Demonstratives: Making Effective Graphics for Trial

I frequently use Microsoft PowerPoint to create and display demonstrative graphics used in Opening Statements, Closing Arguments, and with Expert Witnesses. Although professional graphic artists also use tools such as Adobe’s Illustrator and Photoshop, in the hands of an experienced user, PowerPoint can accomplish many of the same tasks, and it is much easier to work with. In addition, it is often used to present demonstratives in the courtroom – regardless of which software was used to design them.

Demonstratives: Making Effective Graphics for Trial

Published by National Institute for Trial Advocacy (NITA), John Cleaves’ recent book offers an in-depth look at various types of demonstrative graphics used in litigation, and how to create them using PowerPoint.

Whether you an attorney interested in handling some of your own graphics work or a paralegal working with trial support and graphics, this book will help you get it done. Even if you already work with PowerPoint on a regular basis, I would highly recommend this book, as there are many valuable “power-user” tips and tricks offered. Plus, John is such a cool guy, and it’s always nice to support one of our own.

In my experience, I have found that a hard-working trial team is a successful trial team, which is noted in the Preface of the book: “…attorneys who are most likely to have a successful outcome …are the ones who have prepared most thoroughly, …and that preparation includes …demonstrative graphics.”

Working with NITA’s fictitious “Homestead Properties, Inc. v. Manhattan Fire & Casualty Co.” case as an example, the first chapter touches upon the basic PowerPoint layout and developing trial themes and case strategy. The remainder of the book addresses many typical litigation graphics examples, and it covers nearly every function available in PowerPoint used to create them.

By design, although the book may be read cover-to-cover like a novel, it can also be easily be used as a reference to accomplish specific tasks when developing your own demonstratives. The table of contents is laid out in great detail, such that if you were interested in how best to add a video to your presentation, jumping to Chapter 7 (Photographs and Video; Working with Video) would be a good place to start. Since the book is available in electronic formats for both iPad and computer viewing, jumping directly to a desired topic is as easy as a click or a tap.

As noted by renowned photographer Ansel Adams, "people believe photographs."

(click or tap image to enlarge)

About the Author: John Cleaves

John Cleaves is the Trial Technology Attorney and the Manager of the Trial Technology Consulting team at Latham & Watkins LLP, a department he founded and built for the firm. Previously, he was a Director of Trial Support for FTI Consulting and the Director of Media Services for LegaLink. He is an attorney licensed by the State Bar of Texas, where he practiced law for a number of years before becoming a trial consultant.

As a trial consultant, John has assisted on trials and arbitrations from as far west as Honolulu and as far east as London, from Seattle to San Diego; Portsmouth, New Hampshire to Fort Lauderdale, Florida, and most everywhere in between. It will come as no surprise that he is a certified Microsoft Office Specialist in PowerPoint®.

Get the book:

Demonstratives: Making Effective Graphics for Trial

$haring Trial Support Costs

Regardless how large your trial may be, saving your client a little money is usually a good thing -- at least when it doesn't come at the cost of compromised quality (or malpractice). Here are a few possible ways to reduce some of your trial costs. 

Joint Trial Exhibits

Many courts appreciate (and some require) parties to agree upon and submit a set of Joint Trial Exhibits. A good place to start would be the deposition exhibits – particularly if they have been sequentially numbered from the outset, rather than starting over with each deponent. Here – let me repeat that: Sequentially number your deposition exhibits. Even if you have a few gaps due to depos being taken simultaneously, it will save a lot of time and trouble later. A good database programmer can work with just about anything you hand them, but dealing with duplicate numbered exhibits, then adding in some with letters just makes it more difficult. I would also recommend always using numbers instead of letters, as it can be difficult in a courtroom to understand whether you’re asking for exhibit “B,” “D,” “P,” or “T.” Unless you’re experienced with using the phonetic alphabet, your court reporter will not be happy.

Printing costs are also shared, and duplications are less likely. Any exhibit stickers may be placed electronically, and then saved/printed with Joint Trial Exhibit Bates numbers, making it an easy task for all to quickly get to the same page.

Stipulation can save a great deal of trial time, since you won’t have to go through the authentication process for every exhibit.

Trial Presentation Equipment

Sharing a projector and screen happens almost always. In fact, I have only seen parties each bring in and use their own separate systems once in my entire trial presentation career of nearly 20 years. That was a “unique” experience, to say the least. Opposing counsel had two projectors, two screens, and two trial techs – one for exhibits, and the other for video. Our side just had me using TrialDirector, which looked and worked out better.

In any event, most courtrooms won’t have the extra space to set up two of everything, so it is a good idea to breach this topic with opposing early on. In fact, our standard trial support estimate includes the following language: “Presentation equipment costs would normally be split between parties. In some cases, other costs and services may be shared between parties.” A complete courtroom setup can run $1000 or more weekly, so cutting this cost in half is a no-brainer. Since I am often asked, I will also mention that a properly installed system will NOT allow opposing counsel or their trial tech to see anything you are doing, unless you are presenting evidence to the jury and/or Court.

