Working with Electronic Records at Mediation, Arbitration, or Trial (An Excerpt from “Electronic Discovery for Small Cases”)

Adapted and excepted from Electronic Discovery for Small Cases: Managing Digital Evidence and ESI by Bruce A. Olson and Tom O’Connor, now available from LPM Publishing.

At the end of the day, after you have gathered all of your electronic records, analyzed them, and determined which are truly relevant, you must be able to use them to help bring about some resolution to the litigation in which you are involved. Whether it is in mediation, arbitration, or trial, you must have a method of displaying the electronically stored information (ESI) you have determined is relevant to your case. One of the advantages of working with records in electronic format is that they are easy to use with a variety of trial presentation software solutions. Using a laptop or an iPad, either by themselves or with a projector, you have multiple options available for presenting electronic evidence at a very affordable cost. You can easily make a presentation in a conference room or in a courtroom with a minimum amount of equipment. The option you choose will depend on the level of sophistication you want available while making the presentation. Simple solutions exist for presenting static images with software you probably already have. More elaborate presentation techniques, like live highlighting and annotation of documents, zooming in on a section of a document, or creating call outs from documents, are available with products designed specifically for trial presentation purposes.

Before we turn to specific presentation software options, there is a tool you should be aware of that can be used to create screen captures of any ESI you are able to view on your computer monitor or laptop screen.

Snagit from Techsmith is a tool everyone should have on his or her computer. Consider it to be a Print Screen feature on steroids. It works in both Mac and Windows environments and costs only $49.95 for a single-user license. It lets you copy and convert whatever is on your desktop to a standalone image that can then be used in a variety of ways with multiple trial presentation options. You can copy the full desktop view or use other settings to capture only a selected active window or a designated portion or zone of the document you want to copy. You can create a preview version of the screen capture or copy to a clipboard and then insert what you have copied directly into another document. You can also convert what you have copied directly into a PDF document. You can even capture Web pages, static or scrolling, and convert them to PDF files. There are many more advanced features available to enhance the captures that you make, but the basics alone make Snagit a must-have utility.

The easiest and cheapest presentation option is to use something you undoubtedly already have. Obviously you can launch a document in its native application, but that can be cumbersome if you have ESI in multiple formats. You could use Quick View Plus as a presentation tool; it would enable you to navigate a mixed format collection of ESI. However, it does not have a formal presentation view, and you would be limited to viewing the documents in the built-in viewer. Another easy option is to convert everything to PDF and use Adobe Acrobat to present the documents. You can combine all of your documents into one large PDF file and use the thumbnail pane to navigate between exhibits. You can then go to the full-screen view to view the documents in a more presentation-friendly format. You will have the ability to work with the documents using the built-in annotation tools available in Acrobat.

Another option is to use something you likely already own. Microsoft PowerPoint is typically part of your Office suite and available for your use. PowerPoint can be used to create a slideshow of the materials you want to present. Using Snagit in combination with PowerPoint makes the creation of slideshows a simple process. For maximum effectiveness, a dual monitor set up is recommended, although not required. If you use dual monitors, you can have one monitor devoted to viewing the images you want added to the slideshow and the other monitor running PowerPoint. It is then a simple process to open the documents you are interested in, in whatever review tool you are using, and capture them using Snagit. Use the “Save To Clipboard” option in Snagit, and then open a blank slide in PowerPoint. Click on the slide to give it focus, right click on “Paste,” and then size the image that is dropped onto the slide. That is all it takes to create presentation exhibits from your available ESI. You can then take advantage of all the options PowerPoint offers to annotate, animate, or otherwise enhance the slides.

Although this is a good basic technique, there are some inherent limitations in using PowerPoint. Generally, you must present your materials in a linear fashion, and it is not easy to navigate between disparate slides, unless you use the more advanced PowerPoint technique of creating a master slide with hyperlinked thumbnails of the items you want to display, or unless you use the Presenter View with a computer and a projector so you are using a dual-monitor setup. With the latter option, you can scroll on your desktop to find the slide you want to launch and then launch it from the Presenter screen. Neither option is ideal if you have a large collection of documents, nor can you make live annotations, create cutouts, or zoom while the PowerPoint slides are in presentation mode. If you want more advanced features, then you must look at trial presentation software that is specifically designed to present items in a dynamic fashion.

At the time this book was written, the most popular trial presentation tools for Windows-based computers were TrialDirector 6, Sanction 3, and Visionary 8. TrialDirector 6 will also work well on a Mac in Boot Camp mode. TrialSmart was designed specifically to run on a Mac. With the fast-growing popularity of iPads, new applications are also coming to market. TrialPad, Evidence, and Exhibit A are all presentation programs that run on an iPad. The cost for these programs runs from free to around $800, with the more expensive options offering the most comprehensive set of tools and presentation options.

One of the advantages of using a trial presentation program is that it supports a much larger set of exhibits. You normally have a database structure that you can use to organize your materials. When in presentation mode, you have the option of calling up an exhibit by pre-assigned exhibit number. This offers maximum flexibility in terms of maneuvering through your collection. In addition, you have the option to annotate, zoom, or create document cutouts on the fly. This allows you to make a dynamic presentation, and you can adapt your techniques on an as-needed basis depending on the way the testimony or presentation is going. Finally, several of the programs allow you to build pretreated presentations where you can take specific documents and move from one annotation or highlight to the next, stepping through the document as needed to make your evidentiary point.

Regardless of which presentation method or program you choose, the fact that you are dealing with documents in electronic form from the outset of discovery makes the use of electronic presentation techniques natural at mediation, arbitration, or trial. These tools help you organize your case materials, move quickly between exhibits, and present them with a punch that the use of printed copies of documents lacks.

For more e-discovery tips, pick up a copy of Electronic Discovery for Small Cases: Managing Digital Evidence and ESI, now available from LPM Publishing.

About Lindsay Dawson

Lindsay Dawson (@lawpracticetips) is Marketing Manager for Book Publishing at the ABA Law Practice Management Section. A full list of books published by the ABA Law Practice Management section can be viewed here: http://bit.ly/uHTFmO.

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