spot it doesn't make sense to have a lot of graphics and a lot of heavily technology-based courtroom presentation.

[00:58:53] Ed Yennock: Maybe it's the right choice sometimes just to go with the old fashioned way. So I think it's just important to do a little bit of self editing sometimes and ask whether the technology is going to help punctuate your message or whether it might actually be a distraction. And you just proceed from there.

[00:59:09] Ken Kelly: Well this works both ways. Everybody knows, who does the trial work, that we take depositions of the other side during the course of the pretrial preparation. And a deposition basically is an eliciting testimony from a witness, in your office, who's on the other side, to try and find out what he knows, what she knows, what he didn't do.

[00:59:31] Ken Kelly: You can ask questions that say, with regard to, say, a harassment case, did you record anything of what the perpetrator said to you on these 15 different occasions he propositioned you? Do you have any videos? People will answer the question truthfully, if the answer’s no, and no, and no.

[00:59:52] Ken Kelly: Then when you get to the trial, if you really want to be a tough cross examiner, you could say you never had any, you don't have a single video, a single audio recording of any of these allegations that you're saying. Isn't that correct? And you know the answer is going to be that it is correct because you already asked the question.

[01:00:07] Ken Kelly: This may be the reverse of what Eric said a minute ago, that people are expecting that you got a recording to substantiate what your claim is. If you don't have a recording, maybe it didn't exist. Eric, any takeaways from all this?

[01:00:20] Eric Moran: I would say, Ken, the biggest takeaway about technology put to use in trial work is that trials are about empathy.

[01:00:32] Eric Moran: We are teachers as trial lawyers and we must understand how our audience learns. The sequence, the cadence, the mode of presenting the evidence, all matter deeply to having the finder of fact retain key evidence. This starts at the investigation stage.

[01:00:58] Eric Moran: During our investigation, and as you say, Ken, during discovery, we as advocates have to work backwards from what we think the evidence, or what we wish it to be, at trial. We need to leverage the rules of discovery and our ability to subpoena, to marshal that evidence, technological and otherwise, and make decisions about its presentation that account for how our audience learns.

[01:01:22] Eric Moran: And if we're trying a low tech case, as many cases are, manage the CSI culture, manage those expectations, inoculate your case from a jury who may be suffering under some unrealistic expectations about what most trials are about, from blaming you for not presenting that kind of evidence.

[01:01:45] Ken Kelly: Ed, what's your takeaway from all this?

[01:01:47] Ed Yennock: I think I have a sort of similar overarching takeaway, Ken. It's clear the technology in the realm of personal use is shrinking our collective attention spans, right? We see studies with empirical data on this, and we all see it to be anecdotally true as well.

[01:02:05] Ed Yennock: People are overloaded with information. They generally expect to be entertained. They anticipate instant gratification. It's just where we're headed, and there's no reason to think that this kind of significant societal shift doesn't also apply to the realm of trial advocacy, your arbitrators, and your jurors.

[01:02:22] Ed Yennock: It's reasonable to assume that they have less bandwidth and less patience overall than they would have before. So it's critical as advocates that we know how to leverage technology to conform to these expectations and shifting sort of norms.

[01:02:37] Ken Kelly: I agree with you. Juries do expect that both sides, even the plaintiff side of the individual case, will come up with some type of video presentation or slide show throughout the case.

[01:02:50] Ken Kelly: And that I don't think we should fear that we're gonna be looking like the giant trying to squash a little person because we have all this technology at hand. The last couple of trials we did, Ed and I, the other side had as many slides as we did. Simple as that. Listen, I want to thank our guests for appearing today and giving their insights on the use of technology in the court.

[01:03:12] Ken Kelly: I'd like to thank our audience for watching and listening. And I ask you please subscribe to Speaking of Litigation on YouTube or wherever you get your podcasts. Thank you very much, guys.

[01:03:22] Eric Moran: Thank you, Ken.

[01:03:23] Ed Yennock: Thanks, Ken.

About Speaking of Litigation

No business likes litigation. Lawsuits and trials can be stressful, unpredictable, and often confounding—even for battle-scarred business leaders. But they’re something almost every business must confront. The Speaking of Litigation video podcast pulls back the curtain for an inside look at the various stages of litigation and the key strategic issues businesses face along the way. Knowledge is power, and this show empowers executives and in-house counsel to make better decisions before, during, and after disputes. Subscribe to Speaking of Litigation for a steady flow of practical, thought-provoking insights about litigation from Epstein Becker Green litigators.

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