Even when you're fortunate enough to land in a "wired" courtroom, there are still some things you may need, and it is always advisable to have your trial tech inspect and test it out before trial. You may need extra cables, a speaker set, monitors or even an ELMO. You will also need to determine if both HDMI and VGA are available, and which will work better with your laptops.

Neutral Exhibit Access

Full-service trial prep and presentation support can run $10,000 or more per week. Although this isn't always necessarily the ideal arrangement, cutting costs by 50% can often be a quick and easy way of getting a client or insurance carrier on board. What it does mean is that someone must be a gatekeeper to all the evidence. Giving the keys to the kingdom to some unscrupulous trial tech working for both sides could be a direct ethical conflict, and might also be considered malpractice.

For this type of arrangement to work properly, only one party (usually the original hiring party) will be able to discuss work-product and privileged information with the trial tech. Opposing counsel will have only neutral access to display a desired exhibit upon verbal request during the trial. In trials where both parties need to prepare exhibits or deposition impeachments in a confidential or privileged manner, two trial techs should be used – one for each party.

Your Trial Presentation Consultant should be able to discuss these options with you, and should also be experienced and willing to assist in brokering a cost-sharing arrangement with your opponent.

Trump Deposition: Synced Version Now Available Online

In an example of what has been the most entertaining election cycle in history, yet another tidbit has been served up for all to enjoy - the deposition video of Donald J. Trump, taken June 6, 2016. Regardless of your political preferences, once I heard this news, I knew I had a little work to do. Here is a link to the CNN article.

On Friday, September 30, 2016, Washington, D.C. Superior Court judge Brian Holeman sided with news organizations, allowing the release of the deposition video from a $10 million lawsuit filed by Trump against chef Geoffrey Zakarian, who had signed a lease to run a restaurant in Trump's hotel in the Old Post Office Pavilion on Pennsylvania Avenue NW, near the White House.

One service we often provide while assisting attorneys with trial presentation is to sync the formatted text file version of the court reporter's transcript to the video file(s) for easy search and accurate playback. In depositions, the typical format is for a Certified Shorthand Reporter to "type" the entire conversation as it happens, while a Legal Videographer records the proceedings on video. This is not your father's VCR deck. Once a deposition video has been synced, all you need to do is go to the desired page and line number, and play from there. You can also create "clips" of desired testimony and save them for playback later. 

So, with the deposition transcript and video now publicly available, we have the tools already in place to sync the two together - resulting in a video which looks the same as if you were watching TV with closed-caption scrolling text.

I will offer a somewhat technical walk-through for those that would like to have an actual working copy of this synced depo which I have compiled from publicly-available files, complete with search and playback, plus the ability to create and save clips.

For those less “tech-inclined,” I will share a way to view it without going through all of the trouble.

First, an easy way to watch the video:

You may play the video here.

You may play the video here. It does not have any news organization branding, unlike some you might find on other YouTube or news outlets. This is just the video file, and does not include the synced transcript.

Now for the tools we actually use in trial presentation. It’s not very difficult, but will require installation of a program called DepoView. To download this free software from inData (makers of TrialDirector), click here. You will find the following note: A fully licensed copy of this incredible software has been reserved for you, free of charge, courtesy of: Litigation-Tech LLC, 888-907-4434, www.litigationtech.com.

You may also use the “Autorun.exe” file found in the files set to begin the install.

Once you’ve installed the software, you’ll just need to download the DepoView file set. You can download the entire set here. 

If you haven’t already installed the software, run the “Autorun.exe” file. Once you’ve completed installation, you can start the DepoView software by double clicking on the “DT061616.dvt” file.

You cannot run this from the web browser – you will need to download all of the files in order to run the software.

Once everything is downloaded and installed, you may search and play the synced video transcript to your heart’s content.

Even if you decide against going through the steps to install and run the software, you can easily see the potential for tools like this in litigation. This is not something futuristic – it is used to some extent in nearly every trial we support. 

The image above shows the view a jury would see in court, without all of the extra options displayed. The closed-caption text may be set to display several ways, or may be turned off if desired. For additional info on this topic, see Using Deposition Video in Trial.

Feel free to follow up with any questions or comments, and let me know if something like this might be of help in your next trial.

About the author: Ted Brooks' noteworthy trial experience includes People v. Robert Blake (with M. Gerald Schwartzbach), Los Angeles Dodgers (McCourt) divorce trial (with David Boies), Western MacArthur v. USF&G ($3 Billion), May-Carmen v. Wal-Mart (Defense Verdict), PG&E v. U.S. (Power Crisis Litigation), and a recent matter involving 5 databases with over 1 million documents. Ted writes the Court Technology and Trial Presentation Blog, and frequently speaks on legal technology topics. Ted operates Litigation-Tech LLC, with offices in Los Angeles and San Francisco.

