24th Annual Litigation Institute and Retreat

Transcription

1 24th Annual Litigation Institute and Retreat Cosponsored by the Litigation Section Friday, February 24, 2017, 1 p.m. 5:30 p.m. Saturday, February 25, 2017, 8:30 a.m. Noon Oregon: 7.5 General CLE credits Washington: 6 Law and Legal credits, 1 Professional Development credit, and.5 Office Management credit

2 24TH ANNUAL LITIGATION INSTITUTE AND RETREAT SECTION PLANNERS Dennis Rawlinson, Chair, Miller Nash Graham & Dunn LLP, Portland, OR Leslie Johnson, Kent & Johnson LLP, Portland, OR Thomas Johnson, Perkins Coie LLP, Portland, OR Scott Lucas, Johnson Johnson & Schaller PC, Eugene, OR Renée Rothauge, Markowitz Herbold PC, Portland, OR OREGON STATE BAR LITIGATION SECTION EXECUTIVE COMMITTEE Renée E. Rothauge, Chair Scott C. Lucas, Chair-Elect John R. Bachofner, Past Chair Jeanne F. Loftis, Treasurer Kimberly Anne S. Y. Stuart, Secretary Peter L. Barnhisel The Honorable Matthew Donohue Gilion C. Dumas Ben Eder Lindsey H. Hughes Steven T. Lovett The Honorable Josephine H. Mooney Jennifer S. Wagner Kate Anne Wilkinson Xin Xu The materials and forms in this manual are published by the Oregon State Bar exclusively for the use of attorneys. Neither the Oregon State Bar nor the contributors make either express or implied warranties in regard to the use of the materials and/or forms. Each attorney must depend on his or her own knowledge of the law and expertise in the use or modification of these materials. Copyright 2017 OREGON STATE BAR SW Upper Boones Ferry Road P.O. Box Tigard, OR ii

3 TABLE OF CONTENTS Schedule v Faculty vii Apps in 30 Minutes Presentation Slides i Paul Unger, Affinity Consulting Group, Columbus, Ohio 2. Proportionality in Discovery i Moderator: Travis Eiva, Zemper Eiva Law, Eugene, Oregon The Honorable Stacie Beckerman, U.S. District Court for the District of Oregon, Portland, Oregon The Honorable Jolie Russo, U.S. District Court for the District of Oregon, Eugene, Oregon 3A. Juries of Our Peers: Who Are Oregonians and What Ideas Do They Hold About Jury Service? Presentation Slides A i John Horvick, Vice President and Political Director, DHM Research, Portland, Oregon 3B. Jury Pool Presentation Slides B i Thomas Johnson, Divorce Shoppe, Portland, Oregon 3C. Subjects Covered in Voir Dire Presentation Slides C i Kirsten Snowden, Multnomah County District Attorney s Office, Portland, Oregon 4. The Great Dissenter Justice Oliver Wendell Holmes i William Barton, The Barton Law Firm, Newport, Oregon 5. A Picture Is Worth a Thousand Words: PowerPoint Storyboarding i Paul Unger, Affinity Consulting Group, Columbus, Ohio 6. ipad for Litigators i Paul Unger, Affinity Consulting Group, Columbus, Ohio Tom Mighell, Contoural Inc., Dallas, Texas iii

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5 SCHEDULE Friday, February 24, :30 Registration Opens 11:00 Lunch 11:15 Evidentiary Foundation Workshop for ONLD Members Learn how to identify, address, and overcome evidentiary problems with this special workshop before the start of the 2017 Litigation Institute. Two courtroom veterans a trial judge and a trial lawyer will show you how to transform facts into admissible evidence at trial. They will lead a hands-on learning experience that will prepare you to handle your evidence like a pro. The Honorable Janice Wilson, Portland, OR Renée Rothauge, Markowitz Herbold PC, Portland, OR 12:45 Workshop Adjourns 1:00 30 Apps in 30 Minutes Showcasing the best legal technology, practice management, and incredibly useful websites for lawyers, this rapid-fire, entertaining session is full of great ideas that can be immediately incorporated into your practice. Paul Unger, Affinity Consulting Group, Columbus, OH 1:30 Proportionality in Discovery Moderator: Travis Eiva, Zemper Eiva Law, Eugene, OR The Honorable Stacie Beckerman, U.S. District Court for the District of Oregon, Portland, OR The Honorable Jolie Russo, U.S. District Court for the District of Oregon, Eugene, OR 2:30 Break 2:45 Guess Who s Coming to Dinner or Who You Will Find in Today s Jury Box John Horvick, Vice President and Political Director, DHM Research, Portland, OR Kirsten Snowden, Multnomah County District Attorney s Office, Portland, OR Judy Snyder, Law Offices of Judy Snyder, Portland, OR Gordon Welborn, Hart Wagner LLP, Redmond, OR 4:30 The Great Dissenter Justice Oliver Wendell Holmes William Barton, The Barton Law Firm, Newport, OR 5:30 No-Host Reception 6:30 Dinner and Presentation of the 20th Annual Owen M. Panner Professionalism Award to Joe B. Richards, Luvaas Cobb, Eugene, OR v

6 SCHEDULE (Continued) 7:30 Breakfast and Late Registration Saturday, February 25 8:30 A Picture Is Worth a Thousand Words: Making Your Case to the Jury with Legal Technology Are you tired of death by PowerPoint? Learn how PowerPoint and other technology in the courtroom can assist in presenting your case at trial and effectively engage a jury. 10:15 Break Paul Unger, Affinity Consulting Group, Columbus, OH 10:30 ipad for Litigators The ipad has captured at least 80 percent of the legal market, and this session will show how to use an ipad for presenting in the courtroom or mediation, note-taking, legal research, deposition preparation, and case management. See how legal and courtroom-specific apps can keep a litigator paperless from case intake all the way to trial. Paul Unger, Affinity Consulting Group, Columbus, OH Noon Adjourn vi

7 FACULTY William Barton, The Barton Law Firm, Newport. Mr. Barton has practiced law for more than 40 years and continues to try difficult and challenging cases. He has lectured on trial advocacy in 35 states and four countries and has testified as an expert witness in legal malpractice cases. Mr. Barton is the author of Recovering for Psychological Injuries, 3rd Edition (Assn of Trial Lawyers of Amer 2010). He is certified by the Oregon Supreme Court as an Oregon Trial Courts Judge Pro-Tempore. Among other professional activities, Mr. Barton is past president of the American Board of Trial Advocates Oregon Chapter, the Western Trial Lawyers Association, and the Oregon Trial Lawyers Association, and he was an Oregon State Delegate to the American Bar Association. He also is a Fellow of the International Society of Barristers and Litigation Counsel of America. Mr. Barton is the 2015 recipient of the Oregon State Bar Award of Merit and the 2005 recipient of the Oregon Trial Lawyers Association Distinguished Trial Lawyer award. The Honorable Stacie Beckerman, U.S. District Court for the District of Oregon, Portland. Judge Beckerman was appointed a United States Magistrate Judge on January 5, She previously served as an Assistant United States Attorney for the District of Oregon Criminal Division and an adjunct professor at Lewis and Clark Law School. Judge Beckerman is president of the Queen s Bench, a member of the Ninth Circuit Magistrate Judges Executive board, coordinator of the U.S. District Court of Oregon Pro Bono Panel, and a member of the Oregon Women Judges board, the U.S. District Court of Oregon Historical Society board, the Gus J. Solomon Inn of Court, Oregon Women Lawyers, and the Federal Bar Association. She is a former bar member in Oregon, California, Washington, D.C., and Massachusetts. Travis Eiva, Zemper Eiva Law, Eugene. Mr. Eiva s practice focuses on representing people financially or physically harmed by the wrongful conduct of others. He regularly writes Amicus briefing to the Oregon Supreme Court on important issues affecting the rights of Oregon citizens. He is a member of the Oregon Council on Court Procedures and has been involved in legislative work groups in the promulgation of new laws in Oregon. Mr. Eiva writes articles for law periodicals and presents on complex legal issues in personal injury law. John Horvick, Vice President and Political Director, DHM Research, Portland. Mr. Horvick manages complex projects for DHM Research, is an experienced focus group moderator, and serves as the firm s political commentator. His particular areas of interest include electoral politics, health care, education, land-use planning, natural resource use, energy and utilities, transportation, and taxation. He regularly presents on issues of community, policy, and governance to public officials and governing bodies, in front of boards of directors, and as a part of regional and national conferences. Mr. Horvick provides DHM s political commentary, and his insights can often be heard on OPB Radio or read in the Portland Tribune, The Oregonian, Willamette Week, and other regional print media. His commentary has also appeared in national publications. The Honorable Jolie Russo, U.S. District Court for the District of Oregon, Eugene. Judge Russo was appointed a United States Magistrate Judge on February 24, Prior to that, she served as Senior Staff Attorney to the Honorable Chief Judge Ann Aiken. Judge Russo is past president of the Federal Bar Association Oregon Chapter and a member of the U.S. District of Oregon Local Rules Advisory Committee, the Federal Criminal Procedure and Practice Committee, the Bench Bar Innovations (Technology) Statewide Workgroup, the Oregon Women Lawyers board, and the Multnomah Bar Association board and Court Liaison Committee. Judge Russo is also the editor and publisher of the U.S. District of Oregon Newsletter. Judge Russo is a frequent participant in CLE and other educational events, including the Federal Judicial Center Court Web Education Series. Kirsten Snowden, Multnomah County District Attorney s Office, Portland. vii

8 FACULTY (Continued) Judy Snyder, Law Offices of Judy Snyder, Portland. Ms. Snyder represents clients in actions for serious personal injuries, wrongful death, professional negligence, employment, civil rights, and torts. She has also developed a practice representing medical doctors, psychologists, nurses, and other licensed medical professionals who are facing disciplinary proceedings before state licensing boards. She is a Fellow of the American College of Trial Lawyers and a member of the American Board of Trial Advocates Oregon chapter, the American Association for Justice, the National Employment Lawyers Association, the Federal Bar Association, and the Oregon Commission on Judicial Fitness and Disability. Ms. Snyder is the recipient of the 2001 OTLA Distinguished Trial Lawyer Award, the 2001 Owen M. Panner Professionalism Award, and the 2009 Multnomah Bar Association Professionalism Award. Ms. Snyder is frequently requested by the local, state, and federal bar associations and private organizations to present continuing education programs, and she lectures several times a year on various aspects of trial practice and substantive law issues. Paul Unger, Affinity Consulting Group, Columbus, Ohio. Mr. Unger is an attorney and founding principal of Affinity Consulting Group, a nationwide consulting company providing legal technology consulting, continuing legal education, and training. He specializes in document and case management, paperless office strategies, trial presentation and litigation technology, and legal-specific software training and professional development for law firms and legal departments throughout the United States, Canada, and Australia. He is a member of the American Bar Association, Columbus Bar Association, Ohio State Bar Association, Ohio Association for Justice, and Central Ohio Association for Justice. Mr. Unger served as chair of the ABA Legal Technology Resource Center and the 2011 ABA Techshow. He is the author of dozens of legal technology manuals and publications, including Tame the Digital Chaos A Lawyer s Guide to Distraction, Time, Task & Management (2016) and PowerPoint in an Hour for Lawyers (2014). Gordon Welborn, Hart Wagner LLP, Redmond. Mr. Welborn is Hart Wagner LLP s managing partner and focuses his practice on the defense of professional claims. His clients include physicians, hospitals and health systems, lawyers, dentists, real estate professionals, architects and engineers, construction professionals, and property managers. In addition, he has maintained an active practice involving claims of product liability, board of director claims, premises liability claims, automobile and trucking claims, governmental liability claims, trademark and copyright claims, real property disputes, general liability claims, and business litigation. He is a Fellow of the American College of Trial Lawyers and a member of its Nomination Committee, president-elect of the American Board of Trial Advocates, past president of the Oregon Association of Defense Counsel and the J.R. Campbell American Inn of Court, and a member of the Defense Research Institute and the Federation of Defense and Corporate Counsel. He also serves as a risk management speaker for the Oregon Medical Association. Mr. Welborn is admitted to practice in Oregon and Washington. viii

9 Chapter 1 30 Apps in 30 Minutes Presentation Slides Paul Unger Affinity Consulting Group Columbus, Ohio

10 Chapter 1 30 Apps in 30 Minutes Presentation Slides 1 ii

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13 Chapter 1 30 Apps in 30 Minutes Presentation Slides PadTab $10-$20 Use Old ipads at Home!!! LastPass Free - $10 Password Manager FREE All Platforms 1 3

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22 Chapter 1 30 Apps in 30 Minutes Presentation Slides Paragraph Symbol Option + 7 on External Keyboard like the Logitech or Zagg Duet $

23 Chapter 1 30 Apps in 30 Minutes Presentation Slides PaperKarma (FREE) Unsubscribe to Unwanted Mail CarbonFin Outliner $

24 Chapter 1 30 Apps in 30 Minutes Presentation Slides ithoughtshd $4.99 Wolfram Lawyer s Professional Assistant $

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33 Chapter 1 30 Apps in 30 Minutes Presentation Slides ipad Apps, Tips & Tricks in 30 Minutes Thank you! Paul Unger punger@affinityconsulting.com 1 23

34 Chapter 1 30 Apps in 30 Minutes Presentation Slides 1 24

35 Chapter 2 Proportionality in Discovery Moderator: Travis Eiva Zemper Eiva Law Eugene, Oregon The Honorable Stacie Beckerman U.S. District Court for the District of Oregon Portland, Oregon The Honorable Jolie Russo U.S. District Court for the District of Oregon Eugene, Oregon Contents Revised Guidelines & Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality, Judicature, Vol. 100 No. 4, Winter Sample ESI Discovery Order

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37 Chapter 2 Proportionality in Discovery VOLUME 100 NUMBER 4 WINTER 2016 JUDICATURE THE SCHOLARLY JOURNAL FOR JUDGES STEADY AS SHE GOES Duke s Revised Guidelines and Practices chart the course to proportionality Judicature is published four times a year and mails to all Article III judges, federal magistrate judges, and state supreme court justices, as well as lawyers, state court judges, scholars, students, and other subscribers. Judicature aims to create a forum for judges, practitioners, and academics to share ideas, best practices, perspectives, and opinions, and in doing so provide insight into the issues and ideas that are shaping the judiciary and the administration of justice. Please support our efforts by subscribing. Subscription and sponsorship details are available at law.duke.edu/judicature. See more from the Winter 2016 Judicature and subscribe now at law.duke.edu/judicature. REVISED GUIDELINES & PRACTICES For Implementing the 2015 Discovery Amendments to Achieve Proportionality Published by the Duke Law Center for Judicial Studies This article was published by the Duke Law Center for Judicial Studies in Judicature, Vol. 100 No. 4, Winter It is reprinted with permission Judicature at Duke University School of Law. All rights reserved. 2 1

38 Chapter 2 Proportionality in Discovery This article was published by the Duke Law Center for Judicial Studies in Judicature, Vol. 100 No. 4, Winter Reprinted with permission Judicature at Duke University School of Law. All rights reserved. Downloaded from judicialstudies/judicature/judicature guidelines.pdf. 2 2

39 Chapter 2 Proportionality in Discovery JUDICATURE 21 REVISED GUIDELINES & PRACTICES FOR IMPLEMENTING THE 2015 DISCOVERY AMENDMENTS TO ACHIEVE PROPORTIONALITY Center for Judicial Studies Duke Law School October 2016 IN NOVEMBER 2014, the Duke Law Judicial Studies Center held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of guidelines and practices prepared by Judge Lee Rosenthal and Prof. Steven Gensler. The team s work product, the Guidelines and Practices for Implementing the 2015 Discovery Amendments to Achieve Proportionality, was published in 99 Judicature, no. 3, Winter 2015, along with several related articles. Most of the Guidelines and Practices recommendations represented general consensus views, but a handful were not universally endorsed. To address these and future unforeseeable concerns, the Center planned to regularly revise and update the Guidelines and Practices in light of case-law developments and actual practice. The Center s efforts began with an invitation to the ABA Section of Litigation to co-host programs on the discovery amendments in 13 cities, beginning in November 2015, to learn from judges and practitioners how the amendments were operating. The Litigation Section agreed to select, in consultation with the Center, four local judges and four Section-leading practitioners to serve on two panels at each location, moderated by Judge Rosenthal and Prof. Gensler. The programs quickly became known as the discovery proportionality roadshows and expanded to 17 cities. In total, nearly 70 judges and 70 practitioners appeared on panels speaking to more than 2,500 lawyers

40 Chapter 2 Proportionality in Discovery 22 VOL. 100 NO. 4 The roadshows presented an unprecedented opportunity to learn first-hand from the bench and bar how the amendments were working across the country. At the same time, the months of experience with the amendments, and the information and insights gathered from working with and talking to lawyers and judges in 17 cities across the country, have provided a basis for refinements, clarifications, and additions that are helpful, timely, and need not be delayed until a later comprehensive review a few years from now. Much of what was learned is consistent with the recommendations in the original Guidelines and Practices. The changes in the revised Guidelines and Practices that follow account for these experiences and new case law, and refine and update the document. Many of the refinements are to the organization, not the content. Some Guidelines or Practices are moved to better reflect their relationship to the overall proportionality concept and to some of the practices parties and judges are using or considering in implementing the concept. Several changes account for case law. The bulk of the other changes, particularly in the Practices, are examples of discovery techniques recommended by judges and practitioners at the roadshows who use and promote them. The Guidelines and Practices, as revised by the project s reporters, Judge Rosenthal and Prof. Gensler, were circulated to members of the original drafting teams, lawyers, and judges attending the 2014 conference and others, and posted for three weeks on the Center s web site for comment. The reporters revised the draft in light of comments received, and the final version was reviewed by a select Center editorial board consisting of Judge Paul Grimm, Paul Grewal (former magistrate judge and Facebook deputy counsel), and Dena Sharp (Girard & Gibbs). Although the rule amendments have been in place for months, more case law, more experience, and more information are needed before deciding whether to substantially change the Guidelines and Practices to make them more useful. More significant changes will require more time and work to analyze the developing case law and the diverse experiences of lawyers and judges applying the amended rules in a variety of cases. That diversity has been critical to the 2015 rule amendments from the outset. In addition, the Center has commissioned several studies evaluating the amendments over the next three years, which include holding three regional bench-bar conferences beginning in May 2017 in Dallas, surveying major bar organizations and judges, reviewing discovery-cost invoices submitted by outside counsel, and studying cost data from ESI vendors. These studies are in addition to a monthly comprehensive annotation of the Guidelines and Practices with case law posted at law.duke.edu/judicialstudies/ conferences/publications/. All this work will inform future revisions of the Guidelines and Practices, ensuring an up-to-date, useful reference source. 2 4

41 Chapter 2 Proportionality in Discovery JUDICATURE 23 GUIDELINES The Guidelines for applying the 2015 proportionality amendments to the Federal Rules of Civil Procedure discuss what the amendments mean, what they did and did not change, and ways to understand their impact and meaning. The Guidelines add some flesh to the bones of the Rule text and Committee Notes and explore how the proportionality amendments intersect with other Rule provisions. 1 GUIDELINE 1 Rule 26(b)(1) defines the scope of discovery as any nonprivileged matter that is relevant to any party s claim or defense and proportional to the needs of the case. Proposed discovery must be both relevant and proportional to be within the scope that Rule 26(b)(1) permits. Information that is within the scope of discovery is discoverable even if it would not be admissible in evidence. The Rule 26(b)(1) amendments do not alter the parties 2 discovery obligations or create new burdens. COMMENTARY Discovery that seeks relevant and nonprivileged information is within the permitted scope of discovery only if it is proportional to the needs of the case. The 2015 amendments continue to express the long-standing principle that information does not itself have to be admissible in evidence in order to be discoverable. This is because the gathering of that information can itself be very valuable in obtaining admissible evidence. For example, it remains a staple of deposition practice to ask witnesses to testify to what they have heard other persons say, without regard to whether the statements would be inadmissible as hearsay, because the questioner can use that information to identify and examine the person whose alleged statement was repeated. The phrase reasonably calculated to lead to the discovery of admissible evidence is deleted because it was often misapplied, despite earlier revisions to clarify its meaning. Some lawyers and judges misunderstood the phrase to expand the scope of discovery to include irrelevant information if it was reasonably calculated to lead to the discovery of relevant information. That was and is wrong; discovery was and is limited to relevant information, revised in 2015 to add proportionality to what defines the scope of permissible discovery. The new phrasing deletes the reasonably calculated phrase and replaces it with a statement clearly reject- 4 Editor s note: Revisions that add new matter are highlighted throughout. Passages that were moved from one place to another and minor stylistic or wordsmithing edits are not highlighted. All revisions can be viewed in a redlined document available at law.duke.edu/judicialstudies/ conferences. The document does not necessarily reflect the views of Duke Law School or its faculty, or of any other organization. 2 5

