According to Alan Blakley, a professor at Thomas M. Cooley School of Law and author of “The Digital Litigation Handbook,” most attorneys don’t have a clue about the volume of digital information that can be retrieved for use in litigation. As far as Blakley is concerned, lawyers who want to pursue business law rather than litigation still need to be able to advise clients about the “stupid” mistakes they can make electronically that can come back to haunt them.
Blakley said many law students, as well as practicing attorneys and judges, don’t understand the value of electronic information, don’t know what electronic information to look for or when to look for it, and don’t realize what it can really bring to a case. What he tries to do in his digital litigation course at Cooley is raise students’ awareness of electronic information in terms advising clients about it and using it in the courtroom. In evidence class and civil procedures class, he tries to raise awareness of what technology is available in the courtroom and how it can be used to enhance a presentation to a jury. Most of the electronic information cases concern trademark, copyright or patent — the kinds of issues that naturally involve a great deal of secrecy, he pointed out.
“If law students who are going out into the workplace for their first job have some facility and comfort level with litigation support software that sorts documents and images for them, and have a comfort level with taking a video deposition as opposed to a written transcript deposition and have a comfort level with trial presentation applications, they’re going to be at a distinct advantage over older attorneys. The older attorney that has the trial experience has certainly got a great asset, but if that’s all he has and the newer attorney has the ability to use the technology, then I think they’re going to be in much better position to even the playing field. I’m not talking about technology just for the sake of using technology; I’m talking about technology when it’s appropriate.”
Blakley recently took some Cooley students to District Court Judge William G. Kelly’s courtroom in Kentwood to see all of the computer technology available to attorneys. Law student Amanda McLittle was impressed.
“To be a good trial attorney, I think it will be essential to use the technology provided,” McLittle said. “I found it amazing how Blakley demonstrated how the technology can help you ‘pull the jury in’ and help them see things for themselves like they were there the day the incident occurred. It really helped to show how you can make litigation go more smoothly now, and how it can help you better communicate with the jury and the parties themselves, whether it is a defendant or a civil case.”
Blakley noted that almost every federal courtroom in the country is equipped with the new overhead projectors and some kind of computer technology that allows a laptop to be hooked up to a projector. With an electronic filing, he said, an attorney can embed a portion of a video deposition into the brief so the judge just has to click on it to see the deposition. Letters of communication, copies of contracts, diagrams, photos and other kinds of documentation can be embedded into an electronic file, as well.
The Federal Rules of Civil Procedure will be amended Dec. 1 this year to include a variety of provisions intended to make electronic discovery more manageable. The Federal Litigation Section of the Federal Bar Association, in conjunction with the Mecklenberg County (N.C.) Bar Association, is producing a video entitled “Electronic Discovery Update: Impact of the 2006 Federal Rules Changes.” Blakley is editing the video, which is expected to be released this fall. The video is based on a hypothetical case involving misappropriation of trade secrets. The hypothetical company is a large company that has in place a “custodial system” that doesn’t allow anything to be saved routinely on the computer. The only things that are saved are documents that employees make a conscious effort to save and categorize. LQX