Litigation Support

One Tech to Serve Them All?

By Blake Boyd

Fellow Trial Tech Peter Phaneuf posed a great question in the comments of the “In the Courtroom, Silence is Golden“.

What I was referring to is a situation where a tech works for both sides. I believe it is a conflict of interest but I have run into people who do not think it is a problem.

Have you?

Here’s my take on the subject:

I’ve worked for both sides on multiple occasions and oddly enough the majority of the time it’s at the request of my client. Cost is the reason I see it being suggested the most. The question you have to ask yourself is; will I save enough to make it beneficial to my case?

If the case is straight forward (we still work a lot of car wrecks) and there really isn’t much trial strategy involved other than presenting the evidence and facts, I think it can be very useful. Our role in these cases usually involves making clips, and calling up documents. I might create a few opening/closing slides for either side. And that’s about it.

Note that it does benefit both sides, the speed of the trial, and the general organization of the parties. In many matters, if the costs weren’t shared it would not be cost effective to use our services in the trial. It is amazing how quickly a trial speeds up when there is very little fumbling around and looking for misplaced exhibits. I think the jury, judge, and court staff appreciate it as well. Everything just flows smoother.

Now that’s a small minority of the cases that benefit from the use of Trial Technology, and the only situation where I would suggest or support the idea. Where technology really shines is when the case is complex, hard to understand, and involves hundreds of videos and hundreds of thousands of documents. In these situations I think the experience, knowledge and overall qualities of the individual Trial Tech’s come into play.

I have only worked both sides on two “substantial” trials, and from a my point of view it’s a nice situation when it comes to deposition clips, which are much easier to create and playback because there is no overlapping testimony (a problem run into constantly on larger trials. A completely different discussion is that none of the trial presentation software packages except Trialmax, which is proprietary of FTI Consulting, offer an easy way to compare plaintiff and defense clip offerings showing overlapping problems).

Another benefit of is on many occasions I pull a document up for my client and when the opposing attorney wants to cross examine on that document, they find they don’t have it scanned. This doesn’t happen when the Tech is working on both sides. Either it’s loaded or not (and when it’s not we rush to scan it).

Those two “convenience” reasons are the only real reasons why a large trial should share a Tech. Cost should not be one, and these are the reasons I explain to my clients:

You need independence to gain an additional outside view. A competent Trial Tech might have some great suggestions for topics/questions the attorney might have overlooked. When I’m working on both sides, I keep my mouth shut.

Also, the added stress of having giving your trial strategy to someone that is working for the other side makes for some awkward situations. I’ve never run been asked about the trial strategy of my client from opposing counsel, but if you potentially had millions at stake, how would you feel about having open trial strategy communications in front of “some guy” that is about to go meet with your adversary? It just doesn’t work. This single issue is big enough to forget about sharing a trial tech, we’re just too involved in the inner working of the case.

Another problem that is bound to come up is how do you separate the time restraints? You’ve only got one trial tech, how can they make clips during no examination times? What about at night, who gets those few valuable hours of the Tech’s time? The answer can’t be “bring on another tech” as you can then wave your cost savings away.

Does the Tech bill per hour? Some witness’ might only take 30 minutes from start to finish, who pays for the time? What about documents and videos that one side doesn’t care if loaded or not? Does the litigation support company have to incur the cost of extra billing time, it literally would take hours to separate the correct time used?

There are many reasons not to share a Trial Tech these are just some of them. I’ll stress again, it’s not the best idea if the case has any complexity to it at all. The only time that it would be feasible is if the case is small with not many disagreements nor strategy.

Full post as published by The Trial Technologist's View on October 18, 2008 (boomark / email).