42 Chapter 2 Proportionality in Discovery 24 VOL. 100 NO. 4 ing admissibility as a limit on discoverability but just as clearly limiting the scope of discovery to relevant and proportional information. Lawyers and judges must be careful when quoting older cases defining or describing the scope of discovery because some of the passages from those cases may have been construing rule text that has been superseded. For example, the Supreme Court stated in 1978 that the scope of discovery has been construed broadly to encompass any matter that bears on, or that reasonably could lead to other matter that could bear on, any issue that is or may be in the case. Oppenheimer Fund, Inc. v. Sanders, 437 U.S. 340, 351 (1978). At the time of that case, however, the text of Rule 26(b) (1) linked the scope of discovery to the subject matter involved, and the Court specifically stated that it was interpreting that key phrase. Since then, the 2000 amendments altered the scope to permit subject-matter discovery only upon a showing of good cause and the 2015 amendments eliminated subject-matter discovery completely. Oppenheimer was decided before the concept of proportionality was added to Rule 26, first in the 1983 amendments adding limits to permissible discovery and explicitly in the 2015 amendments limiting the scope of permissible discovery to both relevant and proportional information. The statement in Oppenheimer that describes the breadth of the relevance inquiry remains intact. In the discovery context, relevance is construed broadly to encompass any matter that bears on the matter in question. Oppenheimer, 437 U.S. at 351. The difference today is that the relevance inquiry is linked only to claims and defenses not subject matter and is joined by proportionality in defining scope. The rule text no longer specifically states that discovery into the sources of information discovery into the existence, description, or nature of documents, or the identity of witnesses is part of the scope of discovery. The Committee Note explains that the language was deleted solely out of a belief that [d]iscovery of such matters is so deeply entrenched in practice that it is no longer necessary to clutter the long text of Rule 26 with these examples. Information about the existence and location of sources of information is relevant because it bears on the claims and defenses, and is therefore within the scope of discovery so long as it is proportional to the needs of the case. GUIDELINE 2 Rule 26(b)(1) identifies six factors for the parties and the judge to consider in determining whether proposed discovery is proportional to the needs of the case. As discussed further in Guideline 3, the degree to which any factor applies and the way it applies depend on the facts and circumstances of each case. GUIDELINE 2(A) Importance of Issues at Stake This factor focuses on measuring the importance of the issues at stake in the particular case. This factor recognizes that many cases raise issues that are important for reasons beyond any money the parties may stand to gain or lose in a particular case. COMMENTARY An action seeking to enforce constitutional, statutory, or commonlaw rights, including a case filed under a statute using attorney fee-shifting provisions to encourage enforcement, can serve public and private interests that have an importance beyond any damages sought or other monetary amounts the case may involve. GUIDELINE 2(B) Amount in Controversy This factor examines what the parties stand to gain or lose financially in a particular case as part of deciding what discovery burdens and expenses are reasonable for that case. The amount in controversy is usually the amount the plaintiff claims or could claim in good faith. COMMENTARY If a specific amount in controversy is alleged in the pleadings and challenged, or no specific amount is alleged and the pleading is limited to asserting that the amount exceeds the jurisdictional minimum, the issue is how much the plaintiff could recover based on the claims asserted and allegations made. When an injunction or declaratory judgment is sought, the amount in controversy includes the pecuniary value of that relief. The amount in controversy calculation can change as the case progresses, the claims and defenses evolve, and the parties and judge learn more about the damages or the value of the equitable relief. GUIDELINE 2(C) Relative Access to Information This factor addresses the extent to which each party has access to relevant information in the case. The issues to be examined include the extent to which a party needs formal discovery because relevant information is not otherwise available to that party. 2 6

43 Chapter 2 Proportionality in Discovery JUDICATURE 25 COMMENTARY In a case involving information asymmetry or inequality, in which one party has or controls significantly more of the relevant information than other parties, the parties with less information or access to it depend on discovery to obtain relevant information. Parties who have more information or who control the access to it are often asked to produce significantly more information than they seek or are able to obtain from a party with less. The fact that a party has little discoverable information to provide others does not create a cap on the amount of discovery it can obtain. A party s ability to take discovery is not limited by the amount of relevant information it possesses or controls, by the amount of information other parties seek from it, or by the amount of information it must provide in return. Discovery costs and burdens may be heavier for the party that has or can easily get the bulk of the essential proof in a case. When a case involves information asymmetry or inequality, proportionality requires permitting all parties access to necessary information, but without the unfairness that can result if the asymmetries are leveraged by any party for tactical advantage. Unfairness can occur when a party with significantly less information imposes unreasonable demands on the party who has voluminous information. Unfairness can also occur when a party with significantly more information takes unreasonably restrictive or dilatory positions in response to the other party s requests. The basic point is what resources a party reasonably has available for discovery, when it is needed. Evaluating the resources a party can reasonably be expected to expend on discovery may require considering that party s competing demands for those resources. GUIDELINE 2(E) Importance of Discovery This factor examines the importance of the discovery to resolving the issues in the case. COMMENTARY One aspect of this factor is to identify what issues or topics are the subject of the proposed discovery and how important those issues and topics are to resolving the overall case. Discovery relating to a central issue is more important than discovery relating to a peripheral issue. Another aspect is the role of the proposed discovery in resolving the issue to which the discovery is directed. Discovery that is essential to resolving that issue is more important than discovery that is cumulative or only tangentially related to that issue. Understanding the importance of proposed discovery may involve assessing what the requesting party is realistically able to predict about what added information the proposed discovery will yield and how beneficial it will be. GUIDELINE 2(D) Parties Resources This factor examines what resources are available to the parties for gathering, reviewing, and producing information and for requesting, receiving, and reviewing information in discovery. Resources means more than a party s financial resources. It includes the technological, administrative, and human resources needed to perform the discovery tasks. COMMENTARY In general, more can be expected of parties with greater resources and less of parties with scant resources, but the impact of the parties reasonably available resources on the extent or timing of discovery must be specifically determined for each case. As with all of the factors, this factor is only one consideration. Even if one party has significantly greater resources, this factor does not require that party to provide all or most of the discovery proposed simply because the party is able to do so. Nor does this factor mean that parties with limited resources can refuse to provide relevant information simply because doing so would be difficult for financial or other reasons. A party s ability to take discovery is not limited by the resources it has available to provide discovery in return. GUIDELINE 2(F) Whether the Burden or Expense Outweighs Its Likely Benefit This factor identifies and weighs the burden or expense of the discovery in relation to its likely benefit. There is no fixed burden-to-benefit ratio that defines what is or is not proportional. COMMENTARY The importance of discovery factor discussed in Guideline 2(E) addresses the likely benefits of proposed discovery based on its importance to resolving issues and the importance of those issues to resolving the case. In general, proposed discovery that is likely to return important information on issues that must be resolved will justify expending more resources than proposed discovery seeking information that is unlikely to exist, that may be hard to find or retrieve, or that is on issues that may be of secondary importance to the case, that may be deferred until other threshold or more significant issues are resolved, or that may not need to be resolved at all. If the information sought is important to resolving an issue, discovery to obtain that information can be expected to yield a greater benefit and justifies a heavier burden, especially if the issue is important to resolving the case or materially advances resolution. If the information sought is of marginal or speculative usefulness in resolving the issue, the burden is harder to justify, 4 2 7

44 Chapter 2 Proportionality in Discovery 26 VOL. 100 NO. 4 especially if the issue is not central to resolving the case or is unlikely to materially advance case resolution. This factor focuses on the benefits of the information to be obtained and the burdens or expenses of obtaining that information. It is to be considered along with the other factors, which separately address and take into account the importance of the issues at stake and any resulting benefit to society associated with litigation of those issues. Guideline 6 separately addresses which party bears the burden of providing specific information about the burdens, expense, or benefits of proposed discovery when proportionality disputes arise. Rule 26(b)(2)(B) addresses a specific type of burden argument that discovery should not proceed with respect to a particular source of electronically stored information because accessing information from that source is unduly burdensome or costly. Examples might include information stored using outdated or legacy technology or information stored for disaster recovery rather than archival purposes that would not be searchable or even usable without significant effort. Rule 26(b)(2)(B) has specific provisions for discovery from such sources. Those provisions do not apply to discovery from accessible sources, even if that discovery imposes significant burden or cost. GUIDELINE 3 Applying the six proportionality factors depends on the informed judgment of the parties and the judge analyzing the facts and circumstances of each case. The weight or importance of any factor varies depending on the facts and circumstances of each case. COMMENTARY The significance of any factor depends on the case. The parties and the judge must consider each factor to determine the degree to which and the way the factor applies in that case. The factors that apply and their weight or importance can vary at different times in the same case, changing as the case proceeds. No proportionality factor has a prescribed or preset weight or significance. No one factor is intrinsically more important or entitled to greater weight than any other. The order in which the proportionality factors appear in Rule 26(b)(1) does not signify preset importance or weight in a particular case. The 2015 amendments reordered some of the factors to defeat any argument that the amount in controversy was the most important factor because it was listed first. GUIDELINE 4 The 2015 rule amendments do not require a party seeking discovery to show in advance that the proposed discovery is proportional. COMMENTARY The 2015 amendments do not alter the parties existing discovery obligations. The obligations unchanged by the amendments include obligations under: Rule 26(g), requiring parties to consider discovery burdens and benefits before requesting discovery or responding or objecting to discovery requests and to certify that their discovery requests, responses, and objections meet the rule requirements; Rule 34, requiring parties to conduct a reasonable inquiry in responding to a discovery request; and Rule 26(c), Rule 26(f), Rule 26(g), and Rule 37(a), among others, requiring parties to communicate with each other about discovery planning, issues, and disputes. The need for communication is particularly acute when questions concerning burden and benefit arise because one side often has information that the other side may not know or appreciate. The 2015 amendments do not require the requesting party to make an advance showing of proportionality. Unless specific questions about proportionality are raised by a party or the judge, there is no need for the requesting party to make a showing of or about proportionality. The amendments do not authorize a party to object to discovery solely on the ground that the requesting party has not made an advance showing of proportionality. As discussed in Guideline 5, the amendments do not authorize boilerplate, generalized objections to discovery on the ground that it is not proportional. The amendments do not alter the existing principles or framework for determining which party must bear the costs of responding to discovery requests. 2 8

45 Chapter 2 Proportionality in Discovery JUDICATURE 27 GUIDELINE 5 The 2015 rule amendments do not authorize boilerplate, blanket, or conclusory objections or refusals to provide discovery on the ground that it is not proportional. COMMENTARY The addition of proportionality to the Rule 26(b)(1) definition of the scope of discovery does not authorize a party to assert boilerplate, blanket, or conclusory objections to discovery or refusals to provide discovery. To the contrary, Rule 34 is amended to require parties to state with specificity the grounds for objections or for refusals to produce documents or electronically stored information. Boilerplate objections or refusals to respond to discovery requests risk violating Rule 26(g). Objections that state with specificity why the proposed discovery is not proportional to the needs of the case are permissible. GUIDELINE 6 When proportionality disputes arise, the party in the best position to provide information about the burdens, expense, or benefits of the proposed discovery ordinarily will bear the responsibility for doing so. Which party that is depends on the circumstances. In general, the party from whom proposed discovery is sought ordinarily is in a better position to specify and support the burdens and expense of responding, while the party seeking proposed discovery ordinarily is in a better position to specify the likely benefits by explaining why it is seeking and needs the discovery. COMMENTARY If a party objects that it would take too many hours, consume unreasonable amounts of other resources, or impose other burdens to respond to the proposed discovery, the party should specify what it is about the search, retrieval, review, or production process that requires the work or time or that imposes other burdens. If a party objects to the expense of responding to proposed discovery, the party should be prepared to support the objection with an informed estimate of what the expenses would be and how they were determined, specifying what it is about the source, search, retrieval, review, or production process that requires the expenses estimated. If a party requests discovery and it is objected to as overly burdensome or expensive, the requesting party should be prepared to specify why it requested the information and why it expects the proposed discovery to yield that information. Assessing whether the requesting party has adequately specified the likely benefits of the proposed discovery may involve assessing the information the requesting party already has, whether through its own knowledge, through publicly available sources, or through discovery already taken. A party with inferior access to discoverable information relevant to the claims or defenses may also have inferior access to the information needed to evaluate the benefit, cost, and burden of the discovery sought. Assessing the benefits of proposed discovery may also involve assessing how well the requesting party is able to predict what added information the proposed discovery will yield and how beneficial it will be. Party cooperation is particularly important in understanding the burdens or benefits of proposed discovery and in resolving disputes. The parties should be prepared to discuss with the judge whether and how they communicated with each other about those burdens or benefits. The parties should also be prepared to suggest ways to modify the requests or the responses, when appropriate, to reduce the burdens and expense or to increase the likelihood that the proposed discovery will be beneficial to the case. GUIDELINE 7 If a party asserts that proposed discovery is not proportional because it will impose an undue burden, and the opposing party responds that the proposed discovery will provide important benefits, the judge should assess the competing claims under an objective reasonableness standard. COMMENTARY In deciding whether a discovery request is proportional to the needs of the case, only reasonable (or the reasonable parts of) expenses or burdens should be considered. Changes in technology can affect the context for applying the objective reasonableness standard. It is appropriate to consider claims of undue burden or expense in light of the benefits and costs of the technology that is reasonably available to the parties. It is generally not appropriate for the judge to order a party to purchase or use a specific technology, or use a specific method, to respond to or to conduct discovery. In assessing discovery expenses and burdens and the time needed for discovery, however, it may be appropriate for the judge to consider whether a party has been unreasonable in choosing the technology or method it is using. 2 9

46 Chapter 2 Proportionality in Discovery 28 VOL. 100 NO. 4 PRACTICES The following practices suggest useful ways to achieve proportional discovery in specific cases. There is no one-size-fits-all approach. While practices that would advance proportional discovery in one case might hinder it in others, the suggestions may be helpful in many cases and worth considering in most. The suggestions are framed in terms of parties as well as judges case-management practices and are intended to provide help in carrying out the shared responsibility for discovery proportional to the needs of the case. PRACTICE 1 The parties should engage in early, ongoing, and meaningful discovery planning. The parties should begin to work internally and with opposing parties on relevance and proportionality in discovery requests and responses from the outset, which can be well before a case is filed or served and before the Rule 26(f) meet-and-confer, the Rule 26(f) report, and the Rule 16 conference with the judge. The judge should make it clear from the outset that the parties are expected to plan for and work toward proportional discovery. COMMENTARY The parties and judge share responsibility for ensuring that discovery is proportional to the needs of the case. The parties are usually in the best position to know which subjects and sources will most clearly and easily yield the most promising discovery benefits. In many cases, the parties use their knowledge of the case to set discovery plans that achieve proportionality. When that does not occur, or when discovery disputes nonetheless arise, judges play a critical role by taking appropriate steps to ensure that discovery is proportional to the needs of the case. Parties and judges have a variety of practices to work toward proportionality. They include: (1) practices for the parties to identify and work together beginning early in the case to create and implement a discovery and case-management order that works toward proportional discovery; (2) orders that judges issue early in the case communicating the judge s expectations about how the parties will conduct discovery; (3) ways for parties to identify discovery disputes promptly, attempt to resolve them, and if unsuccessful to bring them to the judge for timely, efficient, and fair resolution; (4) orders that judges issue early in the case setting procedures for the parties to promptly bring discovery disputes and related matters that they cannot resolve to the judge; (5) procedures for the parties to engage the judge promptly and efficiently when discovery and related pretrial disputes make it necessary; and (6) orders that judges issue communicating the willingness to be available when necessary. The practices that follow provide examples of specific approaches that judges and parties across the country have used to work toward proportionality in discovery, including timely and efficiently resolving discovery disputes. 2 10

47 Chapter 2 Proportionality in Discovery JUDICATURE 29 While the judge has the ultimate responsibility for determining the boundaries of proportional discovery, the process of achieving proportional discovery is most effective and efficient, and the likelihood of achieving it is greatest, when the parties and the judge work together. PRACTICE 2 As soon as possible and both before and in the Rule 26(f) meet-and-confer, the parties should talk in person or at least by telephone to discuss what the case is about and what information will be needed and to plan for proportional discovery. The parties discussions should result in a proposed discovery/case-management plan with enough detail and specificity to demonstrate to the judge that the parties are working toward proportional discovery. The judge should consider issuing an order early in the case that clearly communicates what the judge expects the parties to discuss, to address in their Rule 26(f) report, and to be prepared to discuss at a Rule 16 conference with the judge. COMMENTARY Early discussions between the parties, in person or by telephone, provide the best opportunity to meaningfully discuss what the discovery will be, where it should begin, and how it might relate to the overall case plan. or written exchanges alone are much less effective at facilitating detailed discovery planning or establishing a framework for identifying and resolving discovery and other pretrial disputes. The parties discussions, including in the Rule 26(f) meetand-confer, and report should cover more than dates for pleading amendments, expert designations, discovery deadlines, motions, and trial, and should go beyond the Rule 26(f) required topics of preservation, protection against privilege waiver, and form of production. The discussions should result in a proposed discovery/ case management plan detailed and specific enough to demonstrate to the judge that the parties are working toward proportional discovery. The judge should make clear by order or other manner the judge chooses that the parties are expected to have a meaningful discussion and exchange of information during the Rule 26(f) meetand-confer and what the parties are expected to cover. The judge should also make clear that the Rule 26(f) report will be reviewed and addressed at the Rule 16 conference. Judges following this practice often issue a form order that is routinely sent shortly after the case is filed, along with the order sent to set the dates to file the Rule 26(f) report or to hold the Rule 16 conference. In a case in which the judge has a basis to expect that discovery will be voluminous or complex, or in which there is likely to be significant disagreement about discovery, the judge might consider scheduling a conference call with the parties before they hold their Rule 26(f) meet-and-confer and draft their joint discovery/case-management plan. Some districts address these practices in local guidelines or rules. PRACTICE 3 On the judge s own initiative or on the parties request, the judge should consider holding live Rule 16(b) case-management and other conferences, in person if practical or by a conference call, videoconference, or other means of having a real-time conversation if distance or other obstacles make in-person attendance too costly or difficult. COMMENTARY A live interactive conference, in person if possible or if not by telephone, videoconference, or other means for having a realtime, interactive conversation, even among multiple parties, provides the judge and the parties the best opportunity to meaningfully discuss what the discovery will be, where it should focus and why, and how the planned discovery relates to the overall case plan. The parties and the judge should take advantage of technology to facilitate live interactive case-management and other conferences and hearings when in-person attendance is impractical. A live interactive conference allows the judge to ask follow-up questions and probe the responses to obtain better information about the benefits and burdens likely to result from the proposed subjects and sources of discovery. A live interactive conference also provides the judge an opportunity to explore related matters, such as whether an expected summary judgment motion might influence the timing, sequence, or scope of planned discovery. A live interactive case-management conference allows the judge to identify early the relatively few cases that require more extensive case management. The conference provides the court the most effective way to monitor all cases with little judge or law clerk time required to determine whether the parties are planning proportional discovery, and to limit more extensive case management to the cases that need it. In some cases, more than one live case-management conference might be appropriate. In a case in which discovery is likely to be voluminous or complex, or in which there is likely to be significant disagreement about discovery, the judge and parties should consider whether to schedule periodic live conferences or hearings, which can be canceled if not needed. In cases involving complex or extensive electronic discovery, the parties and judge might consider whether to have IT person