No Bull

If you happened to catch the premiere episode of "Bull” this past Tuesday night on CBS, you may have an opinion and understanding of modern jury consulting. Then again, you might have a somewhat inaccurate perception of what can actually be accomplished with technology, and how legal professionals interact with one another. As a trial consultant who spends a lot of time in trial, and with a bit of actual high-profile trial experience, including the Robert Blake murder trial, I formed a few of my own opinions after watching the show.

No B.S.

The graphic shown above might offer a foreshadowing, or perhaps even an executive summary of the remainder of this article – or at least my opinion of some parts of the show. If after reading, you (even partially) agree, then I’ve done my job. Coming up with fresh perspectives (just like jurors will) and communicating them is part of what I do. Although I am confident there is some attorney out there with the perfect case for this, I do not plan on ever using it as a demonstrative in court.

Jury Consultant Amy Singer brought the new series to the attention of the legal community by sharing on several LinkedIn groups: CBS Launches New Digital ‘Jury Analytics’ Experience in Anticipation of New Drama Series “BULL”.

Interestingly, Amy has actually worked with and helped develop some of the types of technology portrayed in the show. While you might not actually have a “jury panel” on a dozen large touch-screen monitors, and you might not focus exclusively on just one “controlling” juror to carry the rest to a desired verdict, looking into a potential (or seated) juror’s social media profiles is a very real possibility. It can, and has been done. Singer’s website states, “We were the first to use social media* to provide our clients with feedback of critical testimony and evidence to guide direct and cross examination. Our trained staff, using our patented Wizpor™ system, provides the intel to provide trial strategies that works.” This was in the Casey Anthony trial.

The show is loosely based on the jury consulting career of Phil “Dr. Phil” McGraw, with whom Jury Consultant Tara Trask worked in her early career. She offers her insight and thoughts on the show in a Law.com interview: Is TV’s ‘Bull’ Total Bull? A Trial Consultant Talks Fact v. Fiction. Trask notes the parallels of the real McGraw, as well as her thoughts on some of the shortcomings of the show – including illegal activity, where Bull has a “bugged” watch planted on lead counsel.

Jury Consultants Rich Matthews (Juryology) and Sonia Chopra (Chopra Koonan) have offered up perhaps the most entertaining “review” of the show in their podcast: Stepping in 'Bull' - trial consultants discuss/correct this ridiculous show. It’s only a half-hour, and worth the time to listen. Although they spiced it up with a bit of humor, they share how public perception of the jury trial system could be affected. It’s sort of like the “CSI Effect,” where jurors have come to expect some serious technology used in the courtroom to convict or acquit a defendant. I would expect many potential jurors now to be looking suspiciously at anyone at counsel table – especially if they’re the one not wearing a tie. For those not involved in “the system,” that’s intended as humor – every male trial team member wears a tie to court. At least every one I’ve seen.

I would argue that the show was a bit disappointing, and I was reminded why I don’t watch a lot of TV. Although some of the cool tools are indeed based on actual technology available today, I would say I was shocked at the arrogant manner in which Bull treated his clients. Let’s not forget that the attorney is generally the one who selects and hires jury (and trial presentation) consultants. The party (e.g., defendant or plaintiff) might foot the bill, but how on earth would they ever find such a consultant, were it not for the representing law firm? I (and I sincerely hope nobody else in our professions) would NEVER treat an attorney (client) this way -- at least not unless they were looking for a good excuse to make an immediate career change.

As a reality check, the parts where Bull tells the defendant that their conversation is protected by attorney-client privilege (when counsel is not present) and where counsel are testifying to the jury in trial aren't exactly accurate either. Note: It has been brought to my attention that an attorney was indeed present - I must have been nodding off a bit after my own long day in trial.

In conclusion, I believe that shows such as this can have some benefit, actually challenging trial teams to utilize every technological tool at their disposal. On the other hand, it can raise the bar to an unrealistic level of expectation. If nothing else, like CSI (yes, another CBS show), I suppose it helps legitimize some of the professionals working in the background before and during trial. 

About the author: Ted Brooks' noteworthy trial experience includes People v. Robert Blake (with M. Gerald Schwartzbach), Los Angeles Dodgers (McCourt) divorce trial (with David Boies), Western MacArthur v. USF&G ($3 Billion), May-Carmen v. Wal-Mart (Defense Verdict), PG&E v. U.S. (Power Crisis Litigation), and a recent matter involving 5 databases with over 1 million documents. Ted writes the Court Technology and Trial Presentation Blog, and frequently speaks on legal technology topics. Ted operates Litigation-Tech LLC, with offices in Los Angeles and San Francisco.

