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1 JOSEPH COTCHETT: Thank you. Let me come down
2 here if I may.
3 When Winton called me and asked me if I would
4 do this presentation, I said yes, on one condition:
5 That I didn't follow Vance.
6 You saw this morning truly one of the great
7 trial lawyers. And the reason I say that is not because
8 Vance is sitting here, it's because when you talk about
9 pioneering, technology in the courtroom, Vance really
10 started long before he went with West, took over West,
11 if you will. Vance was doing this many, many years ago.
12 As a matter of fact, many of the ideas that I got in
13 terms of what you can do in a courtroom, I stole from
14 Vance in the sense that he truly was out there doing
15 them.
16 He has all the buzz words, he knows what is
17 going on. He is the only person I know that can look at
18 a bar code and tell you what it means. Truly, he has an
19 awesome, awesome ability to read those bar codes.
20 I don't understand any of this, I do truly do
21 not, but one thing I think I do understand is that I
22 always found I was a success if I surrounded myself by
23 good people, as Tom Elke knows, and I always found that
24 if I could figure out what is good in terms of
25 communication and figure out to find someone how to do
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1 it, that is to say show me how to do it, perhaps I could
2 communicate in the courtroom.
3 But the brochure says lessons of the Keating
4 case. Yes, I'm going to talk about that, but first I
5 want to tell you about who is here, because I was
6 looking at the roster and I'm not sure that everybody
7 recognizes who it is in the audience that is listening
8 to these words and I think it's instrumental to know who
9 is, in fact, interested in technology in the courtroom.
10 I was fascinated in going over this and seeing
11 that there are a number of presiding judges here, a lot
12 of interested judges. We have federal judges, state
13 court judges, a lot of technology people and more
14 important, a lot of court administrators or court
15 personnel who are interested in the development of
16 technology.
17 And I really want to hone in that because --
18 and of course we have the technology people who want to
19 talk to the judges and the court people as to why they
20 should use their technology and/or learn what Vance is
21 doing or otherwise.
22 But it is truly a field that is emerging so
23 fast, so critically, it is changing the way we are
24 trying cases on almost a day-to-day basis. As a matter
25 of fact, it is changing on an hour-to-hour basis based
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1 upon what people are now finding and running into that
2 courtroom and saying, Oh my God, look at this that I
3 found -- usually a little E-mail that I'll tell you
4 about later.
5 What are the lessons of the Keating case? Let
6 me talk to you about the lessons of the Keating case.
7 Real quickly, we have here Mary Ann Tearney who did --
8 she was the court reporter who did all of our work. And
9 when we say court reporting, we're not talking about
10 someone who in the past simply took down the written
11 word. We did some very creative -- this is going back
12 four, five, six years now -- we did some very creative
13 things with court reporting that she was right on the
14 forefront of in terms of technology.
15 For example, whatever they call that, where
16 you can go in and get the key words and punch them
17 out -- see, I don't know even the buzz words to tell
18 you, but I know you can do it. So I would simply say,
19 get me every time this phrase was used, and what have
20 you, and bing, bam, boom, it comes up.
21 But more important, you couldn't talk about,
22 and I'm going to come to that later, you couldn't talk
23 about the Keating case without talking about Judge
24 Richard Bilby, a federal judge. Because, you see, I'm
25 going to tell you in a moment, all of this technology in
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1 the courtroom is nice. Except for one thing. You
2 better have a judiciary that will accept it. You better
3 have a judge that understands it can work in his or her
4 courtroom. You better have a judge who understands the
5 budgetary restrictions and/or requirements for it. You
6 better have a judge who is not one of the old boys club
7 who will accept this new technology.
8 And if there is any battle we're fighting, it
9 is not gender proof, trust me. Tom Elke knows of a very
10 fine woman judge in San Francisco who if you come into
11 her courtroom and want to use an overhead projector, she
12 thinks you're a communist.
13 Bottom line is, you want to change what is
14 rooted in America, right? Of course, we don't want to
15 do that, what we want to do is communicate better.
16 So when we talk about the Keating case, what
17 were the three lessons of the Keating case? I wrote
18 them down just so I'd have them in mind. It's simple is
19 better than complex. Remember that, simple is better
20 than complex. Now, does all this look complex? You bet
21 it does. But when you look at it in the big picture,
22 what it does is it simplifies for these people who sit
23 over here and are called jurors. This is not complex,
24 this makes it easy for them. It makes it easy for them
25 to accept the facts.
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1 And my sole role, whether I'm suing a
2 defendant, turns on the people that sit in this box.
3 I've got to communicate with them in a way that they
4 understand it.
5 I've got to keep the judge happy in the sense
6 that we're going to run an efficient courtroom. I see
7 the presiding judge of Los Angeles Superior Court here.