48 Chapter 2 Proportionality in Discovery 30 VOL. 100 NO. 4 nel, records management personnel, or electronic discovery consultants attend the case-management conference. Some districts address these practices in local guidelines or rules. PRACTICE 4 The judge should ensure that the parties have considered what facts can be stipulated to or are undisputed and can be removed from discovery. COMMENTARY Discovery about matters that are not in dispute and to which the parties can stipulate is often inherently disproportionate because it yields no benefit. The judge should ensure through an order, in a Rule 16 conference, or in another manner that the parties are not conducting discovery into matters subject to stipulation. The judge should also work with the parties to identify matters that are not in dispute and need not be the subject of discovery, even if no formal stipulation issues. PRACTICE 5 In many cases, the parties will start discovery by seeking information relevant to the most important issues in a case, available from the most easily accessible sources. In a case in which the parties have not done so, or in which discovery is likely to be voluminous or complex, or in which there is likely to be significant disagreement about relevance or proportionality, the parties and the judge should consider and discuss starting discovery with the subjects and sources that are most clearly proportional to the needs of the case. The parties and the judge can use the results of that discovery to guide decisions about further discovery. COMMENTARY The information available at the start of the case is often enough to allow the parties to discuss with clients and each other the subjects and sources of information that are highly relevant to important issues in the case and can be obtained without undue burden or expense. Discovery into those subjects and from those sources is usually proportional to the needs of the case because it is likely to yield valuable information with relatively less cost and effort. In many cases, the parties begin discovery on these subjects and sources without judicial involvement and without explicitly labeling it as proportional or focused. The process is simply the familiar one of making smart choices about the most productive steps to get the information the parties need most and first. If the parties have not thought through discovery, or the discovery is likely to be voluminous or complex, or there is likely to be significant disagreement about relevance or proportionality, the judge should encourage the parties to consider starting discovery with the information central to the most important subjects, available from the most easily accessible sources of that information. The parties and the judge can use this information to guide decisions about further discovery. For example, the parties can use the information to decide whether to make additional discovery requests or how to frame them. The judge can use the information to help understand and resolve proportionality or other questions that may arise during further discovery. This approach does not foreclose additional discovery or predetermine that it will be required. The objective of this approach is to identify good places for discovery to begin, deferring until later more difficult questions about where discovery should end. If more discovery is sought, no heightened showing is required. The parties and the judge will have more information to assess proportionality, but the factors and their application do not change simply because some discovery has occurred. In some cases, the parties may want to start discovery by obtaining enough information to decide whether to file a dispositive motion, to try the case, or to work toward prompt settlement. It may make sense for the parties and the judge to start discovery by seeking information directed to a particular issue, claim, or defense. For example, a case may raise threshold questions such as jurisdiction, venue, or limitations that are best decided early because the answers impact whether and what further discovery is needed. In some cases, this may be clear after initial disclosures are exchanged. In other cases, the parties may want to start by seeking information bearing on damages to make decisions about settlement value or how aggressively to pursue claims or defenses. In still other cases, discovery of information about a causation issue may be decisive. In some cases, it may be necessary for the parties to exchange more information to identify where to start discovery. In other cases, with relatively few disputed issues and limited discoverable information available from relatively few sources, setting discovery priorities may not be necessary or useful at all. A judge who holds a live Rule 16 conference can address with the parties the potential benefits of starting with focused or targeted discovery and his or her expectations about how the parties will conduct it. The judge can address concerns that one or more parties will misunderstand the process or engage in inappropriate tactics. The judge might consider discussing with the parties what objections typically would or would not be appropriate. If the parties have reached agreement on starting discovery to get the most important information from the most accessible sources, there should be few occasions for objections on relevance or proportionality grounds. Judges should consider using other tools designed to facilitate and accelerate the exchange of information on issues central to the case. For example, judges should consider using the Initial 2 12

49 Chapter 2 Proportionality in Discovery JUDICATURE 31 Discovery Protocols for Employment Cases Alleging Adverse Action in cases where they apply. Developed jointly by experienced plaintiff and defense attorneys, these protocols are pattern discovery requests that identify documents and information that are presumptively not objectionable and that must be produced at the start of the lawsuit. The self-described purpose of these protocols is to encourage parties and their counsel to exchange the most relevant information and documents early in the case, to assist in framing the issues to be resolved and to plan for more efficient and targeted discovery. The protocols are another way to work toward proportional discovery and have been used effectively in courts around the country. It is expected that work will be undertaken to develop similar subject-specific discovery protocols for other practice areas. after the early discovery is complete. The point is not to impose rigid bifurcated or staged discovery, but to work toward and implement a case-specific plan that is tailored to the needs of the case and flexible enough to evolve with the case. If discovery starts with particular subjects or sources, the parties and the judge should consider whether this may require some individuals to be deposed more than once, or require the responding party to search a source more than once. The parties and the judge should address and consider ways to avoid repeat work, including by allowing the witness to be deposed on all matters in the case or by allowing a broad search from that source. If the parties reach agreement on starting discovery with particular subjects or sources, a party stipulation or a court order might also specify ways to streamline that discovery, including arranging for the informal exchange of information. PRACTICE 6 In a case in which discovery will start with particular subjects or sources of information, the judge should consider including guidance in the Rule 16(b) casemanagement order. COMMENTARY While starting discovery by seeking less information than the maximum conceivably allowed can advance the goal of proportionality, it can also cause concern to some litigants. Some may worry that it will be used as a tool to restrict discovery, fearing that they will be required to make a special case for proportionality before any additional discovery will be allowed. Others may worry that it will be used as a tool to protract discovery if additional rounds of discovery are viewed to be allowed as a given regardless of how robust the initial efforts were or what information they yielded. Still others may worry that expressing an interest in starting with less-than-maximum discovery will be mischaracterized or misunderstood as a desire for a rigidly phased or staged discovery process. Absent any guidance from the judge, these and other concerns may lead parties to forego or resist setting priorities for discovery even when it would make sense to do so. The judge should consider taking steps to avoid misunderstanding and provide clarity. The judge might consider including a statement in the Rule 16(b) case-management order acknowledging that the parties are starting with discovery into certain issues or from certain sources and will use the results to guide decisions about further discovery. The order can convey the judge s willingness to consider additional discovery and to be available when the parties disagree over whether that is proportional to the needs of the case. The parties might consider asking the judge to divide the discovery period, using an interim deadline for completing early discovery and a later deadline for completing further discovery that is warranted. The parties might also consider asking the judge to schedule a discovery status conference or ask for a report PRACTICE 7 If there are discovery disputes the parties cannot resolve, the parties should promptly bring them to the judge. The judge should make it clear from the outset that he or she will be available to promptly address the disputes. COMMENTARY Procedures for the parties to promptly engage the judge in resolving discovery disputes that the parties are unable to resolve on their own are important to avoiding the costs and delays that frustrate efficient and cost-effective case management and defeat proportionality. Prompt resolution of discovery disputes prevents them from growing in intensity and complexity and allows discovery, motions, and pretrial preparations to continue rather than entirely stop while the dispute is pending. The judge should consider including in an order issued early in the case a procedure that makes clear the judge s availability to work with the parties in timely resolving discovery disputes. Some districts address these practices in local guidelines or rules. PRACTICE 8 On the judge s own initiative or on the parties request, the judge should consider requiring the parties to request an in-person or telephone conference with the court after conferring with opposing parties and before filing a motion seeking to compel or to protect against discovery. Some judges require the parties to request a conference on the basis of limited motions or short briefs. These and similar practices avoid the often unnecessary costs and delays of fully briefed discovery motions

50 Chapter 2 Proportionality in Discovery 32 VOL. 100 NO. 4 COMMENTARY A live pre-motion or limited-motion conference between the parties and the court is often an effective way to promptly, efficiently, and fairly resolve a discovery dispute at considerably less judge- and law-clerk time than reading fully briefed motions, responses, and replies with attachments and issuing a written opinion. The parties and the judge save time, work, and resources. The live pre-motion or limited-motion conference can often be held shortly after the parties inform the judge s case manager or judicial assistant that a discovery dispute has arisen. The conference lets the parties tell the judge what the party seeking the discovery needs and what the party resisting the discovery is able to produce without undue burden, cost, or expense. The live, interactive conference exchange allows the parties and the judge to productively focus on practical solutions to practical problems rather than on disagreements over jurisprudence. The conference exchange often resolves the discovery dispute, either by leading to an agreed resolution or by providing the judge with the information needed to rule fairly and accurately. Discovery can continue, allowing the case to stay on track instead of stopping while the judge reads extensive motions and briefs and writes a written opinion. The parties are saved the cost and delay of filing full motions and briefs, and the judge and her clerks are saved the work and time needed to read those motions and briefs and issue a written opinion. If the pre-motion or limited-motion conference indicates that some briefing or additional information on specific issues would be helpful, the judge can focus further work on the specific issues that require it. The judge might consider requiring the party requesting a pre-motion or limited-motion conference on a discovery dispute to send a short communication often limited to two pages describing (not arguing) the issues that need to be addressed and allowing a similarly limited response. The judge might consider the best way to memorialize the results of the conference. Approaches can vary. Some judges have a court reporter present for the conference and hold it in the courtroom. Others hold the conference in chambers, sometimes with a court reporter and other times with a law clerk taking notes for a brief minute entry in the court s docket sheet. Other judges may ask one of the parties to draft and circulate a proposed order. Some cases may be better served by the courtroom formality and others by the more relaxed exchange in chambers. The judge can include a pre-motion or limited-motion conference requirement and procedure in the case-management order issued under Rule 16(b). The procedure can include provisions for using telephone or video conferences if one or more of the parties cannot attend in person. Some districts address these practices in local guidelines or rules. PRACTICE 9 When proposed discovery would not or might not be proportional if allowed in its entirety, the judge should consider whether it would be appropriate to grant the request in part and defer deciding the remaining issues. COMMENTARY Allowing proposed discovery in part can further an iterative process. The discovery allowed may be all that is needed, or it may clarify what further discovery is appropriate. Deferring a decision on whether to allow the rest of the proposed discovery gives the judge and parties more information to decide whether all or part of it is proportional. Sampling can be used to determine whether the likely benefits of the proposed discovery, or the burdens and costs of producing it, warrant granting all or part of the remaining request at a later time. If a modified request would be proportional, the judge ordinarily should permit the proportional part of the discovery. However, the judge is under no obligation to do so and may rule on the discovery request as made. PRACTICE 10 The parties and judge should consider other discovery rules and tools that may be helpful in achieving fair, efficient, and cost-effective discovery. In particular, the parties should consider delivering discovery requests before their Rule 26(f) meet-and-confer. COMMENTARY Other discovery rule changes and tools, not part of the proportionality amendments, should be considered as part of the judge s and parties overall plan for fair, workable, efficient, and cost-effective discovery and case resolution. Rule 26(d) is amended to allow a requesting party to deliver document requests to another party before the Rule 26(f) conference. The requests are not considered served until the meeting, and the 30-day period to respond does not start until that date. The early opportunity to review the proposed requests allows the responding party to investigate and identify areas of concern or dispute. The parties can discuss and try to resolve those areas at the Rule 26(f) conference on an informed basis. If disputes remain, the parties should use the Rule 26(f) report and the Rule 16(b) conference to bring them to the court for early resolution. As an alternative to the formal mechanism that now exists under Rule 34, some lawyers may prefer to share draft, unsigned document requests, interrogatories, and requests for admission. Both the formal and informal practices prompt an informed, early conversation about the parties respective discovery needs and abilities. Rule 26(c) makes explicit judges authority to shift some or all of the reasonable costs of discovery on a good cause showing if a party from whom discovery is sought moves for a protective order. A judge may, as an alternative to denying all of the requested 2 14

51 Chapter 2 Proportionality in Discovery JUDICATURE 33 discovery, order that some or all of the discovery may proceed on the condition that the requesting party bear some or all of the reasonable costs to respond. The longstanding presumption in federal-court discovery practice is that the responding party bears the costs of complying with discovery requests. That presumption continues to apply. The 2015 amendments to Rule 26(c) make that authority explicit but do not change the good cause requirement or the circumstances that can support finding good cause. Rule 37(e) is amended to clarify when and how a judge may respond to a party s inability to produce electronically stored information because it was lost and the party failed to take reasonable steps to preserve it. It provides a nationally uniform standard for when a judge may impose an adverse inference instruction or other serious sanctions. It responds to the concern that some persons and entities were over-preserving out of fear their actions would later be judged under the most demanding circuit standards. Working toward proportionality in preservation is an important part of achieving proportionality in discovery overall. Other rule amendments emphasize the need for careful attention to preservation issues. Rule 26(f) has been amended to add preservation of electronically stored information to the list of issues to be addressed in the parties discovery plan. Rule 16(b) is amended to add preservation of electronically stored in formation to the list of issues the case-management order may address. Rule 16(b) and Rule 26(f) have been amended to encourage the use of orders under Rule 502(d) of the Federal Rules of Evidence providing that producing information in the litigation does not waive attorney-client privilege or work-product protection, either in that litigation or in subsequent litigation. Nonwaiver orders under Federal Rule of Evidence 502(d) can promote proportionality by reducing the time, expense, and burden of privilege review and waiver disputes. Questions impacting and approaches to discovery are usually best explored in a live conference between the judge and the parties, preferably before formal discovery-related motions (such as under Rule 26(c) or Rule 37(a)) and accompanying briefs are filed. A live Rule 16 or pre-motion conference enables the judge and the parties to examine how the various discovery tools can best be used to create and implement an effective discovery and casemanagement plan. PRACTICE 11 The parties must frame discovery requests and responses after considering the burdens and benefits. Rule 34 emphasizes this obligation by prohibiting general, boilerplate objections to production requests and requiring the responses to state objections with specificity, to state whether documents are being withheld on the basis of objections, and to state when discovery will be completed. When necessary, the parties should ask the judge to enforce these discovery obligations, and judges should make themselves available to do so promptly and efficiently. COMMENTARY A judge s prompt enforcement of the Rule 34 prohibition on conclusory and boilerplate objections, including to a lack of proportionality, can be a critical part of managing and achieving discovery that is both proportional and fair. Enforcing requirements for specific and clear objections can be as important to proportionality as limiting discovery requests to enforce the Rule 26(b)(1) definition of scope. Similarly, enforcing the requirements to state when documents will be produced and whether documents are being withheld on the basis of objections can help ensure proportionality by avoiding uncertainties that often led to more objections and disputes. The Rule 34 requirements are consistent with the Rule 26(g) requirements to consider discovery burdens and benefits before requesting or objecting to discovery and to certify that the requests, responses, and objections meet the rule requirements. The parties should identify ways to engage the judge when necessary to efficiently enforce the Rule 34 requirements for responding to production requests. PRACTICE 12 The parties and the judge should consider using technology to help achieve proportional discovery. COMMENTARY Technology can help proportionality by decreasing the burden or expense, or by increasing the likely benefit, of the proposed discovery. When the discovery involves voluminous amounts of electronically stored information, the parties and judge should consider using technologies designed to categorize or prioritize documents for human review. Because technology evolves quickly, the parties and the judge should not limit themselves in advance to any particular technology or approach to using it. Instead, the parties and the judge should consider what specific technology and approach works best for the particular case and discovery. 1 The Guidelines and Practices are, of course, not part of the rules and have no binding effect. They are a resource for judges, lawyers, and litigants who must understand the amendments and their impact to use and comply with the rules governing discovery. 2 The Guidelines and Practices use the word parties to cover lawyers and represented litigants, although many of the practices apply usefully to cases involving unrepresented litigants as well. 2 15

52 Chapter 2 Proportionality in Discovery 2 16

53 Chapter 2 Proportionality in Discovery Header: Case 6:14-cv JR Document 140 Filed 05/10/16 IN THE UNITED STATES DISTRICT COURT FOR THE DISTRICT Of OREGON DYNAMIC MEASUREMENT GROUP, INC., an Oregon corporation, Plaintiff, vs. UNIVERSITY OF OREGON, a special governmental body as defined by ORS (1)(i), et al., Defendants. Case No. 6:14-cv JR ORDER RUSSO, Magistrate Judge: I. General Principles 1. This Order supplements all other discovery rules and 2 17

54 Chapter 2 Proportionality in Discovery orders. It streamlines Electronically Stored Information ( ESI ) production to promote a just, speedy, and inexpensive determination of this action, as required by Fed. R. Civ. P The parties continue to have a duty to produce known documents responsive to discovery requests (including both hard and electronic documents) regardless of whether they are identified in the ESI searches described below. Further, in addition to conducting ESI searches through the use of search terms, the parties shall conduct targeted searches for responsive documents by contacting the likely custodians and working with them to make reasonable good faith inquiries to determine the likely location of responsive documents, such as identified hard copy or electronic folders, including folders. All such responsible documents shall be produced without delay even though an ESI search may be ongoing. 3. An attorney s zealous representation of a client is not compromised by conducting discovery in a cooperative manner. The failure of counsel or the parties to litigation to cooperate in facilitating and reasonably limiting discovery requests and responses raises litigation costs and contributes to the risk of sanctions. 4. The proportionality standard set forth in fed. R. Civ. P. 26(b)(2)(C) must be applied in each case when formulating a discovery plan. To further the application of the 2 18

55 Chapter 2 Proportionality in Discovery proportionality standard in discovery, requests for production of ESI and related responses should be reasonably targeted, clear, and as specific as possible. 5. Costs will be shifted for disproportionate ESI production requests pursuant to Fed. R. Civ. P. 26. Likewise, a party s nonresponsive or dilatory discovery tactics will be cost-shifting considerations. A party s meaningful compliance with this Order and efforts to promote efficiency and reduce costs will be considered in cost-shifting determinations. II. ESI Disclosures Within 30 days after entry of this Order, or at a later time if agreed to by the parties, each producing party shall disclose: 1. Custodians. The ten custodians most likely to have discoverable ESI in their possession, custody or control. The custodians shall be identified by name, title, connection to the instant litigation, and the type of information under his/her control. The parties may jointly agree to modify this limit without leave of Court. The Court shall consider contested requests for up to five additional custodians per producing party, upon showing a distinct need based on the size, complexity, and issues of this specific case. Should a party serve production requests for additional custodians beyond the limits agreed to by the parties or granted by the Court pursuant to this paragraph, the requesting party shall bear all reasonable 2 19

56 Chapter 2 Proportionality in Discovery costs caused by such additional discovery. 2. Non-custodial Data Sources. A list of non-custodial data sources (e.g., shared drives, servers, etc.), if any, likely to contain discoverable ESI. 3. Third-Party Data Sources. A list of third-party sources, if any, likely to contain discoverable ESI (e.g., third-party and/or mobile device provider, cloud storage, etc.) and, for each such source, the extent to which a litigant is (or is not) able to preserve information stored in the third-party data source. 4. Inaccessible Data. A list of data sources, if any, likely to contain discoverable ESI (by type, date, custodian, electronic system or other criteria sufficient to specifically identify the data source) that a party asserts is not reasonably accessible under Fed. R. Civ. P. 26(b)(2)(C)(i)or that has not been preserved. In each such instance, the party shall detail why the data sources are not reasonably accessible or have not been preserved and the unsuccessful efforts that have been undertaken to attempt to access or otherwise obtain the data. III. Preservation of ESI The parties have a common law obligation to take reasonable and proportional steps to preserve discoverable information in the party s possession, custody or control. With respect to preservation of ESI, the parties shall proceed as follows: 2 20

57 Chapter 2 Proportionality in Discovery 1. Absent a showing of good cause by the requesting party, the parties shall not be required to modify the procedures used by them in the ordinary course of business to back-up and archive data; provided, however, that the parties shall preserve all discoverable ESI in their possession, custody or control. 2. All parties shall supplement their disclosures in accordance with Rule 26(e) with discoverable ESI responsive to a particular discovery request or mandatory disclosure where that data is created after a disclosure or response is made (unless excluded below). 3. Absent a showing of good cause by the requesting party, the following categories of ESI need not be preserved: a. Deleted, slack, fragmented, or other data only accessible by forensics. b. Random access memory (RAM), temporary files, or other ephemeral data that are difficult to preserve without disabling the operating system. c. On-line access data such as temporary internet files, history, cache, cookies, and the like. d. Data in metadata fields that are frequently updated automatically, such as last-opened dates. e. Back-up data that are substantially duplicative of data that are more accessible elsewhere. f. Server, system or network logs. 2 21