Trial Technology in Silicon Valley

In preparing recently for a Silicon Valley trial, I had an opportunity to check out our courtroom. Well, I should say, I made an opportunity, as we typically want to know of any potential “surprises” before they become “emergencies,” and because I was informed that the technology here was new. What I didn’t realize, was that it was brand-spankin’ new, as in had never been used in a trial yet!

It’s a good thing we made time for this visit, since even the court staff was not yet up to speed with everything about the new setup. It’s probably also a good thing that someone like me was involved with the first “user” test, since while I know some very capable attorneys, most are not tech experts. And, we did have some problems.

A few notes on my observations:

First, I will say that this may be the first installation I’ve seen that seemed to get everything right. While part of the solution might just be current availability, all of the monitors were HD wide-screen – not a mixed system like I’ve seen so many times. Everything is set up to run a 16:9 display format, as opposed to 4:3, although you can always “letterbox” a 4:3 display into 16:9, showing a black border on each side. For more info on this, see HDMI v. VGA: Time to Upgrade?

Next, they actually installed enough monitors so everyone can see the evidence! Now this might seem silly, but I have seen many newer courtroom installations with only a couple of 50” displays, expecting that everyone can see it. If it’s in your living room, it might look fine for watching TV. If it’s in a courtroom, and you’re in a jury box sitting 20 or more feet away, it’s a postage stamp. In many “modern” courtrooms, it is still a good idea to bring in a projector and large screen, in order to make sure everyone can see it. In this particular courtroom, monitors were liberally distributed and easily viewed by the jury, judge, witness, counsel, and even the gallery.

The Court Deputy also has the ability to “kill” the signal feeding the jury and gallery, so exhibits may be previewed by a witness prior to being admitted or published to the jury. When we install our own systems in non-wired courtrooms, we generally do this by controlling the projector feed with a kill switch or remote. Now, this is handled by the court staff.

Now if there’s one big potential “gotcha” with all of this new technology, it’s probably the audio. HDMI cables carry an audio signal, whereas VGA requires a separate cable, generally connected to a headphone jack on your laptop. Fortunately, this new courtroom installation offers both. Unfortunately, only the HDMI cable is feeding the audio through the monitors, and the analog cable did not work. The vendor has been notified. It may simply be an issue of switching, but even the court IT person did not know. This alone could have been a disaster for an attorney hooking up via VGA and analog audio. A laptop's speakers aren't quite enough to fill a courtroom -- especially in a jury trial.

My preference for using HDMI video cables in court has always been (and will continue to be) to run your video into the system (HDMI or VGA), but to use a separate audio system for your depo videos. It is much easier to control, and in my opinion, sounds better than listening to several TV sets echoing in a courtroom. The catch here is that you will have to disable the HDMI audio output on your laptop. For more info on that, see: Connected With Court. It would probably be a good idea for new installations to utilize a separate audio system, which would address this issue.

Trial Tech Tips - Electronic Exhibit Stickers

Trial Tech Tips - Electronic Exhibit Stickers

Since most courts prefer to have parties pre-mark their trial exhibits these days, we typically create a PDF set of trial exhibits with electronic stickers on the first page. These can easily be printed or distributed as needed. Handling this task prior to trial can save a great deal of trial time and confusion by avoiding the dreaded, “May we have the next-in-order exhibit number, please?” With this in mind, if you’ve ever personally enjoyed the “opportunity” to manually affix a set of peel-and-stick trial exhibit stickers in a large case, or have noticed how a trial binder gets bent and crooked with most of the stickers stacked up in the bottom-right corner, you will really appreciate this article.  

While there are several ways to apply electronic trial exhibit stickers using graphics programs or apps, we will focus on TrialDirector, which features one of the best and easiest methods available.

General Rules for Exhibit Stickers – Ideally, parties will meet and confer to agree on a pre-determined numerical range for each party. Additionally, it can be even easier if all of the deposition exhibits have been numbered sequentially, in which case you can just keep the same numbering going into trial. Don’t forget that just because it’s in there doesn’t mean you have to use it, or that it is admissible. While you should consider stipulating to as many as possible, others will be worked out during trial. Unlike the days of marking and numbering trial exhibits in the order in which they were identified during trial, there is no real point in trying to make sure that the most important exhibit in your case gets marked as Trial Exhibit 1. It is the degree of emphasis and importance of an exhibit that will make it stand out – not its exhibit number. I've seen entire exhibit sets renumbered at the last minute trying to achieve some sort of magical numerical flow. The cost is usually several extra hours of labor, with little or no benefit.

Customizing Exhibit Stickers – The stickers can and should be customized. Following the standards that have been in place many years with paper stickers, plaintiffs are usually yellow, with defendants taking blue. In the event you will be using a joint set of exhibits, you may want to go with green for that.

