Evidence Outside the Box

A trial is conducted in a box. 

Literally and figuratively. 

The literal box is the windowless room in a government building in which the trial is conducted. 

The figurative box is drawn by the judge, who admonishes jurors that they are only to consider the evidence admitted inside the courtroom and shall not conduct research or consider information beyond the evidence admitted in the trial.

Yeah, right.

Okay, when these rules were framed, to research a party in the case, a juror would need to travel to a good library, search through index cards, talk to a research librarian and wander the shelves to pull information not received in the trial.  read more

ELECTRONICALLY STORED INFORMATION REVISITED

Six years ago, I wrote about how facility with electronic discovery allows small litigation firms to have David v. Goliath results against large firms.  https://www.spillaneplc.com/advances-in-e-discovery-allow-smaller-firms-to-successfully-litigate-cases-once-only-handled-by-their-larger-counterparts/  In 2021, if you or your team have not mastered discovery of electronically stored information (“ESI”), you are not in the game.

Here are some tips for bringing your electronic discovery skills up to date.

  1. Consult with your technologist on production demands.  Parties may specify the way they want ESI produced.  Cal. Civ. Proc. Code § 2031.030(a)(2); FRCP Rule 34(b)(1)(C).  Share your draft production requests with your technologist, or better yet, have a stock paragraph in your form file. 
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DEPOSITIONS REVISITED

Most business cases settle prior to trial.  For this reason, the near exclusive opportunity to examine witnesses occurs during pretrial depositions.  This is a procedure whereby witnesses who may testify at trial can be required beforehand to answer questions under oath.  Previously these were held in a law firm conference room; often now they occur as a videoconference.  No judge or jury is present

I think when a pretrial deposition is the only available opportunity to examine witnesses for most lawyers, the process is overused.  Too many depositions are taken.  Too many questions are asked.  Too many documents introduced.

There are just a few key objectives in pretrial depositions: 1) find out the witnesses’ answers to the toughest questions, where those answers cannot be known in advance; 2) elicit admissions that can be used in a pretrial motion or as a soundbite at trial; and 3) authenticate how the witness communicated, including emails, text, electronic messages, and social media.  read more

BLACK WIDOW ASSAULTS NEW STUDIO VERTICAL INTEGRATION

Scarlett Johansson, who has repeatedly played Marvel’s Avenger character “Black Widow,” has sued Disney for breaching the promise in her contract to play in its new film, entitled “Black Widow,” that Disney would give the film a “wide theatrical release.”  Johansson was promised generous box office bonuses.  Instead, Disney released the film simultaneously in theaters and on its new streaming subscription service, Disney+.

The advent of studio-owned streaming opens a new front in a long history of litigation between talent and studios over how entertainment revenues are shared, particularly where the sharing is impacted by new technology and “vertical integration,” consolidation within major corporations of the means of bringing entertainment to consumers. read more

Zoomigation: Processing Civil Disputes in a Lockdown World

Resolving civil disputes in court used to involve a regular series of trips to tall office buildings and courthouses where we all sat close and breathed on one another to take depositions, mediate disputes, appear at hearings and try cases.  Now that we are kicked out of the buildings, must the dispute resolution process grind to a halt?  No, while the “jury is out” on the the conduct of jury trials, much of what we do other than jury trials can be Zoom-ized. 

Here is my report card on resolving civil disputes from one’s living room: “Zoomigation.”

Mediations: A.  In nearly all civil business disputes parties are ordered to attend mediation, a half-day or day devoted to settlement.  read more