58 Chapter 2 Proportionality in Discovery g. Data remaining from systems no longer in use that is unintelligible on the systems in use. h. Electronic data (e.g., , calendars, contact data, and notes) sent to or from mobile devices (e.g., iphone, ipad, Android, and Blackberry devices), provided that a copy of all such electronic data is routinely saved elsewhere (such as on a server, laptop, desktop computer, or cloud storage). IV. Privilege 1. With respect to privileged or work-product information generated after the filing of the complaint, parties are not required to include any such information in privilege logs. 2. Activities undertaken in compliance with the duty to preserve information are protected from disclosure and discovery under Fed. R. Civ. P. 26(b)(3)(A) and (B). 3. Information produced in discovery that is protected as privileged or work product shall be immediately returned to the producing party, and its production shall not constitute a waiver of such protection, if: (i) such information appears on its face to have been inadvertently produced ; or (ii) the producing party provides notice within 15 days of discovery by the producing party of the inadvertent production. V. ESI Discovery Procedures 1. On-site inspection of electronic media. Such an inspection shall not be permitted absent a demonstration by the 2 22

59 Chapter 2 Proportionality in Discovery requesting party of specific need and good cause or by agreement of the parties. 2. Search methodology. The parties shall timely reach agreement on appropriate custodians, data sources and search terms, or an appropriate computer- or technology-aided methodology. In this regard the following provisions shall apply: a. Search terms shall take into consideration the documents already produced in the first round of discovery, and the parties shall endeavor to avoid search terms that are unnecessary in light of the documents already produced in the first round of production. The parties shall continue to cooperate in revising the appropriateness of the search terms or computer- or technology-aided methodology. b. The search terms shall be narrowly tailored to particular issues. Indiscriminate terms, such as the producing company s name or its product name, are inappropriate unless combined with narrowing search criteria that sufficiently reduce the risk of overproduction. A conjunctive combination of multiple words or phrases (e.g., computer and system ) narrows the search and shall count as a single search term. A disjunctive combination of multiple words or phrases (e.g., computer or system ) broadens the search and thus each word or phrase shall count as a separate search term unless they are variants of the same word. Use of narrowing search criteria (e.g., and, but 2 23

60 Chapter 2 Proportionality in Discovery not, w/x ) is encouraged to limit the production and shall be considered when determining whether to shift costs for disproportionate discovery. Absent a showing of good cause, each search term or query returning more than 250 megabytes of data are presumed to be overbroad, excluding Microsoft PowerPoint files, image and audio files, and similarly large file types. c. The parties shall provide no more than 20 search terms or Boolean searches per custodian or specific ESI location. The parties may jointly agree to modify this limit without leave of Court. d. A producing party shall disclose what search terms, if any, were used to locate ESI likely to contain discoverable information. If search terms were not used, the producing party shall disclose the search methodology used to locate ESI likely to contain discoverable information. e. If search terms or queries are used to locate ESI likely to contain discoverable information, a requesting party is entitled to no more than five additional terms or queries per custodian to be used in connection with further electronic searches absent a showing of good cause or agreement of the parties. The parties shall confer in good faith on the five additional terms or queries per custodian. Focused terms and queries, rather than overbroad ones (e.g., product and company names), should be employed. 2 24

61 Chapter 2 Proportionality in Discovery f. The producing party shall search both non-custodial data sources and ESI maintained by the custodians identified above. In the absence of agreement on appropriate search terms, or an appropriate computeror technology-aided methodology, the following procedure shall apply: A. The producing party shall disclose the 20 search terms or queries per custodian or ESI location, if any, and methodology that it proposes to use to locate ESI likely to contain discoverable information. B. The parties shall meet and confer to attempt to reach an agreement on the producing party s search terms and/or other methodology. C. If the parties are unable to agree on search terms or methodologies, the dispute will be settled by the court without further argument, or the dispute will be assigned to a Special Master, at the parties expense, for final resolution. 3. Format. Each document image file shall be named with a unique Bates Number. ESI shall be produced in reasonably useable form, including specifically an ability to search the content of the documents produced. ESI shall be converted to TIFF images and produced, together with request metadata, in the form provided. Spreadsheets (e.g., Excel documents) shall be produced in native file format. Electronically stored information in other 2 25

62 Chapter 2 Proportionality in Discovery formats shall be identified prior to production to permit the parties to confer over production format. ESI shall be converted to TIFF images. Images shall be single page TIFFs and placed in an Images Folder (TIFF specifications: 300 DPI, CCITT Group 4 Fax encoding, no gray scale and JPGs for color images). Documents originating in electronic form shall include extracted text in a Text Folder. Natively produced spreadsheets shall be in a folder name Native and each spreadsheet shall be re-named to include a Bates Number and Confidentiality Designation if applicable. For all documents produced natively within the production TIFFs, provide a slip sheet to take the native s place in the production. If a document is more than one page, the unitization of the document and any attachments and/or affixed notes shall be maintained as they existed in the original document. 4. De-duplication. The parties will de-duplicate their ESI production across custodial and non-custodial data sources. 5. Metadata fields. The following metadata fields, to the extent they exist, will be produced in.dat text files accompanying document production: TIFF identifying fields; document type and format; custodian and duplicate custodians; author; from; to, cc and bcc; title/subject; file name; file size; original file path; date, time and time zone created, sent, modified and received; number of attachments; file extension; and 2 26

63 Chapter 2 Proportionality in Discovery hash value. Plaintiff s and defendants Motions for Order (respectively, docs. 112 and 116) are granted in part and denied in part as reflected in this Order. IT IS SO ORDERED. Dated this 10th day of May /s/ Jolie A. Russo United States Magistrate Judge 2 27

64 Chapter 2 Proportionality in Discovery 2 28

65 Chapter 3A Juries of Our Peers: Who Are Oregonians and What Ideas Do They Hold About Jury Service? Presentation Slides John Horvick Vice President and Political Director DHM Research Portland, Oregon

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67 Chapter 3A Juries of Our Peers Presentation Slides Juries of our Peers Who are Oregonians and What Ideas Do They Hold About Jury Service? Oregon State Bar Litigation Institute & Retreat February 24, 2017 Independent Non-Partisan Four decades of public opinion research in Oregon and the Pacific Northwest DHM Research Oregon State Bar February A 1

68 Chapter 3A Juries of Our Peers Presentation Slides Oregon s Changing Racial Demographics Estimate Actual 26% 12% Hispanic Non- Hispanic DHM Research Oregon State Bar February A 2

69 Chapter 3A Juries of Our Peers Presentation Slides Estimate Actual Other Two or more Native African- American 60% Asian White 85% DHM Research Oregon State Bar February 2017 Oregon s Racial Profile (2015) 77% 72% 62% 33% 12% 4% 10% 8% 6% 2% 3% 4% 1% 1% 2% 1% 1% 2% Oregon Portland Malheur White Hispanic Asian African-American Native Two or more DHM Research Oregon State Bar February A 3

70 Chapter 3A Juries of Our Peers Presentation Slides White Population: Oregon and Portland 97% 91% 93% 91% 85% 83% 84% 76% Oregon Portland 79% 77% 72% 72% DHM Research Oregon State Bar February 2017 White Population: Portland Residents by Age 97% 89% 94% 92% 89% Residents over 64 85% 82% 78% 75% 66% Residents under 18 57% 57% DHM Research Oregon State Bar February A 4

71 Chapter 3A Juries of Our Peers Presentation Slides Proportion Students of Color in Metro Area School Districts Portland Public Schools 44% Beaverton 49% Hillsboro 52% David Douglas 59% DHM Research Oregon State Bar February 2017 Median Age by Race in Oregon All Oregonians 39 White 43 Asian Native African American 31 Hispanic 25 Two or more 22 DHM Research Oregon State Bar February A 5

72 Chapter 3A Juries of Our Peers Presentation Slides Counties with Largest Hispanic Population Counties with Largest Hispanic Population Percentages 89,846 85,202 81,907 Morrow 34% Malhuer 33% 31,871 Hood River 31% Umatilla 25% Washington Multnomah Marion Clackamas DHM Research Oregon State Bar February 2017 Income, Wealth & Education 3A 6

73 Chapter 3A Juries of Our Peers Presentation Slides Median Household Income by Race in Oregon (2015) All Oregonians $54,000 Asian $72,000 White Two or more Hispanic Native African-American $56,000 $49,000 $44,000 $34,000 $32,000 DHM Research Oregon State Bar February 2017 Median Household Wealth: United States (2014) All Americans $81,000 White $142,000 Hispanic $14,000 African-American $11,000 DHM Research Oregon State Bar February A 7

74 Chapter 3A Juries of Our Peers Presentation Slides Educational Attainment (ages 18+) Less than high school 11% High school/ged 23% 2-year degree/some college 36% 4-year degree 19% Graduate degree 11% DHM Research Oregon State Bar February 2017 Jury Service: Attitudes & Roles 3A 8

75 Chapter 3A Juries of Our Peers Presentation Slides Confidence in the Legal System Very/Somewhat confident Not too/not at all confident Don t know Juries 21% 55% 18% 6% 0% Local police department 30% 49% 12% 8% County judges in your community 16% 58% 13% 6% 6% Your county sheriff 28% 44% 17% 7% DAs in your community 15% 53% 17% 10% Oregon Supreme Court 19% 48% 23% 5% 5% Defense attorneys 8% 57% 22% 6% 7% Federal Bureau of Investigation (FBI) 14% 46% 22% 15% United States Supreme Court 15% 42% 30% 13% DHM Research Oregon State Bar February 2017 Beliefs about the Jury System Do you think the American jury system is working? In civil disputes In criminal cases 58% 61% Yes 16% No 25% Don t know 22% 17% DHM Research Oregon State Bar February A 9

76 Chapter 3A Juries of Our Peers Presentation Slides Responsibility of Jury Members always follow the letter of the law, even when they believe that it will result in an unjust outcome. 45% 49% achieve the most just outcome, even if it means not following the letter of the law. DHM Research Oregon State Bar February 2017 Responsibility of Jury Members It is the responsibility of jury members to Always follow the letter of the law 47% 48% 50% 52% 46% 52% 47% 48% 44% 43% 48% 46% 46% Achieve the most just outcome 52% 44% 46% 44% 45% 44% 49% 43% 50% 50% 45% 52% 44% DHM Research Oregon State Bar February A 10

77 Chapter 3A Juries of Our Peers Presentation Slides Jury Service: Confidence, Evidence & Bias Self-Confidence in Jury Service Do you believe that you are qualified to service on a jury for Yes No Don t know Drug dealing DUI or DUII Murder Personal injury 91% 90% 88% 86% 9% Tax fraud 66% 20% 14% Insider trading 65% 22% 13% Complex business disputes 57% 29% 14% DHM Research Oregon State Bar February A 11

78 Chapter 3A Juries of Our Peers Presentation Slides Reliability of Evidence Very/Somewhat reliable Not too/not at all reliable DNA Dental records Fingerprints 78% 67% 58% 30% 38% 21% Videos 35% 60% Breathalyzers 34% 58% 6% Expert opinions 9% 71% 18% Field sobriety tests 10% 59% 25% Handwriting analysis 6% 54% 30% 6% Eyewitness accounts 46% 41% 9% DHM Research Oregon State Bar February 2017 Biased Against / Sympathetic Towards Bias against and sympathy towards defendants Small business owner Young African American man Hispanic person with limited English Police officer Politically active liberal Politically active conservative Previously convicted of a felony Attorney representing large corporations Strong bias against (1) Strong sympathy toward (6) DHM Research Oregon State Bar February A 12

79 Chapter 3A Juries of Our Peers Presentation Slides Biased Against / Sympathetic Towards Small business owner Young African-American man Hispanic person Police officer Politically active liberal Politically active conservative Convicted felon Corporate attorney DHM Research Oregon State Bar February 2017 Race as Consideration Jury Selection Should a person s race be considered when selecting jury members? Democrats 26% Don't know 13% Yes 17% Republicans Independents 11% 6% HS or less 9% No 70% Some college College grad 14% 30% DHM Research Oregon State Bar February A 13

80 Chapter 3A Juries of Our Peers Presentation Slides Jury Service: Personal Experience Experience with Jury Service Have you served on a jury? White 48% Non-white 17% Yes 43% % 13% % 65% DHM Research Oregon State Bar February A 14

81 Chapter 3A Juries of Our Peers Presentation Slides Jury Service: Self-Evaluation How well did you understand The facts and evidence during trial? The law or laws discussed during trial? Very well 84% Very well 74% Somewhat well Not well (1%) 15% Somewhat well Not well (1%) 25% DHM Research Oregon State Bar February 2017 Satisfaction with Jury Experience How satisfied were you with the experience? Did it make you feel more or less confident in the American legal system? 6% Very More: 85% Not too/ not at all 36% 57% Somewhat 55% Somewhat Much 30% Less: 15% 13% DHM Research Oregon State Bar February A 15

82 Chapter 3A Juries of Our Peers Presentation Slides Q&A John Horvick (503) DHM Research Oregon State Bar February A 16

83 Chapter 3A Juries of Our Peers Presentation Slides 3A 17

84 Chapter 3A Juries of Our Peers Presentation Slides 3A 18

85 Chapter 3B Jury Pool Presentation Slides Thomas Johnson Divorce Shoppe Portland, Oregon

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87 Chapter 3B Jury Pool Presentation Slides OSB Litigation Section Guess Who s Coming to Dinner or Who You Will Find in Today s Jury Box Litigation Institute & Retreat February 24, 2017 Tom Johnson Perkins Coie LLP JURY POOL JUROR 1 Teri Cromwell Age: 36 - White / F - Single - College - Web Designer JUROR 2 Joe Swanson Age: 67 - White / M - Married, 42 yrs - High School - Retired (former truck driver) JUROR 3 Sheila Perez Age: 24 - Hispanic / F - Single - Grad Student (public planning) - Part time job (bookstore) JUROR 4 Vivian Morgan Age: 59 - White / F - Married, 25 yrs - College - Teacher (public school) JUROR 5 George Johnson Age: 48 - African American / M - Married, 20 yrs - College - Small business owner (shoe store) JUROR 6 Carter Layzey Age: 29 - White / M - Single, - Graduate Degree - Unemployed software engineer JUROR 7 Dorothy Jamison Age: 42 - African American / F - Married, 5 yrs - College - School Administrator JUROR 8 Jake Smart Age: 35 - Single - White / M - PhD Philosophy - Self-Help Public Speaker JUROR 9 Jenny Highline Age: 32 - White/ F - Single - Associate Degree - Small business owner (nail salon) JUROR 10 Delores Flumpkin Age: 63 - White / F - Married,40 yrs - H.S. - Homemaker JUROR 11 Sara Flowerpower Age: 20 - White / F - Single - College Student JUROR 12 Brian Mulroney Age: 70 - White / M - Married, 47 yrs. - College - Retired, former restaurant owner 2 Perkins Coie LLP PerkinsCoie.com 3B 1

88 Chapter 3B Jury Pool Presentation Slides 3B 2

89 Chapter 3C Subjects Covered in Voir Dire Presentation Slides Kirsten Snowden Multnomah County District Attorney s Office Portland, Oregon

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91 Chapter 3C Subjects Covered in Voir Dire Presentation Slides Guess Who s Coming to Dinner or Who You Will Find in Today s Jury Box February 24, 2017 Kirsten M. Snowden Chief Deputy District Attorney Multnomah County District Attorney s Office 1021 SW 4 th Avenue, Room 804, Portland, Oregon desk main fax 3C 1

92 Chapter 3C Subjects Covered in Voir Dire Presentation Slides Subjects covered in voir dire What is the difference between circumstantial and direct evidence? What is the difference between an inference and speculation? What does beyond a reasonable doubt mean? Can jurors follow the judge s instructions? Can jurors apply the facts to the elements of the crime? 3C 2

93 Chapter 3C Subjects Covered in Voir Dire Presentation Slides 3C 3

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95 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes William Barton The Barton Law Firm Newport, Oregon Contents Excerpts from My Civil War Letters and Diary Entries Dissent in U.S. v. Schwimmer Correspondence with Mrs. Rozika Schwimmer My Thoughts on Religion Supreme Court Justice Oliver Wendell Homes, Jr Introduction The Practice of Law Contributions to American Social Thought Holmes Primary Judicial Contributions as a Supreme Court Justice Holmes Organic Contributions to American Jurisprudential Philosophy Criticisms Personal Bibliography

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97 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Excerpts from My Civil War Letters and Diary Entries I enlisted with the Massachusetts Twentieth (aka, the Harvard Regiment) on behalf of the North on April 25, 1861 for a three year term that ended July 17 of I was wounded three times; two wounds were life threatening. I was shot at Ball s Bluff on October 21, Then, on September 17, 1862, I was shot in the neck and left for dead at Antietam, the bloodiest day in American military history. I was wounded the third time on May 2 nd, 1863 at the second battle of Fredericksburg, where shrapnel from an artillery air burst lodged in my heel. I missed the first battle of Fredericksburg. I had a serious case of dysentery. Without antibiotics, dysentery was a lethal threat. Left untreated, it would cause the bowels to run with blood, mucus and half-digested food, leading to dehydration, starvation, and death. During the Civil War it killed 60,000 soldiers. I kept my mustache for the rest of my life and Chief Justice White, who fought for the South, would place a flower on my seat at the Supreme Court on October 21 st and May 2nd. Only four units from the North suffered more casualties during the Civil War then the Massachusetts Twentieth. The Regiment began the war in 1861 with 787 men and 39 officers. Thirteen months later it had 200 men and eight officers. On April 16, 1864, I wrote that I would probably re-enlist and serve to the War s conclusion, yet two weeks later I had changed my mind. I want discuss this change of heart. The following excerpts from my diary and various letters to my parents set the stage for my comments. 1 OWH, Jr. 1 All page number reference the following work: Howe, Mark De Wolfe (Ed.). (2000). Touched with Fire: Civil War Letters and Diary of Oliver Wendell Holmes, Jr. New York: Fordham University Press. (Original work published in 1946 by the President and Fellows of Harvard College.) 4 1

98 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Page 50 June 2, 1862 Written on field of battle... It is singular with what indifference one gets to look on the dead bodies in gray clothes which lie all around (or rather did We are burying them today as fast as we can -) As you go through the woods you stumble constantly, and, if after dark, as last night on picket, perhaps tread on the swollen bodies already fly blown and decaying, of men shot in the head back or bowels Many of the wounds are terrible to look at especially those from fragments of shell I told em to shoot any man who ran and they lustily buffeted every hesitating brother I gave one (who was cowering) a smart rap over the backsides with the edge of my sword and stood with my revolver & swore I d shoot the first who ran or fired against orders Well we licked em and this time there was the maneuvering of a battle to be seen splendid and awful to behold... Page 60 July 5, 1862 Harrison s Landing At midnight started and marched through terrible rain & mud till we reached the James, the next afternoon. The anxiety has been more terrible than almost any past experience but through all I kept pretty lively only getting down when on the last of our march I was told by Cheerful birds like Tremlett & co that we must surrender or be cut to pieces within 36 hours. Page 64 Sept. 17, 1862 Beyond Boonsburg Bivouac (This was written in the morning before the fights at Antietam began.) I don t talk seriously for you know all my last words if I come to grief You know my devoted love for you those I care for know it Why should I say any more It s rank folly pulling a long mug every time one may fight or may be killed Very probably we shall in a few days and if we do why I shall go into it not trying to shirk the responsibility of my past life by a sort of death bed abjuration

99 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Page 74 Dec. 12, 1862 Near Falmouth Virginia... stretched out miserably sick with the dysentery, growing weaker each day from illness and starvation... (The first battle of Fredericksburg)... I see for the first time the Reg going to battle while I remain behind a feeling worse than the anxiety of danger, I assure you Weak as I was I couldn t restrain my tears I went Hosp the only tent into the left here listless and miserable. Page A.M. May 1, 1864 Hz. 6 Corps Dear Mother I have written every chance I had so far all right fighting every day shan t try to tell particulars till I can write at leisure Just think of it Today is the 7 th day we have fought, not pitched battles all them of course, but averaging a loss I guess of 3000 (three thousand) a day at least. Page 117 May 13, 1864 Diary In the corner of woods referred to yesterday the dead of both sides lay piled in the trenches 5 or 6 deep wounded often writhing under superincumbent dead... The losses of our Corps in these nine days are (10,547) ten thousand five hundred & forty seven! Page 122 May 16, 1864 H.Q. 6 th Corps... Enough that these nearly two weeks have contained all of fatigue & horror that war can furnish nearly every Regimental officer I knew or cared for is dead or wounded. 4 3