TrialDirector includes a set of customizable sticker templates. It's easiest to begin with one that is close to what you want to create. You may or may not want to use all of the fields. I generally use the top for type of exhibit (plaintiffs, defendants, joint, trial), the next for the word “exhibit,” and the bottom with the number, leaving one field blank (Sub Caption), and then adjusting the font size appropriately. Note that you can adjust font style and size, sticker style, color, and text. As noted above, you may want to leave a field blank.

Affixing Exhibit Stickers – As with paper stickers, you'll want to avoid covering anything on the exhibit. Although it is an electronic sticker, you must still manually place each one. While you could run a program to automatically place them, you would have no way to ensure you didn't bury a Bates number, or something else. Once the sticker has been placed, you don't need to save it like a markup, as it is the one markup that is automatically saved. If you need to move it, select the arrow tool, then click on the sticker to activate it, then drag it wherever you want. Note that this action must be saved, however.

Assigning Exhibit Numbers – Plaintiffs will often take the first range (e.g., 1-499), followed by defendants (500-999) unless you're working with a joint set. In any event, make to allow enough room so you don't overlap numbering. Assigning trial exhibit numbers may be done when building the exhibit list, and can also be handled in the database. The Court may instruct you to call the rest “Trial Exhibits” when using a joint set, so as to neutralize any prejudice or confusion resulting from the jury knowing which party brought it in.

Once you've determined which exhibit will be which number, you will need to set up the database. One way to do this is by selecting the exhibit sticker, which will prompt you to assign an exhibit number if one has not already been set. Although this works fine, you might want to make the process a little easier by numbering all of them at once.

Batch-numbering Exhibits – Once you have a plan, you can select all or just a smaller set of exhibits to sequentially add Bates numbers. You can use the Shift-Select or CTRL-select methods, but note that they will be numbered in the order selected. So, if you select one from the bottom and then one from the top, followed by one in the middle, they will be numbered in that order. To get to this point, simply go to “Tools,” then “Batch Field Fill Selected Items,” and then select Trial Exhibit or another field. Add your starting number, and select the Document level. Once you've assigned numbers, selecting the exhibit sticker will automatically populate with that number.

Production of Numbered Exhibits – Now that you have all of your trial exhibits numbered, you'll need to have them printed and share with opposing counsel. The preferred file format is PDF, which makes it easy to print and distribute. Once again, TrialDirector has a nice feature which makes this a simple process. Simply click “Documents,” “Make PDF from Selected Items.” You can adjust the quality, so you might want to try a couple options to see what works for your database. Somewhere around the middle is generally a decent mix between image quality and file size. You can also “burn in” a Bates number, using the “Print with Page Footer” dialog.

If this is all a bit beyond your personal pain threshold, most litigation support and trial presentation vendors handle this type of project on a regular basis. If you’re getting close to trial, it would be a good idea to get your Trial Tech involved in order to make sure it works properly. There aren’t many good excuses when you’re forced to do it over again. Plus, the Trial Tech is the one in the hot-seat during trial. If they’re responsible for putting it all together and it doesn’t work, you’ll know where to look.

Yes you can!

A paintbrush in the hands of an artist can help illustrate a vision, while someone else might just make a gooey mess of paint. The brush is a tool, while the resulting product is a work of the artist. Although some will hate it, and others cannot live without it, legal technology is actually little more than a modern tool, as well.

Anyone practicing law or involved with legal technology in some form for the past few years has seen some changes. Attorneys can now pick a jury, do legal research, and even present evidence in the courtroom with an iPad or laptop. Just a few years ago, when we left the war room for a day in trial, we also left behind all access to the outside world. Now, I panic if I have a momentary loss of email connectivity in the courtroom.

Fortunately, there is no rule that says you have to become an artist or master at everything. As an attorney however, you do have a responsibility to represent your client in the best possible manner, which might mean bringing in that artist when your client is demanding a masterpiece.

Model Rules of Professional Conduct Rule 1.1 suggests potential professional and ethical risks for failure to do so in Comment 8: 

Maintaining Competence

[8]  To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.

This suggests that if you lose your trial using hard copy documents while opposing counsel used trial presentation technology, your client might now have grounds to become the Plaintiff in your own malpractice case. With so much information available on the topic, it would be hard to convince anyone you had a good reason for not using it, unless your client had specifically rejected the proposal.

Now this doesn’t mean that you must personally become the tech guru. Some attorneys have embraced technology and are able to do it all on their own. Others have realized that it would be better for them to focus their energy on the case, and let someone else handle the technology support. Either way, it’s not a good idea to ignore it. 

Litigation-Tech LLC has been named again as one of California's Best Courtroom Presentation Providers in The Recorder's Best Of 2016. If you have some paint, give us a call!

