Rethinking the evidence presentation paradigm
As eTrials begin to gain traction, the legal profession may have to change its approach to presenting evidence, writes Andrew Skim.
THERE ARE a number of significant differences between the conduct of eTrials in North America and Australia. These differences are the result of a range of factors, including statutory, procedural and cultural influences. One fundamental difference is the way in which eTrial service provision itself is facilitated, and this has a strong relationship with, and is directly influenced by, the tactics of evidence presentation.
Australian litigators will be aware that, in Australia, the eTrial service is typically managed by one legal technology consultancy, supporting the management of evidence for all parties and the court. While different levels of service may be provided to each of the parties, the consultancy is engaged for the mutual benefit of all participants. This extends to the presentation of evidence: the consultancy will have a general responsibility for evidence display but is typically not engaged to provide any tactical service.
In contrast, in North America a consultant is contracted to work specifically with one law firm, effectively embedding themselves within the trial team to support the team’s in-court strategy and to produce and manage the visual presentation of evidence, including the production and display of persuasive trial graphics.
Having returned to Australia after 10 years in North America and having since worked on several Australian eTrials, the difference in approach is striking. For example, in the high-profile Lehman Brothers case, my role as a consultant supporting Barclays’ legal team centred on the use of demonstrative graphics, such as timelines, to provide Judge James Peck with an account of the critical events surrounding the 2008 collapse of Lehman Brothers and sale to Barclays.
While North American technology driven graphical evidence presentation was originally developed to service jury trials for the purpose of making complex issues easier to understand, North American litigators and judges have now embraced the practice. It has become a standard means of presentation to expedite process and enhance understanding. I would argue that Australian litigators and judges could also benefit from this approach. In fact, I believe that we can extend upon the North American evidence presentation experience for the reasons that follow.
In 1998, The Honourable Justice Tim Smith of the Supreme Court of Victoria noted that the use of technology in the Estate Mortgage case delivered a better “quality of justice” by increasing the capacity to better examine the full range of evidence. These comments were made almost 20 years ago when the available technology was limited to the presentation of a uniform view of public evidence to every hearing-room participant.
A recent evolutionary step in evidence presentation software, developed here in Australia, extends the traditional uniform model to present a personalised version of the evidence to each party, complete with the mark-up and commentary each party needs to link that evidence to their client’s case.
This advance, combined with the adoption of technology-driven graphical evidence presentation, provides the opportunity for Australian litigators to set new benchmarks in enhancing the quality of justice noted by Justice Smith. I would urge litigators in Australia to re-think the evidence presentation paradigm and consider how this might benefit their clients.
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