100 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Page 126 May 18, 1864 Diary... The whole ground stunk horribly with dead men & horses of previous fight... Page 137 May 30, 1864 Diary It is still kill kill all the time. Page 142 June 7, 1864 H.Q. 6 th Corps I started in this thing a boy. I am now a man and I have been coming to the conclusion for the last six months that my duty has changed.... reason is my honest belief that I cannot now endure the labors & hardships of the line... Page 149 June 24, I tell you many a man has gone crazy since this campaign begun from the terrible pressure on mind & body.... I hope for success strongly before the end of the summer but at what a cost & by & by the sickness will begin I hope to pull through but don t know yet. (The sickness I am referring to was dysentery.) 4 4

101 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes I close with a quote from the personal correspondence of Marion Frankfurter, wife of Justice Frankfurter. My reading of the Civil War poem she is referring to occurred after I retired from the court in These are Marion s comments upon my reading a favorite Civil War poem: He was terribly moved by it, and before the end the tears were streaming down his face and his voice broke and trembled. I couldn t control myself either, and at the end he turned to me and I to him, just openly crying. 2 Beginning with the publication of my war diaries in 1946, scholars argued that my wartime experience diminished my idealism and led me away from conventional religion and morality. Some also suggested, responsible for many of my least appealing characteristics: my detachment and cynicism. Soon, each of my biographers attempted armchair psychology. As an example:... the deadening of sympathetic feelings, the Olympian aloofness, the spectator view, books to calm the nerves, the sentiment of honour, the belief in heroic action, the disbelief in causes. 2 Marion Frankfurter memorandum, March 8, 1935, Box 54, folder 5, Holmes Papers, Harvard Law School Library. 4 5

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103 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Justice Oliver Wendell Holmes, Jr. Dissent in U.S. v. Schwimmer U.S. v. Schwimmer, 279 U.S. 644, 654 (1929) This dissent, joined by Brandeis, was written by me when I was 88. The majority affirmed the denial of a citizenship application by Rozika Schwimmer, a 50 year old woman who said her pacifist views would not permit her to bear arms in the defense of the United States. I have also attached two letters I wrote to Mrs. Schwimmer on January 30 and February 8, She sent me her sister s book, Great Musicians as Children, which touched me deeply. Dissent: Of course the fear is that if a war came the applicant would exert activities such as were dealt with in Schenck v. United States, 249 U. S. 47, 39 S. Ct. 247, 63 L. Ed But that seems to me unfounded. Her position and motives are wholly different from those of Schenck. She is an optimist and states in strong and, I do not doubt, sincere words her belief that war will disappear and that the impending destiny of mankind is to unite in peaceful leagues. I do not share that optimism nor do I think that a philosophic view of the world would regard war as absurd. But most people who have known it regard it with horror, as a last resort, and even if not yet ready for cosmopolitan efforts, would welcome any practicable combinations that would increase the power on the side of peace. The notion that the applicant s optimistic anticipations would make her a worse citizen is sufficiently answered by her examination which seems to me a better argument for her admission than any that I can offer. Some of her answers might excite popular prejudice, but if there is any principle of the Constitution that more imperatively calls for attachment than any other it is the principle of free thought not free thought for those who agree with us but freedom for the thought that we hate. I think that we should adhere to that principle with regard to admission into, as well as to life within this country. And recurring to the opinion that bars this applicant s way, I would suggest that the Quakers have done their share to make the country what it is, that many citizens agree with the applicant s belief and that I had not supposed hitherto that we regretted our inability to expel them because they believed more than some of us do in the teachings of the Sermon on the Mount. (Underlining added) 4 7

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105 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Mrs. Rozika Schwimmer East 70th St., N.Y.C. Supreme Court of the United States Washington, D.C. January 30, 1930 My dear Madam You are too intelligent to need explanation of the saying that you never must thank a judge - which I often have quoted from a judge who was on the bench when I was young. If his decision was of a kind to deserve thanks, he would not be doing his duty. A case is simply a problem to be solved, although the considerations are more complex than those of mathematics. Even when as in your case it was only to interpret a statute, Madam, you appreciate that the opinion of the majority simply meant that they did the sum differently - that duty and reason seemed to them to require a different answer from that which the minority reached. After which protestation, I must add that of course I am gratified by your more than kind expression, and that I thank you. Very truly yours, O.W. Holmes Mrs. Rozika Schwimmer 4 9

106 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes Mrs. Rozika Schwimmer East 70th St., N.Y.C. Supreme Court of the United States Washington, D.C. February 5, 1930 My dear Madam Will you and your sister? please accept my thanks for the two charming books that you have been good enough to send to me. I say charming and I mean charming. I become a child again on reading them and sentimental tears drop from my eyes as I follow the boy chasing the rainbow or the youth of the other boys who followed the rainbow music. The law also is a rainbow, but to older eyes, and you have made me forget it. I am truly much obliged to you both and am, Very sincerely yours, O.W. Holmes Mrs. Rosika Schwimmer 4 10

107 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes My Thoughts on Religion Following are portions of two letters that set forth my thoughts on religion. Remember William James (The Varieties of Religious Experience, 1902) and I were close early friends who rarely agreed and ultimately drifted apart. February 26, 1918 Dear Laski,... the eternal demand for the superlative degree the unwillingness to accept less than being in on the ground floor with God don t impress me much, except as a fact in psychology. Why should we not be humble why not willing to admit that the primordial wiggle of the first churning of chaos came before our time? Not that I shouldn t like to have an angel about a span long light on the top of my inkstand here and say, God directed me to tell you that it s you and He, that He made the rest but you made yourself and He desires your friendship or other encouraging message that was warmer than the tepid concession of life as it is... April 13, 1929 My dear Laski, Your page written from solitude comes on top of an unanswered longer letter and I begin my reply when about to go to a conference. Your companions at the funeral who took part in prayer they didn t believe in merely illustrate what I am eternally repeating: that man is like all other growing things and when he has grown in a certain crevice for say twenty years you can t straighten him out without attacking his life. That is what gives the power to churches that no rational man would deem worthy of thought if he were growing free and had no past. You know my oft repeated formula that property, friendship and truth have a common root in time, I am not entirely insensible to the effect of church ceremonies even now though neither they nor the patent fallacies in what they read from St. Paul interest me very much but I let time run over me till the show is over. But if, as is unusual, the service is well done, and you are in a crowd moved by emotion, there is a contagion about it

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109 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes William A. Barton 214 S.W. Coast Highway P.O. Box 870 Newport, Oregon Supreme Court Justice Oliver Wendell Holmes, Jr. As Performed by William A. Barton 1. INTRODUCTION Oliver Wendell Holmes Jr. was born in Boston, the son of the famous writer and physician Oliver Wendell Homes Sr. and the abolitionist Amelia Lee Jackson Holmes Sr. founded the Atlantic Monthly and was one of America s most popular 19 th century authors. He wrote The Autocrat of the Breakfast Table and in college authored the famous poem Old Ironsides. Holmes Jr. attended Harvard University. While an undergrad, he was Phi Beta Kappa, named class poet and was honored for writing the outstanding student paper his junior year. During his senior year (1861) he enlisted in the Massachusetts 4 th militia and was soon commissioned a first Lieutenant, serving 4 13

110 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes during the Civil War in the Massachusetts 20 th. He saw action in numerous battles, and was wounded three times, first, at the Battle of Ball s Bluff (1861), then at Antietam (1862) and finally at Chancellorsville (1863). At the end of this life Holmes summarized his own military service with a simple note pinned to two blue uniforms in his closet. On it he had written a single sentence: These uniforms were worn by me in the Civil War and the stains upon them are my blood. After the war Holmes studied law at Harvard, was admitted to the bar in 1867, and then practiced admiralty and commercial law for about 14 years. In 1870 Holmes became the editor of the American Law Review and in 1881 Holmes published the first edition of The Common Law in which he summarized his view that the only source of law is a judicial decision, that judges decided cases on the facts, and that the true basis for judicial decisions are drawn from outside the law. These views identified Holmes as a legal realist and one of the early founders of law and economics jurisprudence. Holmes views on legal realism were summed up in his maximum: The life of the law has not been logic; it has been experience. Holmes became a law professor at Harvard in the fall of 1882, however, in December of 1882, he was appointed to the Massachusetts Supreme Judicial Court. He became Chief Justice in 1899 and served until During his almost thirty year service on the U.S. Supreme Court ( ), Justice Holmes supported economic regulation and broad freedom of speech under the First Amendment. He retired from the Supreme Court at the age of 90 years and 309 days. His distinctive personality and writing style made him an iconic American figure. For example, he was on the March 15, 1926 cover of Time magazine, was the first U.S. judge to receive the nation s highest civilian honor the Medal of Freedom, and addressed the nation on the radio on the occasion of his 4 14

111 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes 90th birthday. Outside the legal world, Holmes helped develop America s unique contribution to moral philosophy known as pragmatism. Holmes contribution to pragmatism is chronicled in the Metaphysical Club by Lewis Menard. The United States Postal Service honored Holmes with a prominent American series ( ) fifteen-cent postage stamp. He died in 1935 at the age of 93. There have been many accounts of Holmes life, including Catherine Drinker Bowen s biography Yankee from Olympus which was a long time best seller. A 1951 Hollywood motion picture The Magnificent Yankee was based on a Broadway play about his life. Justice Holmes was nominated to the United States Supreme Court on August 11, 1902 by President Theodore Roosevelt. He took his seat on December 8, 1902 after being unanimously confirmed by the U.S. Senate. His health began to fail in the summer of 1931 and on January 12, 1932 he submitted his resignation. He died at home of pneumonia in the early hours of March 6, 1935 and was buried two days later, on his 94 th birthday with President Franklin Roosevelt in attendance. Holmes published more than 2,000 signed opinions (and an uncounted number of unsigned memorandum opinions), almost certainly more than any other judge writing for courts of last resort. On the U.S. Supreme Court, he published 975 opinions; 873 for the full court, 30 concurring opinions and 72 dissenting opinions (at least ten other justices have published more dissents). He wrote more opinions than any other previous Justice and when he resigned he was, and remains, the oldest serving Supreme Court Justice. In his years on the Supreme Court bench he did more to mold the texture of the Constitution than any Justice since John Marshall. Known as The Great Dissenter, his dissents in free speech and substantive due process are now the law. His opinions are remarkable not only for a poet s gift of metaphor but also for their brevity, freshness, and freedom from legal jargon. They have a colloquial 4 15

112 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes directness; lightness foreign to the legal temperament; and an insistence on being concrete rather than legalistic, identifying values and policies rather than history. His decisions were invariably practical and realistic. 2. THE PRACTICE OF LAW Holmes awareness of the hard reality of private practice the need to find a client and earn a fee began with his first day on the job. He was admitted to the Massachusetts bar on March 9, 1867, at the age of twenty-six. On his first day as a lawyer he said: The rush of clients postponed on account of weather. what a profession the law is!... what other gives such scope to realize the spontaneous energy of one s soul? In what other does one plunge so deep in the stream of life so share its passions, its battles, its despair, its triumphs? HOLMES:... see how much more the world is governed today by Kant than Napoleon Bonaparte, but we all want happiness. And happiness, I am sure from having known many successful men, cannot be won simply by being counsel for great corporations and having an income of fifty thousand dollars. An intellect great enough to win the prize needs other food besides success. The remoter and more general aspects of the law are those which give it universal interest. It is through them that you not only become a great master in your calling, but connect your subject with the universe and catch an echo of the infinite, a glimpse of its unfathomable process, hint of the universal law. 3. CONTRIBUTIONS TO AMERICAN SOCIAL THOUGHT Justice Holmes was one of the key thinkers, and the central figure in the legal community, in the shift from the pre-civil War America of certainty, religion, orthodoxy and shared values to one of skepticism, science, and diversity. Christian views were dominant concerning the origin of man and the age of the earth at the 4 16

113 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes beginning of the 19 th century. God s laws were thought to regulate not just the natural universe, but also social relations, government and the economy. By the early twentieth century that all dramatically changed. 4. HOLMES PRIMARY JUDICIAL CONTRIBUTIONS AS A SUPREME COURT JUSTICE There are four: 1. He created the modern theory of federalism, and the idea of a living Constitution, that Constitution should be construed flexibly, rather than strictly or narrowly. Not that it is alive, but that the (dead hand of the) past should not be allowed to stifle the present. He interpreted the constitution not as a framework of fixed doctrine which jealously scrutinizes social innovation, but as a system of limits capable of expansion to accommodate new experience. There is clearly a tension between his emphasis on judicial restraint and his emphasis on flexible interpretation. 2. His opinions in Schenck, 249 US 47 (1919), Abrams, 250 US 616 (1919), and Gitlow 268 US 652 (1925), launched the clear and present danger test and the marketplace of ideas views of free speech. Holmes laid the foundations not only for our present American view of free speech, but also our double standard in constitutional adjudication which is such a conspicuous feature in modern constitutional law. By the late 30s the majority had adopted his two-tier approach to constitutional rights, viewing economic and social legislation as permissible if it had any rational basis, while closely scrutinizing laws that restricted free speech or other individual freedoms set out in the Bill of Rights. In one of his strongest dissents in favor of free speech, Abrams at 250 US 4 17

114 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes 616 (1919), he wrote A constitution is not intended to embody a particular economic theory, whether of paternalism and the organic relation of the citizen to the state or of laissez-faire. It is made for people of fundamentally differing views and the accident of our finding certain opinions natural and familiar or novel and even shocking ought not to conclude our judgment upon the question whether statutes embodying them conflict with the Constitution of the United States. Persecution for the expression of opinions seems to me perfectly logical. If you have no doubt of your premises or your power and want a certain result with all your heart you naturally express your wishes in law and sweep away all opposition. But when men have realized that time has upset many fighting faiths, they may come to believe even more than they believe the very foundations of their own conduct that the ultimate good desired is better reached by free trade in ideas that the best test of truth is the power of the thought to get itself accepted in the completion of the market, and that truth is the only ground upon which their wishes safely can be carried out. That at any rate is the theory of our Constitution. It is an experiment, as all life is an experiment. We loath and believe to be fraught with death unless they so imminently threaten immediate interference with the lawful and pressing purposes of the law that an immediate check is required to save the county. Congress shall make no law abridging the freedom of speech. 3. Holmes also mounted an influential challenge to the idea that federal courts in diversity of citizenship cases should be free to disregard the decisions of state courts and create their own federal common law principles to decide the case. Even though he did more to elucidate principles than anyone else, he doubted they were a brooding omnipresence in the sky and insisted the Court must refer to the law of some actual jurisdiction, meaning the state in question. Holmes views paved the way for the 1938 decision after his death, in Erie Railroad v Tompkins, 304 U.S. 64, 58 S. Ct. 817, 82 L. Ed (1938), holding there was no federal common 4 18

115 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes law. 4. In his dissent in Frank v. Mangum, 237 US 309 (1915) and his majority opinion in Moore v. Dempsey, 261 US 86 (1923), Holmes established the principle that state prisoners convicted in violation of the Constitution could obtain a remedy by way of federal habeas corpus. Although his views of the scope of habeas corpus for state prisoners were far narrower than the modern view, still it then was an expansive interpretation of the 1867 Habeas Corpus Act. Holmes refused to accept a procedure of empty forms when African-American and Jewish Defendants were tried in lynch-mob settings in the South. He insisted on the right of the federal courts to intervene in state proceedings by writ of habeas corpus. When a lynch mob defied the courts habeas corpus decree, he presided over the only criminal contempt trial, ever held in the US Supreme Court, US v. Shipp, 203 US 563 (1906). In all four areas of law, the primary vehicles of his innovations were dissenting opinions that often, after his death, became and have remained the majority position. Holmes dissenting opinions made them a popular and prestigious form of judicial expression. 5. HOLMES ORGANIC CONTRIBUTIONS TO AMERICAN JURISPRUDENTIAL PHILOSOPHY Again, there are four. Holmes views about the role of law in society and the function courts should play are found less in his judicial opinions than his wellknown book, The Common Law (1881) and later famous Law Review article, The Path of the Law (1897). These ideas are so widely accepted now that it s difficult for us to imagine our American society without them. 1. Law is inextricably tied to the society that creates it. In The Common Law (1881): The life of the law has not been logic; it has been experience. The felt 4 19

116 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes necessities of the time, the prevalent moral and political theories, intuitions of public policy, avowed or unconscious, even the prejudices which judges share with their fellow-men, have a good deal more to do than the syllogism in determine the rules by which men should be governed. There are no eternal truths, only relative, contingent ones; law flows out of the social conditions and the history of the society. This is anti-natural law; it s a contemporary sociological perspective. 2. Judges don't "find" law as many English and earlier American judges insisted, instead they actually make law. They don't discover grand structures of theory and then reason deductively from those first principles. Judges do this not based on some Platonic form of what law is or should be, but instead based on precedents that reflect the powerful and dominant social forces around them; "the felt necessities of the time." They respond to and adapt those precedents to new circumstances. In each of those related concepts, Holmes rejected formalism and anticipated both modern legal realism and pragmatism. 3. He also articulated a view of the law that, although few presently agree with it in its purest form, has had an enormous influence on the way we view the law. It s the so-called, "bad man" theory of law, also referred to as the predictive theory. This theory, which Holmes set out in his 1897 law review article The Path of the Law is that law is whatever it is you can't get away with. In other words, the law is not about ethics or morality, but about what the government will force you to do, or punish you for doing or not doing. "If you want to know the law and nothing else, you must look at it as a bad man, who cares only for the material consequences which such knowledge enables him to predict." This is the foundation to today s economic jurisprudence. This is also in keeping with his shift from an actor s state of mind or inner thoughts, to focusing on the external, 4 20

117 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes meaning what they actually did. 4. Holmes also believed that law is ultimately a question of force; the side with the greater force will prevail. This is ultimately the way of the world. In modern society it is not just the brute force of the war of all against all, it's not just physical power; it is the legitimate force of the majority through its government in a constitutional democracy. "The first requirement of a sound body of law is that it should correspond with the actual feelings and demands of the community, whether right or wrong." These last two points (nos. 3 and 4) are the basis for most of history s criticisms of Justice Holmes. His evolutionary, functional, policy-saturated views of The Common Law (1881) were a major innovation in legal scholarship. Holmes was a deep student of the common law and a skillful legal analyst, and much like Learned Hand, the greatest lower-court judge in the history of the federal judiciary; he had an intuitive feel for the economic and other policy implications of legal doctrines. His views have now spread throughout law schools, the legal profession, our nation and indeed pervades the Western world. We no longer view the law as static and formalistic. Instead, we see law as a reflection of society; we believe in free speech and the competition of ideas. We accept diverse points of view and dissent. We acknowledge that science changes and that much of life is uncertain. 6. CRITICISMS Justice Holmes is faulted: 1) for minimizing the important role morality plays in law, and that law plays in encouraging virtue (the bad man analysis); 2) for failing to see, or for seeing, but failing to sufficiently consider the ways majorities can oppress minority interests (over-emphasizing the roles power and value play in government); and, 3) for not recognizing what many of us now see as the inherent 4 21

118 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes value of each person and that person's right to exercise personal autonomy and develop their capabilities. The lightening rod here is Buck v. Bell, 274 U.S. 200 (1927). Justice Holmes wrote an eight-to-one decision, joined in by Justice Brandeis, ruling that the state of Virginia had the right to sterilize intellectually disabled individuals against their will. He closed the decision stating Three generations of imbeciles are enough. This case was thoroughly dissected in the recent book Imbeciles by Adam Cohen. The author excoriated the Justice, properly criticizing the procedural background of the case and the holding s lack of respect for individual rights. The idea that Holmes view of law was value-less rather that value-neutral, or, as he believed, value-transparent, is a misunderstanding of his thinking and misses the intellectual context of his analytic skepticism. An omnibus criticism of Justice Holmes, both characterologically and doctrinal can be found in Law without Values by Albert Alschuler. 7. PERSONAL Justice Holmes was a Brahman possessing a strong sense of duty, a kind of noblesse oblige. In his will he left half of his estate, approximately $270,000 to the general treasury of the United States government. The present-day dollar value of his gift is approximately $5, He believed in our Constitutional democracy as a self-evolving system, possessed high standards of self-discipline and maintained a relentless life-long commitment to personal growth and professional excellence. 4 22

119 Chapter 4 The Great Dissenter Justice Oliver Wendell Holmes BIBLIOGRAPHY Alschuler, Albert W. (2000). Law without Values. Chicago: University of Chicago Press. Balmer, Thomas A. (1992). Holmes on Law as a Business and Profession. Journal of Legal Education, December. Balmer, Thomas A. (2005). Present Appreciation and Future Advantage. A Note on the Influence of Hobbes on Holmes. American Journal of Legal History, October. Bowen, Catherine Drinker. (1945). Yankee from Olympus. Boston: Little, Brown and Company. Holmes, Oliver Wendell. (1921). Collected Legal Papers. New York: Harcourt, Brace and Company. Howe, Mark DeWolfe. (1957). Justice Oliver Wendell Holmes: The Shaping Years. Cambridge: Harvard University Press. Howe, Mark DeWolfe (1963). Justice Oliver Wendell Holmes: The Proving Years. Cambridge: Harvard University Press. Menand, Louis. (2001). The Metaphysical Club. New York: Farrar, Straus and Giroux. Monagan, John S. (1988). The Grand Panjandrum. Lanham: University Press of America, Inc. Novick, Sheldon M. (1989). Honorable Justice. Toronto: Little, Brown and Co. Posner, Richard A. (1992). The Essential Holmes. Chicago: University of Chicago Press. White, G. Edward. (1993). Justice Oliver Wendell Holmes. New York: Oxford University Press. 4 23

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121 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding 1 Paul Unger Affinity Consulting Group Columbus, Ohio Contents Introduction Presentation Technology Options Sound in the Courtroom Laptop Versus Desktop Computers Remote Mice Portable Video Presenters (Elmo-Type Devices) Projectors Big Screen Versus Monitors All over the Place Tips/Advice About Using Technology in the Courtroom Don t Overuse PowerPoint Don t Misuse PowerPoint Speak with Passion, Not PowerPoint Use Plain English in Your Speech and Graphics Tutor the Jury in Voir Dire and Opening Statement Have Strong Content in Your Spoken Words, Slides, and Written Materials Don t Dilute Your Message with Too Many Bullet Point Lists Focus on Clear Delivery If the Slide Is a Distraction, Then You Are Missing the Point! Design, Color, and Layout Are Important Does Color Matter? Use Fonts That Are Easy to Read Give the Audience Extra Space on Your Slides Avoid Clutter! Mix up the Media! Don t Read or Use PowerPoint as an Outline Backup, Backup, Backup! Someone Else Should Run the Presentation Hire Professionals When Appropriate It s Never Too Early to Get Training Get Approval from the Court in Advance Treat the Court Staff and Courtroom with Respect Three Guiding Principles for Using Technology in the Courtroom Copyright 2017 by Paul J. Unger.