Litigation and Trial Presentation Technology

UCLA Extension is offering a brand-new online course, entitled Litigation and Trial Presentation Technology, which will be taught by Shannon Bales, of Munger, Tolles and Olson. I am always happy to hear of new and interesting opportunities to receive education and training in the technology side of law -- something that's just not that easy to find. Plus, online course access means you don't have to take the 405, the 10, the 110 and/or the 5 to get there (if you've ever commuted in Los Angeles, you know exactly what I mean. If not, you should probably consider yourself lucky).

I had the opportunity to preview the first couple weeks of his course materials, and can say that it does indeed look to be coming together nicely. Bales has been doing litigation support and trial presentation for many years, and has a wealth of experience to draw from. 

As a bonus, for those who are in the L.A. area, Bales is offering a "hands-on" lab session at his office. The advertised course fee is $595, and should be a great investment in your career. You can learn more about Shannon on LinkedIn: https://www.linkedin.com/in/shannonbales

If you happen to be in San Diego, attorney Jeff Bennion offers a similar Trial Presentation course at UCSD as part of the Litigation Technology Management Certificate program. Here's his LinkedIn profile: https://www.linkedin.com/in/jeff-bennion-2883aab

Also of mention, Litigation-Tech has again been named as one of California's Best Courtroom Presentation providers! Thanks to all who voted. There are many excellent Trial Presentation firms out there, so we are truly grateful to be named as one of the best.

eDiscovery Trouble: Blackbird Technologies v. kCura LLC

Case 1:16-cv-00418-UNA   Filed 06/07/16 Blackbird Technologies v. kCura LLC (Pacer Link)

Just in time to be a discussion topic at LegalTech! Most anyone involved in litigation support and technology is familiar with kCura Relativity, including Blackbird Technologies. As I was reviewing recent (filed just yesterday) Patent Complaints this morning, I happened to notice some familiar names, prompting me to look a little deeper. This is breaking news -- not even out in the legal news sites yet. It seems Blackbird has patented some nice ways to perform a concept search, which they allege others have used in violation of their patent. kCura is "a developer and provider of an e-discovery system called “Relativity.”" There is a list of related complaints, including well-known brands such as Advanced Discovery, DiscoverReady, Innovative Discovery, TransPerfect and UnitedLex.

Here are a few highlights from the complaint:

COUNT I – INFRINGEMENT OF U.S. PATENT NO. 7,809,717 

14. Blackbird Technologies reasserts and incorporates herein by reference the allegations of all preceding paragraphs of this Complaint as if fully set forth herein.

15. Defendant is a developer and provider of an e-discovery system called “Relativity.”  The current commercially-available version of Relativity is Version 9.3 (“v9.3”). (Ex. 4 at 2).  According to Defendant, Relativity v9.3 includes various features called “products,” including an “Analytics” product.  (Ex. 5 at 1).  Further according to Defendant, Relativity Analytics includes a “[c]oncept searching” feature.  (Ex. 6 at 2).  

16. Defendant provides users with documentation instructing users on how to use

Relativity.  (See, e.g., https://help.kcura.com/9.3/Content/index.htm).

19. Defendant has directly infringed one or more of the claims of the ‘717 Patent, including at least claims 1, 10, 16, and 25, in this judicial district and/or elsewhere in the United States.  Defendant has directly infringed claims 1 and 10, for example, by using e-discovery systems (e.g., Relativity v9.3 in conjunction with a computer system) to perform a concept search with integrated keyword search.  (Ex. 7). Defendant has directly infringed claims 16 and 25, for example, by making, using, importing, selling and/or offering to sell a computer system, called an “appliance” by Defendant, loaded with e-discovery software (e.g., Relativity v9.3) capable of performing a concept search with integrated keyword search.  (Ex. 7; Ex. 8 at 1). Defendant’s infringing activities violate 35 U.S.C. § 271(a).

25. Blackbird Technologies is informed and believes, and on that basis alleges, that Defendant has gained profits by virtue of its infringement of the ‘717 Patent.

This could get interesting.

Clinton or Trump? Vote for Litigation-Tech!

The Recorder's Best of 2016 voting is now open, which is your opportunity to vote for the best of the best of the firms serving the California legal community. As an award winner for several years, we would greatly appreciate your vote again this year! I would encourage you to vote in every category for which you have an opinion, but if you're in a rush, please at least put a check-mark for Litigation-Tech in #37, Best Courtroom Presentation Provider.

https://www.surveymonkey.com/r/RecorderBEST2015

We also have some updates coming shortly about the latest release of TrialDirector, and the latest in HD video projectors. We'll also share some insight on a current high-profile trial (once we have closed and have a verdict). 

Ted Brooks

Litigation-Tech LLC

Los Angeles, San Francisco

888-907-4434 Toll-free

http://www.litigationtech.com 

2015 Best Courtroom Presentation Providers Award

M. Gerald Schwartzbach - In the House

I know it's short notice, but I wanted to quickly share that Gerry Schwartzbach will be at the Los Angeles Times Book Festival this Sunday, April 10, discussing his new book, "Leaning on the Arc." As you may know, Gerry and I have worked together on many trials, and I consider him one of the best attorneys I have ever worked with - and I've worked with a bunch.