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123 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Introduction Attorneys under-utilize visual communication, and over-utilize verbal communication as compared to the general population. 1 In a recent study, 387 attorneys and 1657 non-attorneys were surveyed over 3 years to determine how they fit into one of three learning/ communication styles: visual (seeing), auditory (speaking and hearing) or kinesthetic (feeling). 61% of the general population prefers to learn from visual information, while only 46.9% of attorneys prefer to communicate with visual information. Whether our audience is a group of attorneys, clients or jurors, it is clear that more attorneys than not prefer to not use visual information. This is a problem that must change. Whenever appropriate, we need to get attorneys and other presenters to supplement their presentations with visual information. PowerPoint is an excellent tool to present that visual information. Unfortunately, most people grossly misuse PowerPoint and treat it as if it is the only tool in the trial presentation toolbox. Presentation Technology Options There are many tools available that complement PowerPoint, and for good reason. PowerPoint cannot manage and display large numbers of images, documents and video in a flexible way. PowerPoint is very linear in nature, and was never designed to store, manage, retrieve and display a large number of images, document and video. It wasn t designed to organize and display all the exhibits in a civil or criminal trial. It was designed to replace film-based slide shows with an enhanced computer graphics-based slide show. If you need to store, manage, retrieve and display lots of images, document and video, you need to invest in a trial presentation database program. If you are presenting a rehearsed linear slideshow such as in your opening statement or closing argument, PowerPoint is a great option. In fact, many times, you use both. It totally depends on what you are trying to do, your style and your comfort level. What exactly is a trial presentation database program? Imagine having the ability to display to a jury any document, illustration, photograph or video deposition clip within seconds. Also imagine having volumes of documents on your computer organized to help you prepare for trial. This is what trial presentation software is all about. 1 Animators at Law 2007 Study. Interestingly, according to this study, only 18% of non-attorneys learn best by hearing information, as compared to nearly 29% of attorneys. 5 1

124 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Trial presentation software options (these are just some of the market leaders that I believe merit consideration): Trial Director ( Sanction ( OnCue ( TrialPad for ipad ( While I am still convinced that Sanction, Trial Director, or Oncue is needed for larger cases, there are plenty of smaller trials and hearings that could be handled with TrialPad on an ipad. Many of the core features available in Sanction and Trial Director are available in TrialPad. TrialPad does have limitations at least for know. It cannot handle the management of video clips very well. Storage capacity may also be an issue. With that said, TriadPad can still do a quite a bit and is very impressive for a 1 st generation (new) product. Perhaps one of the coolest things it can do is transmit the video signal wirelessly through AppleTV and an HMDI connection (only ipad2). You can also pull up documents, callout areas and annotate (highlight and freehand): 5 2

125 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding You can also pull up photographs and play video clips. The cost is roughly $90.00 for the app, which is like a million dollars in the app world, but still pretty cheap in comparison to other software. In summary, trial presentation software, generally, is particularly good for: Organizing discovery Displaying documents Playing back video Video clipping for impeachment Displaying photographs Adding annotations to images Creating and showing timelines Displaying bullet-point lists 5 3

126 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Example - Instant Retrieval of Documents: In a trial presentation database, by typing the Exhibit # or Bates Number, one can instantly display that document on a large screen. For instance, type P and the image of Plaintiff s Exhibit 2, page 1 will appear. Select an area to magnify key sections of the document at a moment s notice in the courtroom. If you wanted to create a call-out (zoom) in a document in PowerPoint and highlight text, it would take 2 separate programs and about 5-10 minutes (if you know what you are doing). Using a trial presentation program, you can do it in 2 seconds. 5 4

127 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Example Instant Retrieval of Photographs: By typing the Exhibit number or image ID, you can instantly retrieve an endless number of photographs and magnify or annotate them. 5 5

128 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Example Instant Retrieval of Video for Impeachment or Playback: In a trial presentation database, you can simply type in the video name, page and line number to play video to impeach a witness. 5 6

129 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Example Instant Retrieval of PowerPoint Slideshows: By typing the name of the PowerPoint slide show or other designated ID, you can retrieve and play PowerPoint slides or presentations at a moment s notice from within the trial presentation database. In other words, you use it as your control panel to retrieve and display all your exhibits. Sound in the Courtroom Do not rely on standard laptop computer speakers to adequately amplify sound, especially in large conference rooms and courtrooms. Visit the venue and test your speakers. I recommend the use of powered Altec Lansing speaker or a large PA speaker with an amplifier. If in a conference center, ask for a 1/8 inch sound feed so you can amplify sound through the conference center's PA system. If it is too expensive, you can always hold the microphone or lavaliere to your laptop's speaker. This actually works most of the time, but test it out in advance if at all possible. Laptop versus Desktop Computers Desktop computers are not made to be schlepped between courtrooms and hotel rooms every night. Laptops are made to be mobile Desktops are not. Invest in a state-of-the-art laptop computer. 5 7

130 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Remote Mice It is strongly recommended that you invest in a non-infrared based mouse that has a reception rating of at least 50 feet. This will cut back on extra wires hanging all over the place and will give you the ability to advance slides from anywhere in the courtroom. Logitech makes a fantastic remote mouse with a built-in laser pointer and timer for approximately $50 which will fit your needs (Logitech Cordless Presenter USB Laser Pointer - LCD Timer 2.4GHZ $56 on Portable Video Presenters (ELMO-type devices) It never hurts to have a portable video presenter for surprise documents that haven t been scanned. I have never had to use one since I use trial presentation software (Sanction/Trial Director), but it is something to consider for the right situation. Check out Samsung ( The average street price is about $1000-$

131 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Projectors There are many good projectors on the market today. I have a preference for NEC and Panasonic because of their strong performance, warranty and service record. I recommend a projector with a rating of ANSI lumens. If you don t have a huge need for a projector other than occasional trials, you should consider renting a quality projector for about $1,000 per week. Whatever you do, be sure that you have the phone number of a local projector vendor who can bring you a projector fairly quickly in the event that your projector unexpectedly dies in the courtroom. Big Screen versus Monitors All Over the Place Another common mistake is wasting money on individual monitors for jurors and/or other people in the courtroom. In technology-unfriendly courtrooms, it is sometimes necessary to place a few monitors in key areas (witness stand, judge, opposing counsel, etc.), but most of the time a single large 7-10 ft movie screen is more than adequate for everyone. Don t complicate matters and spend unnecessary money on extra monitors unless it is absolutely required. On a related note, it is a colossal waste of money for courts to purchase individual monitors for jurors when the displayed image can be seen on a single large screen. Individual monitors for jurors also diminish attention from you as a presenter. Simply put, courts who get snookered into buying individual monitors for jurors are usually getting ripped off. 5 9

132 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Tips/Advice About Using Technology in the Courtroom Don t Overuse PowerPoint No Technology Replaces the Vividness of One's Own Imagination! You do not need a graphic or slide for every single thought or idea. Otherwise, you risk watering down your message and overloading the jury with information that should be spoken. Always ask yourself, does this slide advance the ball, or is it better left said. Don t Misuse PowerPoint PowerPoint s misuse is a nationwide epidemic. Critics of PowerPoint, like Edward Tufte, go to the extreme and say that the PowerPoint program itself facilitates the making of bad presentations. Moreover, PowerPoint "stupefies" our culture by encouraging fragmented thinking through bullet points and linear slides, further diminishing our attention span, and feeding us heaping spoonfuls of graphic sugar. I disagree. After all, PowerPoint is just a software program a tool that humans use or misuse. When a seamstress sews a crooked seam, should we blame the sewing machine? If a presenter has poor content, bad graphics, or does not communicate clearly, should we blame PowerPoint? If used properly, PowerPoint is extremely effective in delivering information to our fast-paced culture. We do live in a fast-paced, and sometimes, shallow culture. We sometimes want to be spoon-fed the answer - we have little to no attention span and we want to be entertained. We do want anecdotal sound bites - we have become stupefied to some extent. Okay. Now that we know our audience, lets tailor our presentation to our audience! Tufte cites reasons to support his opinion, but he neglects to identify the true evil which has nothing at all to do with PowerPoint. What Tufte is really doing is engaging in a highly academic discussion about how the media world is eroding our intelligence. He is arguing that PowerPoint furthers our culture toward content-free language such as sound bites and slogans. The truth is that PowerPoint is not the problem people are the problem. PowerPoint slide presentations are not spontaneously created by software people create PowerPoint slide presentations! PowerPoint is merely a reflection of the culture that created it a product of its era. So what are your choices? Use PowerPoint or "heaping spoonfuls of graphic sugar" and keep their attention or not use it and potentially lose your audience? It's like a candidate running for president refusing to debate on television because he/she believes television is eroding our minds! Get with the program PowerPoint is an excellent tool if it is used properly. 5 10

133 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Speak with Passion, Not PowerPoint If your goal is to persuade and motivate, give a speech! You should scale back on the use of PowerPoint or other computer graphics. If your goal is to persuade and educate the jury, then it is okay to use PowerPoint IF you use it correctly. One author recently asked Could you imagine if Martin Luther King, Jr. gave his infamous I have a Dream speech using PowerPoint!? This critic implied it would have been bad. I agree to a some extent. If Martin Luther King, Jr. used PowerPoint as 95% of lawyers do (standard bullet lists and over-used cheesy backgrounds), it would have been terrible. However, had PowerPoint been used to simply show a few select photographs in the background depicting discrimination, hate, love and freedom, his famous speech would have been just as good or better. It certainly wouldn t have made it worse! You have to evaluate presentations on a case-by-case basis. Use Plain English in Your Speech and Graphics First, use plain English that everyone understands. This is still the biggest mistake that lawyers make. Instead of saying This litigation is before us today because the defendant failed exercise ordinary care in his relationship as a physician with the plaintiff, and such failure was the proximate cause of the plaintiff s damages, simply say A doctor must do what other doctors would do in a similar situation. Cut the jargon out of your presentations and speak like a human being. Tutor the Jury in Voir Dire and Opening Statement Jurors are pretty street smart, but when it comes to science and numbers, you better provide some tutoring up front! Less than half of the jury box will have math skills above performing basic one-step calculations. Create a visual glossary to explain terms that will be used in the trial. Don't make the mistake of assuming that your expert will educate the jury for you. Create a road map for the jury ahead of time so they can spend more of their time understanding and analyzing your expert's position than learning a new complex vocabulary. This is a very simple example of just one slide used to explain a TIA (Transient Ischemic Attack), or mini-stroke. 5 11

134 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding We used about a dozen similar slides to explain other important medical terminology. Note that we did not create a text-based slide to define TIA or its symptoms. We could have, but felt that the visual, accompanied by good storytelling was much more effective. We showed the slide and then verbally informed the jury that a transient ischemic attack (TIA) is a stroke that lasts only a few minutes that is what "transient" means. It occurs when the blood supply to part of the brain is briefly interrupted that is what ischemic means "decrease or interruption in blood flow." Further, that TIA symptoms, which usually occur suddenly, are similar to those of stroke but do not last as long. Finally that symptoms can include: numbness or weakness in the face, arm, or leg, especially on one side of the body; confusion or difficulty in talking or understanding speech; trouble seeing in one or both eyes; and difficulty with walking, dizziness, or loss of balance and coordination. Have Strong Content in Your Spoken Words, Slides, and Written Materials PowerPoint cannot mask the fact that your content or case stinks. Infamous PowerPoint-Basher, Edward R. Tufte correctly states in his essay The Cognitive Style of PowerPoint 2 that it is easy to let PowerPoint shorten evidence and thought, organize complex information in a single-path model template, break up narrative and data into minimal fragments, decorate and fluff a slide show with format, not content; and promote an attitude of commercialism that turns everything into a sales pitch. All of these evils diminish content. Tufte strongly believes that PowerPoint promotes or actively facilitates the production of lightweight presentations. This is where I disagree with Tufte. I have 2 Edward R. Tufte, The Cognitive Style of PowerPoint (2004), p

135 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding personally witnessed thousands of good and bad presentations half didn t use PowerPoint and the other half did. Content and clear delivery dictated the success of those presentations not PowerPoint. Don't Dilute Your Message with too many Bullet Point Lists Tufte, in his essay Cognitive Style of PowerPoint, claims that the PowerPoint programs coerces slide makers into using brief phrases in the form of bullet lists. Tufte claims that bullet lists make us stupid and lazy. Specifically, bullet lists are (1) too generic and (2) leaves critical information out. First, the notion that Bill Gates is coercing us into using using bullet point lists is ludicrous. People who are forced into using the program lack understanding of the program and how to use its features. PowerPoint is nothing more than a blank piece of digital paper waiting to drawn, written and colored. No one is forcing anyone to use bullet point lists. While I agree that bullet point lists are generally overused and too verbose, I also disagree with the notion that they shouldn't be used because they leave critical information out. Bullet lists in PowerPoint are incomplete by design! Bullet lists, used properly, are nothing more than headings or titles about a main thought or idea. The substance behind the bullet point is delivered verbally and/or in written materials (or trial exhibits). The key to using bullet points effectively is to NOT OVERUSE THEM. Tufte claims that since text or data on paper is more complete, that people should follow along on paper and pitch PowerPoint in the garbage completely. Again, I must disagree. Tufte s criticism on this point is probably based on seeing countless bad presentations that contain slide after slide of bullet points. First, PowerPoint was not designed to replace the information or data contained in printed literature. Second, PowerPoint slides and bullet lists should, in most situations, be incomplete. The audience still depends on a verbal presentation and written materials (although, admittedly I have seen some speakers simply handout their PowerPoint slides as the written materials I strongly don t recommend it). Third, we use PowerPoint slides most of the time to introduce, simplify, and reinforce information. There is nothing wrong with that! It's kind of like when we use flash-cards (using index cards) to help us study for a test only PowerPoint is much prettier! Focus on Clear Delivery Steps to Create a Successful Presentation Supplemented by PowerPoint 1. Develop excellent content and handout materials 2. Practice the CLEAR delivery of that content 3. Prepare your PowerPoint slides based on what you need in 1 and

136 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding 4. Practice, Practice, Practice with technology (PowerPoint &/or Sanction/Verdical) Steps to Create a Bad Presentation Supplemented by PowerPoint 1. Prepare your PowerPoint slides 2. Speak from your PowerPoint slides PowerPoint can fragment the presentation of thoughts and data if you let it. Heck, any visual aid can fragment a presentation if you don t know how to transition smoothly. This is why you should first write the content of your speech (or content outline). The second thing to do is focus on practicing its clear delivery. The last step should be to create your PowerPoint slides based on demands from the content and delivery. While PowerPoint can fragment thoughts if you let it, the bottom line is that the author of the PowerPoint makes the decisions about content and delivery. PowerPoint is an incredibly flexible program. Its only limitations are (1) the creativity of its users/presenters, and (2) the failure to understand how to use the program effectively. For instance, Tufte in his essay (see footnote 2) often claims that PowerPoint is low-resolution and therefore cannot display as much information as paper. Therefore, its content will always be inferior to paper. This is just plain wrong. You can scan a high- resolution image, whether it is text on paper, data on paper, an illustration or a photograph and display it at that same high-resolution only BIGGER often times on a ft. screen 3. My point is this: Using your communication skills, creativity and knowledge of PowerPoint, you can easily overcome the problem of a fragmented presentation. If the Slide is a Distraction, Then You Are Missing the Point! The whole purpose of PowerPoint is to make a point not a distraction. Avoid the over-use of distracting animation, sound effects and cheesy backgrounds. This is what gives PowerPoint a bad name! Animations and bad flashy backdrops can be very distracting. This obviously diminishes your presentation and your credibility. This doesn t mean that your presentation shouldn t look like a million bucks. Hire an artist or consultant to create an original background that is professional looking and one that no one else has seen. Pick one or two effects in PowerPoint to bring in text and graphics and stick with just those effects. I recommend the fade effect. This effect is very professional, tasteful and is not at all distracting. Unless you are just starting to use PowerPoint for the first time, try to avoid the use of standard PowerPoint design templates. Most people have seen these 3 Displaying an entire screen full of text, as Tufte suggests, is not recommended. That would be idiotic. Utilize written materials or exhibits for recitations of full text. 5 14

137 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding templates and graphics dozens of times, if not more. Try to create graphics that give you a unique and professional brand. A great way to do this is to contact a local art school and hire a student to develop this for you. Tell them that you are looking to create a PowerPoint backdrop for your company's presentations. Ask them to create a JPG and then to produce a.potx or.pot file that you can load into your PowerPoint templates folder. Here are some other excellent sources for PowerPoint design templates: 1. Digital Juice ( Digital Juice is a suite of thousands of PowerPoint backdrops and royalty-free graphics, clip art, sound and animation. 2. Microsoft Office Online ( Microsoft publishes free templates that you can download. 3. Sonia Coleman PowerPoint Templates ( This is a nice library of free templates and tutorials. Design, Color, and Layout Is Important Design conservatively and with professionalism. Most of the time you should use darker backgrounds (such as dark blue, green, etc.) and high-contrasting color text (such as white, yellow, etc.). A white background is okay makes the text harder to read, especially if you have more than one slide. Also remember to be color-blind friendly. One in ten of us have problems interpreting color. Avoid the combined use of red-green, green-yellow, and blue-yellow. Does Color Matter? Yes, but only in the sense that the presentation must appear professional. However, in the grand scheme of things, our real-life experience, backed up by focus group research, tells us that so long as it is professional in appearance and easy to read/see (admittedly, a very subjective standard), jurors don t give a hill of beans if the slide has a green background, a blue background or a black background. Furthermore, our research has shown that color used in a PowerPoint slideshow in the context of a trial does not affect memory retention. Jurors pay more attention to the content (merits of the case) and delivery than the aesthetics of a PowerPoint presentation. The failure to use PowerPoint or some other visual memory-reinforcing aid may affect memory retention, but color generally doesn t matter. The exception to this is when you deviate from a color scheme. Say you use white text on a blue background in a 20 slide presentation. Then you decide to use yellow text on a blue background for on slide 10. That will indeed have a 5 15