Here is a link to the ABA site announcement 

Meet Author Gerry Schwartzbach at the LA Times Book Festival on Sunday, April 10 at 2 p.m., Ankerwycke Booth #934

Here is a link to the Amazon site (be sure to add your 5-star review once you've read it!)

Leaning on the Arc: A Personal History of Criminal Defense

Gerry has successfully represented many high-profile clients, including Robert Blake, Marshawn Lynch, and Dr. Hootan Roozrokh. I am currently reading the book, and can tell you it is very interesting and entertaining. Plus, you might even find yours truly, mentioned in chapters 9 and 10.

LinkedIn With Donald Trump! (Legal Ethics)

Donald Trump loves me! It is certainly clear that he can spot a winner – a leader in the profession, at the top of their game. I'm sure that describes me, and must be why he has requested to join my massive and influential LinkedIn network (of a moderate, real-world scale, of course).

I feel like I’ve been personally chosen by Mr. Trump as the next big winner of The Apprentice! Fresh off his dominating performance on Super Tuesday, The Donald took a break from his busy schedule to send me this request, which I received on Wednesday, March 2, at 7:27 p.m. PST. It would have been nearly 11:00 p.m. EST, but I’m sure that like me, he often works some long hours.

LinkedIn email from Trump

Although thrilled beyond belief (well, quite a bit beyond, actually), I thought it might be prudent to check Mr. Trump’s credentials before accepting his request. I know he’s a billionaire, real-estate mogul, presidential candidate and all that, but what does he give up on LinkedIn? I mean, it’s obviously his real photo. Or is it?

Authenticating Social Media Profiles

I’m not going to cover every possible way you might check and verify social media profiles, but I will offer a couple quick and easy suggestions, and I will caution against accepting every random request from people you don’t know. Not that LinkedIn networking is a bad thing, and I have generated some business as a result of using it, but hopping blindly down the trail might not be the best option. Ideally, there should be some prior “connection” for this person to have located you. That might be through a friend or business associate, a fellow LinkedIn group member, or it could even be someone simply reaching out as a result of your marketing efforts (read: a good thing). Because of this, you don’t necessarily want to reject anyone you don’t know. They may know you, or could be interested in getting to know more about you.

PROFILE ANALYSIS

Although other social media apps such as Facebook or Twitter are similar in some respects, we’ll focus on LinkedIn here. The first place to look is their profile page. Realize that you may be limited to a “public” or “not connected” view of the page. There is likely more info once you’re in the same network, but this view usually shows the basics – at least enough to get a rough idea of who is contacting you. For this reason, you should make sure to include enough info in your “public” profile that someone can identify you, or can at least learn a little about who you are.

Poor Donald Trump. I saw last night that he only had 25 LinkedIn connections. I know – he’s just very selective. That’s why he asked me. Now this morning, I find that he has already DOUBLED his network, increasing it to 51 members! That is the power I’m talking about.

Unfortunately, one of the newer additions is connected with someone I know (as noted in the third-level connection shown in the top right corner). I hope it’s not an attorney, or someone in the legal profession. We’re supposed to know better, and in fact, may be ethically required to do so.

With his private jet to shuttle him, Trump gets around. In fact, I just noticed that between last night and this morning, he has changed his LinkedIn profile location from Kansas City, Missouri (see email) to Oskaloosa, Kansas. Running a quick search shows it’s only about 50 miles between the two, but it’s a different State! Okay, so a quick review begins to look a little suspicious. It’s not always so obvious though. Sometimes, it may just look odd that a Chinese iron mining executive has sought you out as a potential connection (has actually happened to me). Probably wants you to send him some money via Western Union, too.

IMAGE SEARCH

So let’s take a closer look at the image. Right click and run a search, and see what turns up. In my experience, this will often nail a fraud, as the results may show the actual profile and identity of someone else. Oh, the power of the Google search. Other search engines (e.g., Bing and Yahoo!) have similar capabilities as well.

Using Image Search

In this case, we find that it does indeed appear to be a legitimate photo of Mr. Trump, except that it has been widely used by the media, meaning it is easy to get. In fact, it has been used over 1400 times.

Oh no, information overload!

My point here is that anyone in the legal profession MUST take extra care when dealing with social media. You never know who might be on the other end of the internet, or why they might be attempting to gain additional info on you. Remember: What happens online, stays online.

Let me know if your firm or group is interested in a related CLE presentation. We offer a limited number of CLE presentations at no cost to qualifying groups, generally focused on technology in trial and visual communication.