138 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding positive effect on memory retention. However, it could easily be argued that the same effect could be accomplished by changing the font or underlining. Use Fonts That Are Easy to Read Avoid the use of Courier and Times New Roman fonts. Instead use fonts like Calibri, Tahoma, Arial and Helvetica. These fonts are easier to read from longer distances and the nose-bleed seats. Give the Audience Extra Space on Your Slides Avoid Clutter! Avoid information overload. Your slides and graphics should not be too cluttered. Try to limit bullet lists to 3-4 per slide with no more than words on a single slide. Don t obsess over this. Of course there are exceptions to every rule. For example, if you want to display a statute or a jury instruction, how are you going to limit that slide to 10 words? You can t! If you can adhere to these general rules or goals 90% of the time, you will be in great shape. Mix Up the Media! Remember to use white boards, chalk boards, easels and enlarged pictures from time to time. There are multiple reasons for this. First, a jury can become bored with PowerPoint and a movie screen just as easy as they can with a chalkboard. We know from the television industry that changing the frequency of angle-shots within the same visual scene improves memory recognition. Count the number of angle changes within the same visual scene in a sitcom from the 60s versus a sitcom (or reality shows) created today. This teaches us that people are easily bored. So mix up the media. The second major reason for not relying on PowerPoint 100% of the time is that sometimes you want an illustration, timeline or photographs sitting on an easel for a long period of time so the jury can look at it for clarification or other reasons. If you have a blow-up, you can do that and also show PowerPoint slides or images through Sanction. Don t Read or Use PowerPoint as an Outline Many people wrongly believe that is it appropriate to read PowerPoint slides or use it as an outline. I respectfully submit to these people that they have been led down the wrong road. There is nothing wrong with using a slide here and there to remind you of an important topic. However, there is a big difference between that and creating slides with outline numbering and long lists. Don t do it. It is lazy, grossly ineffective and painful to watch as an observer. Your message gets lost in all the needless slides and text. 5 16

139 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Backup, Backup, Backup! In smaller dollar cases that cannot justify the expense of a trial presentation consultant, the biggest mistake that I see is failing to bring a backup computer, external USB hard drive or projector. When things go wrong, as they sometimes do, you must have backup equipment. Good rule of thumb bring 2 of everything. Someone Else Should Run the Presentation If a CLE presentation, and it is just PowerPoint that you are running, it is fairly easy to run the presentation yourself if you are comfortable with it. You may want to bring an IT person or assistant with you who is comfortable for a time or two until you become comfortable enough to do it yourself. Now days, so many people are comfortable with running PowerPoint that you can probably find a stranger or an audio/video coordinator to help you. Don't bank on it though. You should learn enough to at least add/remove slides, make textual changes, and connect the laptop to the projector before you fly solo. If a courtroom presentation, it is probably a mistake to run the presentation yourself. Running the technology in the courtroom and trying to be a trial lawyer is asking for trouble. Whether it be a paralegal or a consultant that you hire, whatever you do, don t run the presentation yourself. Being in the trenches of high-tech trials on a daily basis, I can honestly say that at least one potential disaster occurs each month. These issues should be invisible to the lawyers, jurors and judge! Lawyers have enough to worry about trying to hit 90-95% of the important issues in the case. The last thing that you need is to worry about a failing hard drive or replacing a bulb in your LCD projector. Delegate these worries to someone else! 5 17

140 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Hire Professionals When Appropriate Don't bite off more than you can chew, especially on a big case. When the case justifies the expense, hire a professional artist and a professional consultant to put your presentation together. Us lawyers tend to believe that we can do it all. Think again. Not only do most of us lack the talent of a professional artist & consultant, but if we tried to do their work at their level, we wouldn t have time to practice law. I am reminded of what one of my early mentors taught me long ago. Early in my career, I tried do everything practice law, rehab old houses, fix the plumbing, build computers, etc. Frustrated with me at the time, my mentor asked me if I wanted to practice law or play with computers. I quickly got his point. Ironically enough, I now play with computers. It s Never Too Early to Get Training Lawyers are text-book procrastinators. Look, you cannot wait until one month before trial to become proficient with a software program that is going to either make or break you in the courtroom! There are fantastic training programs available for programs like Sanction and Trial Director. Get your training out of the way four to six months before your trial and think about using a professional consultant to hold your hand through your first trial. Get Approval from the Court in Advance Exercise professionalism and get permission from the court in advance. You clearly do not have to expose your entire game plan. Simply tell the court at the appropriate time that you may want to display some evidence through the computer and a big screen. Ask if this will be okay. Treat the Court Staff and Courtroom with Respect Would you walk into the judge's private office and start rearranging his/her furniture? Would you set up a 10 ft movie screen in his/her private office? Heck no, you wouldn't! Not unless you had a death wish. So don't do it in the courtroom without first making friends and consulting with the judge, bailiff, court reporter, court clerk, or others that use that courtroom as his/her office on a daily basis. How would you like it if someone just walked in and started rearranging your office?! 5 18

141 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding Three Guiding Principles for Using Technology in the Courtroom: (1) Have something meaningful to present; (2) Forget what you learned in law school and say it like a human being; and (3) No technology in the world is going to help you with the Rules 1 and 2! Paul J. Unger, Esq (punger@affinityconsulting.com) is an attorney and nationwide trial presentation consultant for Affinity Consulting Group.. Tell me and I will forget Show me and I will remember Involve me and I will understand - Confucius hack (but a wise hack) 5 19

142 Chapter 5 A Picture Is Worth a Thousand Words: PowerPoint Storyboarding 5 20

143 Chapter 6 ipad for Litigators Paul Unger Affinity Consulting Group Columbus, Ohio Tom Mighell Contoural Inc. Dallas, Texas Contents Introduction and Tour of ipad What Is It and Why? Overview of the ipad Why Use an ipad in the Courtroom? Deadline Calculators Court Days Pro Lawyer s Professional Assistant Deposition Management and Review TranscriptPad Depositions The Deponent Jury Selection/Tracking Picking a Jury with an ipad ijuror Presenting from the ipad Getting Your PowerPoint on Your ipad PowerPoint Instructions Keynote Instructions SlideShark Instructions Showing Presentations Using Apple TV Additional Resources Evidence Presentation Trial Pad Honorable Mentions Legal Research Courtroom Chatting BT Chat HD Other Must-Have ipad Apps So Many Apps... Which One Is Best?

144 Chapter 6 ipad for Litigators 6 ii

145 Chapter 6 ipad for Litigators INTRODUCTION AND TOUR OF IPAD Tablets are quickly becoming a very useful tool for lawyers. It is one of the biggest innovations in legal technology in the past two years. The ipad really paved the way for the rest of the industry with its' design. Its functionality is equally as nice and continues to improve as legal software developers rush to create apps for lawyers. Several new legal-specific apps appear almost on a weekly basis. Tablets have integrated themselves into the workflow of attorneys irrespective of firm size or practice area, and nowhere has that been more true than at trial. From note taking, to exhibit marking and handling, to deposition transcript management, these little computers can supercharge your litigation practice. Our presentation will discuss how to use tablet computers to enhance your day in court; these materials will give more of a general overview on using the ipad or other Tablets in your practice. What is it and Why? I like to describe the ipad or Tablet as an instant-on computer that you can control with your finger. There s no booting-up process no keyboard needed It is instant access to information traditionally accessed from your desktop computer or laptop. It was designed as a consumption device a device used primarily for reading/accessing information and very light typing, but it s ease-of-use and big screen is so addicting that it has morphed and has been adapted to do way more than Apple and Steve Jobs originally intended. If you carry around a legal pad and a lot of paper in a legal file or Redweld, the Tablet can become your legal pad and digital folder. It is sparking new life and redefining the phrase Paperless Law Office. For courtroom work, the Tablet can be used to access exhibits, pleadings, and accompanying material. There are trial presentation apps now that make it easy to display those exhibits wired or wirelessly to projectors or monitors in the courtroom. 6 1

146 Chapter 6 ipad for Litigators Overview of the ipad Front View Labeled 6 2

147 Chapter 6 ipad for Litigators Back View of ipad - Labeled 6 3

148 Chapter 6 ipad for Litigators WHY USE AN IPAD IN THE COURTROOM? For our courtroom discussion, we will focus on the ipad because of the courtroomspecific apps that are available for it. Certainly most attendees at this CLE presentation have seen an ipad at this point. The ipad has some drawbacks, but essentially it is so good for the courtroom because it is so light and easy to hold and operate. It is very easy to understand, with little training required. (In fact there is virtually no training for those who use an iphone.) Among the often cited negatives of the ipad is the fact that it has no USB port for plugging the device into other devices and the battery is not removable and replaceable. The first ipad did not have a camera and the ipad 2 s camera is certainly less than the state-of-the-art. However the fact that it can use Apple's FaceTime application for video chatting with other ipad and iphone users makes the ipad 2 a significant improvement all by itself. The 3rd and 4th generation ipad significantly improved the display with the Retina display, and the camera is very good as well. The ipad has a 10.1 inch display, while many of its competitors have 7 inch displays. Because lawyers are so involved with the documents, it seems to me that the 10 inch display is far preferable. The ipad is primarily designed to be a content consumption device rather than a content creation device. You can store all of your music, electronic books, documents and other items in it. In addition you can browse the web, check your and download apps to do all sorts of important things (including playing Angry Birds.) One of the reasons why the lack of a USB port is not troubling is that the ipad comes with Bluetooth capability so that keyboards, printers and other devices can be wirelessly connected to the ipad. In our opinion, the reason why ipads are rapidly catching on with trial lawyers is that a laptop, netbook or even the traditional convertible tablet PCs are useful at counsel table, but cannot be carried in the courtroom easily when the lawyer is standing at the podium or addressing the jury. Essentially, the ipad is just a little heavier than a paper legal pad in a holder and not nearly as heavy as the lightest netbook or laptop. One simply cannot question those in a jury pool while keyboarding their responses into a traditional computer. There's probably no surer way to get jurors to clam up and to give them the impression that the lawyer is transcribing their personal information. (This is true even though the court reporter may be quietly transcribing it in many cases.) Let's take a look at some of the ways a litigator would benefit by using an ipad, from initial receipt of a lawsuit all the way through jury verdict. 6 4

149 Chapter 6 ipad for Litigators DEADLINE CALCULATORS Court Days Pro ($2.99) Court Days Pro is a rules-based legal calendaring app for the iphone and ipad. It provides legal professionals with the ability to calculate dates and deadlines based on a customizable database of court rules and statutes. Once the rules are set up in the application, calculations are performed using a customizable list of court holidays. It has California s Superior Court rules, but future versions will allow the purchase of preprogrammed rule sets for certain jurisdictions. You do have the ability to add your own local court rules for your own jurisdiction. Once you chose a triggering event (e.g., a motion hearing date) the application will display a list of all events and corresponding dates and deadlines based of trigging event (e.g., last day to file moving papers, opposition, reply briefs). Icons on the screen show the number of calendar days and court days from the current date for all resulting events. Date results can be added to the device's native calendar app and all results can be ed straight from the application. 6 5

150 Chapter 6 ipad for Litigators It is preprogrammed with a list of all federal holidays, but is fully customizable to allow the addition or removal of any court holiday to the list. Lawyer s Professional Assistant ($4.99) The Wolfram Lawyer's Professional Assistant is a reference tool made specifically for legal professionals. Main features include: Calendar computations Legal dictionary Statutes of limitations for each US state 6 6

151 Chapter 6 ipad for Litigators Visa types, including basic requirements, common issues, and extensions and limits Financial computations, including fees calculator, settlement calculator, current interest rates, historical value of money, and federal U.S. tax rates Crime rates and history for specific crimes, as well as state and national average comparisons Demographics of population and economy for a specific city Investigative information, including weather, company information, IP lookup, and blood alcohol calculator Damages and estate planning computations for occupational salaries, cost of living, life expectancy, and present or future value 6 7

152 Chapter 6 ipad for Litigators DEPOSITION MANAGEMENT & REVIEW TranscriptPad ($89.99) (ipad only) From the makers of TrialPad, Ian O Flaherty and Saurian software have hit it on the head with their twin Apps for trial prep (TranscriptPad) and trial presentation (TrialPad). TranscriptPad boasts the capability of searching across an entire case, one transcript, color code your issues, highlight, underline, bookmark and assigning an issue code if you do that sort of thing. TranscriptPad does 2 core things very well: (1) allow you to carry in a single ipad with all your depositions instead of bankers' boxes full of paper, and (2) issue code depositions. One note that the transcript must be in text/txt format, so you should ask the Court reporter for a copy in ASCII in TXT format. Converting from PDF to Word and then TXT will not work. If you receive a file in West s proprietary PTX format, you can download and E-Transcript viewer (downloadable for free at: that, according to TrialPad s website, allows you to open the PTX file and save it as an ASCII/TXT file to use in TranscriptPad. 6 8

153 Chapter 6 ipad for Litigators DEPOSITIONS The Deponent ($9.99) The Deponent App is a deposition question and exhibit outline application for legal professionals. There are 150+ preprogrammed (or add your own) deposition questions by categories, including admonitions or expert qualifications. The app allows you to organize the order of questions and customize the questions for witnesses. Each question can be linked to an exhibit. Exhibits can be loaded into the app from itunes and Dropbox in PDF, MS Word and other file formats. 6 9

154 Chapter 6 ipad for Litigators JURY SELECTION/TRACKING Picking a Jury with an ipad (Excerpt from ipad in an Hour for Litigators) by Tom Mighell Excerpted and adapted from ipad in One Hour for Litigators by Tom Mighell, now available from LPM Publishing. If you are in the fortunate position of having the jury list a few hours or even a day before voir dire begins, you can choose from several innovative ipad apps to help select a jury and track juror information. As a technology-focused person, the most frustrating part of a trial for me has always been jury selection. While trying cases, I was usually relegated to sketching out a grid on a legal pad because no good technology was available for keeping track of my voir dire activities. Fast forward to the present, and the ipad is here with a solution to my frustration or make that solutions in the form of several innovative jury selection apps. These apps make it relatively easy to keep all the information about your jury in one place, where you can review or share it with others. Before diving into these apps, however, a word of caution. These apps require quite a bit of data input before they can be used to best effect; for best results you should already have all the information on each potential juror entered before you even start the jury selection process. In many courts, however, you might not see the jury list until fifteen minutes before voir dire begins. These apps work best for those trials where you receive the jury list at least a few hours ahead of time, if not a whole day. Probably the easiest app to use for picking a jury is ijuror. When you open the app for the first time, you ll see several options New Trial, Saved Trials, Browse All Jurors, Charts & Stats, and Unlink Dropbox Account. Select New Trial, and on the next screen enter the trial name, the date, and the size of your jury, plus alternates. On the next screen, you ll see blank rows of chairs, where you will seat your jury panel. To match the screen to the seating arrangement in the courtroom or jury room, select Seat Layout in the upper right corner and select the number of rows and number of seats per row. Your main screen should now match the voir dire panel seated in front of you. Here s where the work comes in. Press on an empty seat and a juror information screen will appear. You can enter the Name, Juror Number, Employment, Hometown, and any notes you have on the main screen. If you press Enter/View Basic Juror Details at the top of the screen, you can enter other demographic information Age, Sex, Race, Marital Status, Children, Education, and your current opinion of the person. (You can also enter custom fields here for other 6 10

155 Chapter 6 ipad for Litigators information you like to collect.) Press Save Information, and on the main screen you ll see that seat is now filled with a juror. Hint: if you press the gear button in the upper right corner, you ll find options to quick enter basic juror information, and edit multiple jurors at once, among other things. Once you ve finished, you should have a full panel on the main screen. Once you start jury selection, just press on a juror to take notes on his or her responses. You can also add a custom list of questions, which will appear on the individual page for each panelist, where you can enter their answers. To view your entire panel at a glance, press Juror Overview, and you ll see a digital version of the legal pad I once used at trial. You can also share this information with others on your trial team, either via Bluetooth or File Sharing through Dropbox or itunes. However, the person you re sharing with must also be using ijuror to receive the file. Once you ve finished with jury selection, simply drag the panelists into the appropriate location the Peremptory wastebaskets (for Us or Them), the Cause wastebasket, or into a seat on the final jury panel. If you use ijuror, you might also want to try ijuror Stickies, which enables you to keep additional information on jurors. You can create rows with different colors and group multiple jurors into different categories. Like ijuror, you can also share anything created here with others via or printing. My only gripe is that this functionality should have been built into ijuror, where all information could exist in the same place. It s a great idea for an app, but it belongs with the other ijuror information. Your ijuror information is also available online through ijuror Connect, a subscription service that allows you to enter all your jury information on a desktop or laptop, and then import the data into the ipad app. When you ve finished with your case, you can import the updated information back into the online database, to keep a permanent record of all your jury trials. It would certainly be more convenient if the app and online service could communicate and synchronize directly with each other; hopefully this will be a feature added in future releases. Pricing runs between $30 and $140 per month, depending on the size of your firm. JuryStar offers a different spin on jury selection: ranking jurors based on their answers to your voir dire questions. Like ijuror, you ll have to do quite a bit of data entry on your jury pool. To get started, press the Trials button at the bottom, then the + sign next to Saved Trials. Enter the name of your trial, and then specify the size of your jury pool; JuryStar can display a pool of up to 3,025 panelists 55 rows of 55 jurors. When you have created your trial, press the Enter Cells button at the bottom. Press on a jury seat, and then Juror Info, and you will see a screen where you can enter basic information on the panelist: Name, Race, Gender, Age, Marital Status, 6 11

156 Chapter 6 ipad for Litigators Education, and places for more demographic information and notes. This is where the hard work is done. When you ve finished entering information on each juror, you need to tap the name to seat the juror in the grid above. Once the panel is completed, you can load your voir dire questions. Press Load Questions, and then the + sign to add a new topic. After the topic is added, you can add as many questions under that topic as you like. The app comes preloaded with topics like Prior Jury Experience, Prior Legal Experience, and Experience with Law Enforcement, but you can create any topic you want. When you re ready to select the jury, press on the Voir Dire tab; all of the panelists you entered will be listed here, along with all of your questions at the bottom of the screen. As you go through your questions, press the panelist answering your questions, and then move the rating scale (currently with a range of 5 to +5) to indicate your opinion of how they answered your questions. Press the Rate button to assign the rating. You can also press Like or Dislike to indicate an overall opinion of the panelist (see Figure 5.2). After the questioning is completed, you can move to the Strike Jurors screen to indicate the jurors that are struck, either by you, the opposing party, or the court. JuryStar offers no way to rank the jurors based on the scores you gave them it just provides the individual scores for each juror in that panelist s individual data cell. There s also no way to export your jury information to other formats outside of your ipad. ijury is similar to JuryStar, in that it also allows you to score jurors on their answers to pre-populated as well as custom questions. When you set up a case, you are able to specify the number of panelists, and whether you ll want to see Civil, Criminal, Custom, or Common Voir Dire questions. If you have your own custom questions, enter them on the setup page. Once your jury information is entered, you are able to see basic demographics for the panelists (as in ijuror). And when you select Group Score, the questions you selected appear on that screen. As you question jurors, you can score their answers to your questions by pressing the + or buttons (see Figure 5.3). Like JuryStar, the app doesn t rank the jurors for you based on their scores it only provides a breakdown of the positive, negative, and neutral reactions you receive from them. The ability to export information is also limited. When you press the Export button, the basic case information, names of jury panelists, and demographic information are exported. Another jury selection app that appeared just before this book was published is JuryPad, which upon its initial release has most of the same tools as the other apps, and with a nice user interface. In addition to the basic data entry fields (race, marital/education status, employer, etc.), there are other fields for military experience, civil or criminal trial experience, knowledge of the case or parties, and information on the panelist s family members. You can view the potential jurors as 6 12

157 Chapter 6 ipad for Litigators a list or in a seating chart, and add notes or other information from either view. There are currently no templates for voir dire questions, but the developers plan to add this feature in future releases. There is also no current method for ranking jurors. You can share the list of jurors via spreadsheet or text file, or with other JuryPad users. This app looks like a worthy option for jury selection, but it still needs some work before it approaches the feature set of the other tools mentioned in this Lesson. If you have a paralegal or assistant who is able to observe the jury, and if a fulltime jury consultant is out of your budget range, you might want to check out JuryTracker. It s designed to record the reactions of your jury once they are seated. Just enter your basic case information, and the names of your jurors. When you re ready to start, press the timer for the side that s asking the questions. As jurors begin to react to the testimony, press on a specific juror to enter that reaction. You have a number of choices. You can note whether a juror is happy, smiling, neutral, crying, angry, nodding or shaking head, taking notes, being attentive, making eye contact, watching the time, fidgeting, daydreaming, or even sleeping. You can predict whether the juror will side with the plaintiff or defendant, characterize them as a leader or follower, and indicate whether the individual is a key juror. All of these observations will be stored, and you can later package them into reports by juror, the party presenting, a specific reaction, or a full chronological report. You can save these reports as text files, spreadsheets, PDFs, or in an . I think JuryTracker is a fun, interesting app for lawyers or their assistants who have a lot of time to do this during a trial. One other caution is that, as of the time of this writing, the app had not been updated in nearly a year, which may indicate the developer s lack of interest in maintaining it. As you can see, jury selection apps can be very interesting and useful, but only if you have the time to enter all the relevant information. If not, you may find that a legal pad is still your best friend during voir dire. ijuror ($9.99) ijuror is an app developed to assist with jury selection. Features include: Tap the seats to add juror information Pattern tracking the jury information to any address Configurable for seating arrangements of up to 60 jurors Add notes as the trial goes along Name view provides quick access to name and notes Drag and drop to choose jurors Drag and drop to choose alternates Drag and drop to dismiss jurors 6 13

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159 Chapter 6 ipad for Litigators PRESENTING FROM THE IPAD Presenting a PowerPoint from your ipad can result in a more natural and interactive presentation, allowing you walk around, switch between applications, write notes or do white-boarding, and go back to your core presentation. Getting your PowerPoint on your ipad Our three choice apps to have in your toolbox show PowerPoint presentations on the ipad are PowerPoint (available only since March 28, 2014), Keynote and SlideShark. There are pros and cons to all three. PowerPoint is probably the best choice, but since it is so new, it still lacks a couple key features. It converts the best and offers a huge font set and quite a few features. Keynote is Apple's answer to PowerPoint. It has been around a long time and is a must-have app. Once your PowerPoint is converted to Keynote, Keynote is going to give you the ability to (1) make edits and also (2) show the presentation. The downside is that it the conversion isn't always perfect. I'd give it a B. This requires that you make some aesthetic tweaks and fixes to the presentation. It also requires that you re-insert video and audio into the Keynote presentation (they are lost in the conversion). SlideShark ( free) is an app that will convert the PowerPoint to a SlideShark format and then allow you to play/show the slides through the SlideShark 6 15

160 Chapter 6 ipad for Litigators app. It converts the PowerPoint very well, including video and audio, and preserving fonts and animations extremely well. I'd give it an B+. SlideShark also has a fantastic presenter view that allows you to easily see your notes and upcoming slides very similar to PowerPoint's presenter view. The latest version allows you to annotate slides during the presentation. The downside to SlideShark is that you cannot make edits to the slide show from the ipad. You can hide slides or re-arrange them, but you can t make edits beyond that. You have to make changes in PowerPoint and then re-convert/upload the PowerPoint. With large presentations and low bandwidth, this can take minutes. PowerPoint Instructions The easiest way to get a PowerPoint on to the ipad in the PowerPoint app is to import it through OneDrive, Dropbox, . In whichever method, when you tap on the PowerPoint file, select Open In and select PowerPoint. Once in PowerPoint, the file will be stored locally on your ipad until you delete it, and the only cloud storage location where you can save is OneDrive. Keynote Instructions The easiest way to convert a PowerPoint to Keynote and load it in your ipad is through Dropbox or . In either case, when you tap on the PowerPoint file, select Open In and select Keynote. Once in Keynote, the file will be stored locally on your ipad until you delete it. SlideShark Instructions Go to and set up a free account. This will also set up a needed cloud storage area for your presentation, which you can link to Dropbox, Box, Google 6 16

161 Chapter 6 ipad for Litigators Drive or Syncplicity. Once the account is created, login and upload your finished PowerPoint. During the upload process, SlideShark will convert your PowerPoint and store it in your private SlideShark storage area. Next, from your ipad, go to the App Store and download / install the SlideShark app. Launch the app and enter your login credentials. Once logged in, you will have the ability to download from the SlideShark cloud all your converted presentations. Select the presentation and hit the green play button. 6 17

162 Chapter 6 ipad for Litigators Showing Presentations using Apple TV We are going to address the Apple TV wireless setup. This wireless setup is particularly helpful if you are doing courtroom presentations using PowerPoint, Keynote, or courtroomspecific apps like TrialPad ( The first thing to note is Apple TV is not a television or monitor. It is a device (small box) that plugs into your HD projector or HD large monitor/tv. It receives the wireless video signal from your ipad and delivers images and video to your projector or large monitor. The Apple TV device looks like this: What You Need A high-definition TV (HDTV) or projector that can display 720p or 1080p video Apple TV (2nd or higher generation) $99 at any Apple Store An HDMI cable $10-$30 Sometimes you will need an HDMI to VGA Converter if you do not have a projector with an HDMI input, or if the courtroom only has VGA inputs at counsel table. This is a lower quality display than HDMI, but it works fine and is sometimes essential. An example: the Kanex ATV Pro, which runs $49.95 Wireless Router (small or somewhat portable). I recommend that you do NOT rely on public WiFi in the courtroom or elsewhere. Connectivity is too spotty. I bring my own wireless router. Here are just 2 of dozens that would work fine: o Apple AirPort Extreme n Dual-Band Wi-Fi Wireless Router, Model A1354 ($99) o Linksys Dual N Band Wireless Router - WRT610N n ($50) Setup 1. Setup Wireless Network: Set up your wireless network with encryption. You may want to have your IT folks do this to save time. If you are adventurous, it isn't difficult. Here are two excellent guides from PCWorld that can help:

163 Chapter 6 ipad for Litigators 2. Write down your network name (SSID) and password and keep them in a safe place. I write mine on a label and affix it to the inside of my router box or Apple TV box for convenience. 2. Connect Apple TV to your Television or Projector: Unbox your AppleTV, plug in the power cable, and plug in the Apple TV device via the HDMI cable into your HD television or projector. Turn on your television or projector and switch the input to the HDMI source where the Apple TV is connected. 3. Setup AirPlay Password: Using the Apple TV remote control, under Settings > AirPlay, select On and add a password. Note the password in a safe location. I also write it on a label and affix it to the inside bottom of the AppleTV box. 4. Connect AppleTV to Wireless Network: Under Settings > General > Network, select Configure WiFi and select your wireless network from the list and enter your network password. It may take a couple minutes to negotiate the connection. 5. Turn Off Apple TV Screen Saver: Under Settings > Screen Saver, select Never. This will prevent Apple TV from showing wild animals in the middle of your presentation in the event that it sits idle for more than 5 minutes! 6. Connect your ipad to Apple TV: Swipe up from the bottom of the ipad screen top expose the control center and you will see an additional button/icon for AirPlay. Tap on the AirPlay button, select your Apple TV and turn Mirroring to the On position. In a few seconds, you should see your ipad displayed on your large screen. Backup Plan - Wired Setup: Always have a backup plan! In the event something goes wrong, bring your ipad to VGA adapter or ipad to HDMI adapter so you can plug your ipad directly into your television or projector. I bring both adapters out of paranoia. Both cost $15 - $20 each and can be purchased at any Apple store or online. 6 19

164 Chapter 6 ipad for Litigators Additional Resources Official Apple TV Setup Guide Kanex ATV Pro HDMI to VGA Adapter for $

165 Chapter 6 ipad for Litigators EVIDENCE PRESENTATION Trial Pad ($129.99) TrialPad is a legal document/exhibit management and presentation tool developed for the legal profession for use in the courtroom. Despite its intended use in the courtroom, TrialPad is being used for client presentations, and many law professors use it to display documents in lectured. Using TrialPad you can organize, manage, annotate, and store your documents and video while leveraging the portability of your ipad. TrialPad was designed by professional trial consultants who have helped lawyers present at trial. Unlike PDF readers, it lets you create separate case folders, organize and sort important documents, and dynamically annotate and present them via its flexible output options. The key differentiator of TrialPad over programs like PowerPoint or Keynote is the presenter s ability to pull documents, images and video on the fly in any order jump around and then zoom, magnify or annotate on the fly. It is not really a competitor to PowerPoint or Keynote because it was designed to handle different situations. Keynote is designed for more rehearsed linear situations (opening and closing), where TrialPad is design for more spontaneous situations like witness examination. It cannot store a fraction of the data as Sanction or Trial Director, but it works absolutely fine for hearings and small cases. Features include: Organize and present evidence electronically Import process via Dropbox, , or itunes No internet connection needed once files are loaded Present wirelessly with AppleTV (requires ipad 2) Highlight, annotate, redact, and zoom in on your documents Make multiple callouts from documents or depositions 6 21

166 Chapter 6 ipad for Litigators View documents side-by-side, comparing pages The most intuitive, clean, and easy to use interface of any legal app Edit video clips, or take snapshots of frames of surveillance video Create Key Docs with saved annotations, then print or them with the annotations Have your expert mark up an exhibit and save it as a Key Doc for closing Use the whiteboard tool to draw freehand Create separate case and witness folders File formats supported: Adobe Acrobat PDF, JPG, PNG, TIF, Multi-Page TIF, and TXT. [Also imports DOC, DOCX, XLS, XLSX, PPT, PPTX, Keynote, Pages, and Numbers, but PLEASE NOTE, for these files our best practices recommendation is to convert these files to Adobe Acrobat to maintain the formatting and look of the original document.] Video formats supported: All formats supported by ipad, such as.m4v,.mp4 and.mov Honorable Mentions Exhibit View Exhibit A 6 22

167 Chapter 6 ipad for Litigators LEGAL RESEARCH While outside the scope of this presentation, we believe it is important to provide legal research apps for your consideration: WestlawNext LexisAdvance HD Fastcase CaseMaker LawBox CFR Live Lite FedCtRecords Proview My Legal Projects 6 23

168 Chapter 6 ipad for Litigators COURTROOM CHATTING BT Chat HD (FREE) If you have ever had the need to discretely pass a note in the courtroom, you will completely understand the need for this app. With BT Chat HD, you can chat with other ipad users via Bluetooth or Wifi (WiFi better if sitting at a distance). 6 24

169 Chapter 6 ipad for Litigators OTHER MUST-HAVE IPAD APPS So Many Apps Which One is Best? There are many incredible apps for the ipad. In fact, there are so many that you will probably be overwhelmed about which one to select, especially if you are new to the ipad. I have my top legal picks listed below, and I also have some honorable mentions. Some of my honorable mentions ultimately may end up being your top pick. Don t let this overwhelm you. With so many fantastic apps out there, it is hard to go wrong. In deciding which app is best for you, follow these guiding principles: There are probably a dozen apps that accomplish the same thing. Review legal app blogs, consumer reviews and ask trusted people about what they recommend. Your workplace may prefer one app over another. Consistency/uniformity at the office typically is a good thing. If your co-workers or friends use the app, they can provide you with a support network to better learn and use the app. If a new app is released from a competing software company, don t be too quick to switch! Your app will probably catch up pretty quickly and may have features the other app doesn t have yet either. Remember your time invested in the app you already own. The apps are so cheap, if you are curious, just buy it. Most apps are less than $10. The most expensive app cited in these materials is $

170 Chapter 6 ipad for Litigators 1. DropBox (FREE) ( If you have an ipad, DropBox is almost mandatory. Setting aside debates about security, Dropbox has become the gold standard for storing files and getting them to the ipad. Most software developers are building their apps to integrate with Dropbox because it has become so widely used. Dropbox sets up a local folder on your computer that allows you to create any subfolder structure. These subfolders synchronize into the cloud and can be shared out to other people (clients, co-counsel, co-workers, etc.), if desired. The ipad can also connect to your Dropbox account so it can see and access everything that you can see on your PC. If you can create a folder, copy/paste, and drag and drop, you can use DropBox. 6 26

171 Chapter 6 ipad for Litigators 2. Dictate & Connect ($14.99) Dictamus is a dictation application for your iphone, ipod Touch (2nd gen) or ipadrecord. Like a traditional digital recorder, one can rewind, overwrite and insert anywhere. Download recordings, send as s, upload to Dropbox, MobileMe, FTP or WebDAV. Demo video:

172 Chapter 6 ipad for Litigators 3. GoodReader ($4.99) ( Since documents are the lifeblood of the legal profession, it makes sense that one of the best uses of the ipad in a law practice is to read and annotate documents. GoodReader is best described as a universal document viewer although it arguably works best with the PDF file format. It provides excellent annotation tools for PDF files, including the ability to highlight text, insert text boxes, post sticky notes comments, compose freehand drawings, lines, arrows, rectangles, etc. These tools are extremely useful when you re reading a court opinion or law review article. GoodReader also has a robust file manager and has the ability to sync directly with your accounts from Dropbox, Box.net, Google Docs, and many other similar services. 6 28

173 Chapter 6 ipad for Litigators 4. Word for ipad ($99/yr with Office 365) Microsoft released their Word ipad app on March 28, 2014, nearly three and a half years after the ipad hit the market. In the interim, about a dozen popular Word editing apps made their way to the ipad, providing a work-around for people those wanting to edit documents from their mobile device. Many of these solutions were less-than-ideal and a bit clunky. However, many were starting to become pretty solid apps with a mature feature set. Microsoft s first release of this app for the ipad is pretty good. However, we are not terribly excited that you need to purchase a subscription in order to use it, and it lacks Dropbox integration. At least for now, your only cloud options are Microsoft OneDrive and SharePoint. 6 29

174 Chapter 6 ipad for Litigators Word s app provides some pretty solid features, the most promising being the ability to track changes and do redlining. Prior to Microsoft releasing their Word app, Documents To Go Premium ($16.99) from DataViz ( was the clear choice. For some, it still will be the clear choice because consumers may resist having to purchase a Microsoft Office 365 subscription. No app on the ipad is going to provide the full functionality that you find on a full desktop version of Microsoft Word. You will find some basic formatting functionality on the ipad, but you won t be creating a Table of Authorities, adding columns, applying styles, or inserting footnotes. But for the majority of text edits, Documents To Go is still one of the best apps you can find for editing Microsoft Word documents, whether you pull them from an message or open them from Dropbox. 6 30

175 Chapter 6 ipad for Litigators Other options for editing Microsoft Word documents on the ipad include Office 2 HD by Byte 2 ($7.99) and Pages from Apple ($9.99). 5. Notability ($4.99) ( Very few note-taking apps perform all three functions of handwriting, typing and audio. I have found that Notability provides a great writing experience, with the ability to change the thickness of the point, add lines, width of lines, gridlines all important to simulate an experience similar to writing on a piece of paper. You can use your finger to write notes on the ipad, but I would highly recommend that you invest in a stylus so that the writing experience is as similar as possible to the experience of writing on paper with a pen. 6 31

176 Chapter 6 ipad for Litigators I find the ability to record your meeting, lecture, etc. to be immensely helpful in certain situations. I absolutely love this feature, and quite frankly, I do not want to have a separate notes program to do this (like Auditorium), a separate typing program and a separate audio recorder. I want an all-in-one. Notability provides me with all three functions. Screenshot from Notability 6 32

177 Chapter 6 ipad for Litigators Another Great Note-taking App Noteshelf ($4.99)(fluidtouch.biz) For pure handwritten note-taking, Noteshelf is probably the highest-ranking and most popular note-taking app. Penultimate is another app that receives pretty high scores. These apps do not allow you to type or record audio. 6 33

178 Chapter 6 ipad for Litigators 6. Keynote for ios ($9.99) ( Keynote for the ipad or Mac is the equivalent of PowerPoint in the PC world. Keynote truly is an excellent presentation tool, and Apple has ported the software to the ipad ios. Keynote on the ipad can certainly be used to give presentations on a large screen with a projector. But many lawyers use Keynote as a way to share a set of images and information with a small group, such as at a client meeting. Keynote is a beautiful app on the ipad, and you can easily manipulate the slides and images. 6 34

179 Chapter 6 ipad for Litigators 7. PDF Expert ($9.99) ( Many attorneys use PDF Expert because (1) clients can sign documents and then you can them back to the office, or (2) form-fillable PDFs can now be mobile and filled out on the go. Similar to GoodReader, PDF Expert will let you read and annotate PDF files. But PDF Expert offers a few additional features that are hard to find in other apps and that appeal to legal professionals. PDF Expert supports PDF forms and allows you to fill-in PDF forms via text fields, check boxes, radio buttons and other form elements. You can create a PDF form on your computer and transfer it over to your ipad when you need to complete the form away from the office. 6 35

180 Chapter 6 ipad for Litigators 8. LogMeIn (FREE) ( As much as the ipad can do, there will inevitably be a time when you need to work on your office computer, or you need to access a file that is only located on your home computer. To access a computer from your ipad, you ll need to install the LogMeIn software client on the computer you want to access, and that computer will need to be left running. When you need to access the computer from the ipad, you ll simply launch the LogMeIn Ignition app and put in your credentials. Controlling and manipulating your computer from the ipad can be a little tricky due the small(er) size of the ipad s screen. But when you need access to your office computer from the road, the LogMeIn Ignition app can be your saving grace. If you need to advanced features like access to multiple computers, HD Video, file management and cloud storage, you can either pay the one-time $99.99 or pay $39,99 per year. If you don t need those features, and just need one computer to one computer access, then you can use the free LogMeIn app. 9. Find My ipad/find My iphone (FREE) ( When it was first introduced, the Find My iphone service was part of the MobileMe service offering from Apple that cost $99 per year. Fortunately, Apple recently offered the Find My iphone service for free, which meant that anyone was able to take advantage of this free security option. Today, the Find My iphone / Find My ipad service is part of icloud, which is also free. Because there is so much personal information and confidential client information that is stored on our ios devices today, we urge that every legal professional with an ipad sign up for a free icloud account and enable the Find My ipad service. When you misplace or lose your ipad, you are able to log on to any computer that is connected to the Internet and geographically locate the ipad. It also gives you the capability to remotely erase all the data from your ipad. Since this service is free, and the risk of losing so much information on an ipad is so high, many leading experts like Brett Burney argue that setting should be mandatory for any legal professional See Free Security for Your iphone & ipad That Should Be Mandatory at

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182 Chapter 6 ipad for Litigators 10. itimekeep ( itimekeep makes the number 10 pick because lawyers constantly struggle with entering time, and itimekeep provides two critical qualities that make it a great tool for lawyers. First, it offers the most comprehensive list of time/billing/accounting and practice management systems with which it integrates. This means when lawyers select the client/matter in the time entry field in itimekeep, it provides the client/matter list directly from the firm's practice management or time/billing/accounting system. It will also link to all billing codes and provides spell-checking, which is good for mobile entry because people commit spelling errors easily & more frequently on iphones. I believe this is what sets it apart from the competition. Second, the time entry is easy as pie and extremely convenient. Bellefield (the maker) can quote the monthly or annual fee, and while some may believe that anything more than free is too expensive, the solution closes huge gaps in missing time entries and more than pays for itself in a very short period of time. Others to consider: TimeMaster ($9.99) This App claims to be able to track your billing on a clientby-client basis (touch entry) and then export to QuickBooks or wirelessly sync between two or more devices (i.e. iphone and ipad). OfficeTime ($7.99) Touted in this year s 60 Apps session at ABA TechShow, this App works on PC, MAC, iphone, ipad, and itouch. Updated 5/10/12, it claims to offer a guaranteed refund if it doesn t pay for itself in increased productivity recording. Works offline with no need for 3G or Wi-Fi connection, it exports to spreadsheet software Numbers or Excel. 6 38