Email: tbrooks@litigationtech.com

Pro Files: Chere Estrin

Chere Estrin has been promoting informative and educational opportunities for attorneys, paralegals and litigation support staffers for many years. Those who have followed her have witnessed a great deal of effort and success in developing and presenting a wide variety of materials, programs, and certifications. She has a unique talent of engaging many of the top names in our professions to help with all of this. Now, we have a unique opportunity to see what makes her tick: 

Chere Estrin

1.       Where do you currently work, and what is your primary role? I am the President and Co-Founding member of the Organization of Legal Professionals, OLP, (www.theolp.org), a non-profit organization providing online legal technology training and ediscovery certification exams for attorneys, litigation support professionals and paralegals. 

2.       Share a little about your background, education and work experience prior to your current position. What a great experience this career has been! I'm an author of 10 books on legal careers, a former exec in legal staffing for a $5 billion Fortune 2000 corporation; national seminar speaker;  president of a staffing division of a national litigation support company; legal/paralegal supervisor and administrator for two major law firms; CEO of a national legal staffing company I founded and sold to a major corporation; recipient of the Los Angeles Women of Achievement Award; CEO of the Paralegal Knowledge Institute; Co-Founding member of the International Practice Management Association; and have had the honor of being interviewed by the Los Angeles Times; Chicago Trib; ABA Journal; Daily Journal; Newsweek; Above the Law; and other publications. I have a blog as well. I have some free time on Sundays from 3:00 a.m. to 6:00 a.m.

3.       Share a little about what you do when not working. This is a good one. We just moved from a desert area to a more rural area. I'm now learning how to stoke fireplaces, carry a wheel barrel, check the pump for the well, and yep, hide from what I hear may be mice. 

4.       Tell us about one or two significant cases or experiences in your career. An amazing experience was putting together the eDiscovery certification exam with OLP members and Pearson VUE, a division of Pearson Publications, a $7 billion corporation that specializes in education. Twenty-seven team members worked over 18 months to put together this certification exam which uses the science of psychometrics. You have to be an expert in eDiscovery just to sit for the exam.

Another ongoing experience is the incredible training OLP provides from top experts in the field on legal technology. The instructors bring the latest in technology for online courses via live and recorded sessions. We've had the top names in the industry. I am honored by the continuing support we get from litigation support, eDiscovery, trial techs, HR professionals, eDiscovery attorneys, judges, who contribute their time and efforts. Our mission is to provide continuing legal education to as many people as we can at affordable pricing. OLP is managing to do that and our Board of Governors and Advisory Council is extremely supportive. 

5.       Share about one or two disasters during your career, and how you managed to recover. I think the Great Recession hit everyone including myself. Literally, I had to start all over in a late period in my life, along with millions of other baby boomers. I hated to see firms, legal service providers, individuals go under. It was an attribute to the strength of this country's determination along with the wise heads of those in the legal field that we have managed to get back on track.

6.       What is the best piece of advice you could offer to someone considering stepping into your shoes? People approach me with career problems on a regular basis. The most common problems I see, even with those who are successful, are these:

• Your achievements are underplayed.

• Your skills are outdated. You absolutely must have recent CLE whether or not your practice specialty calls for it. Employers will only pay for updated skills. Saying that your employer does not pay for continuing education is not an excuse for not staying updated. Think you can't afford it? Give up your Starbucks. Yes, give up the Starbucks. $5 bucks a day is $25 a week, $100 month, $1200 a year. You can afford to take a few courses. It will lead to greater success in the long run.

• Never give up. Stay positive. And finally,

• Always ride the horse in the direction it is going.

7.       If you had to do it all over, what would you do differently? Who me? No question. I'd be producing shows on Broadway. I thought you knew that.......

8.       Where do you see yourself in 5 or 10 years? I'm always going to have my hand in the legal field. Writing, speaking, teaching. However, I do plan on sailing off to the Greek Isles. Hopefully, they will have their financial situation together by then.

9.       What would you consider the biggest change that has transpired during your career? This is now a visual society. Yes, I can talk about technology, social media at the risk of sounding ho hum. However, do not overlook how visual we have become. Also, do not overlook the massive age discrimination that we are facing. Baby boomers are now the second largest generation group. I give a free webinar on 5 Steps to Beat Age Discrimination. While some would not consider this the biggest change, I want to bring this out in the open. It's inhibiting people. However, you may not even be aware that you are encouraging people around you to think about it. Think visual society. Think about the phrases that you are using. We've changed. You have to stay current. You can no longer be behind, even half a step.

As for pinpointing the biggest change in the entire legal field? Legalzoom. It changed the entire legal field.  

10.   What do you predict for the future for those in your profession? The virtual attorney, legal professional and paralegal is the wave of the future. eLawyering is where we are going. It is a cottage industry now. However, the client has changed the way it does business. You have to get on the band wagon and be prepared. It's not only the future. It's here now.  

Contact Chere Estrin:

Web: www.theolp.org 

Email: chere.estrin@theolp.org

Phone: 541.854.0673