8 Let me tell you the restraints he's under. He'll tell
9 you they're great, sure. But the restraints he's under,
10 he has to fire out hundreds, if not thousands, of cases
11 a year. He has to have an efficient judge. Yes, I
12 found if you want to get a motion passed in front of any
13 L.A. County judge, you just use these magic words: If
14 you grant this motion, it will cut one week out of the
15 trial. Motion granted. Judge, if you grant this
16 motion, I can save calling 15 witnesses. What else did
17 you want to say, Counsel?
18 There is nothing else you have to say. That's
19 what happens today.
20 Now, if you come in and say: Judge, what I
21 want to do is I would like two days before we start the
22 trial to set up all my equipment in your courtroom, that
23 judge is going to look at you like a deer caught in the
24 headlights of life and wonder what you're talking about
25 because he or she is going to ask you: I'm sorry, I
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1 don't understand what that means.
2 Well, it means, judge, you'll have to leave
3 your courtroom for two days while we set up all the
4 equipment. Can you picture this, can you picture this
5 happening in Los Angeles? There will be no equipment.
6 It just won't happen.
7 So simple is better than complex. And if you
8 can make it simple with equipment, it will work, and
9 that's what we did in the Keating case.
10 You must, rule two, if you are trying a case
11 today and you want to communicate with that jury, you
12 must use audio visual.
13 Vance told you a story about someone that had
14 been interviewed. Of course, that they saw that on TV.
15 What do we know? We know that the average American
16 spends either four and a half or six hours a day in
17 front of a television set.
18 If a juror looks at a monitor screen, and we
19 try not -- there is no case we try where we don't set up
20 some monitors, and I'll come back to that in a moment,
21 the jurors will believe that, if it comes over a monitor
22 screen right here rather than from the stand. Why?
23 They can see it. Don't ask me why.
24 When you debrief jurors after a trial, they
25 will tell you exactly what Vance said. They saw it on
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1 television, so it must be true.
2 If somebody comes in with computer animation,
3 I'll talk about that in a moment, you better make sure
4 you have computer animation or they're going to believe
5 theirs. I mean, it's really as simple as all that.
6 Three, what is the lesson of the Keating
7 trial? The third lesson? Be efficient and important
8 use of depositions. And by depositions I mean not what
9 we used to take in the old days, sitting down and taking
10 down and recording what a witness said. But how can the
11 judge, how can the judge effectively use depositions in
12 the courtroom that allow a jury to see testimony, see
13 testimony of a witness who here we're in Arizona, we now
14 want to put on a doctor from New York, how can the court
15 figure out a way that this jury can see that doctor in
16 New York?
17 And I don't care whether it's
18 teleconferencing, which is a new thing coming, by the
19 way, teleconferencing right in the courtroom, where what
20 you do is you say: At 2:00 on Thursday, ladies and
21 gentlemen, we will have a teleconference testimony. And
22 you just simply bring a screen into your courtroom and
23 bingo, there's a doctor in New York who is going to
24 testify and he is on a telephone, believe it or not, a
25 little microphone hook-up like this, and there is direct
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1 examination and cross-examination.
2 And that doctor doesn't have to be flown to
3 Tucson, that expert doesn't have to be flown across the
4 country. They can testify in 10 minutes.
5 And, let me ask you this, why does it have to
6 be limited to doctors, experts, what have you? Why
7 couldn't it be any witness that you have in New York or
8 Boston? You have got a 15 question that you want to ask
9 of this witness. Is it necessary that we bring him all
10 the way from New York, Boston, or wherever that person
11 may live, when we can put him on the screen? Not at
12 all.
13 Teleconferencing is going to be in every
14 courthouse imaginable in the following year or so. It's
15 just going to be there, it's going to be accessible, and
16 if it -- somebody is shaking their head because they've
17 said: Never in my courthouse, we don't have the funds
18 to do it. Watch, I'm going to tell you how you'll have
19 the funds in a moment.
20 So those are the three lessons. If I could
21 pick one of the three, one of the three as the one that
22 leaps out at you, simple is better than complex. And
23 this, folks, is simple.
24 I'm going to work through each of them, but I
25 want to talk about the judge just for a moment. Let's
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1 talk about Charlie Keating's case.
2 We had approximately 90 defendants in that
3 case, 80 to 90 defendants. This would scare the do-do
4 out of most people. It did out of me. Do-do is a word
5 that one of the great Americans in our country has used
6 recently, in the past, now acceptable.
7 You understand that if you have 90 defendants
8 in a case, you're going to have to depose each and every
9 one of them and their employees. So you're maybe
10 talking about four, five, 600 depositions. When you
11 talk about documents, you haven't seen documents until
12 you're talking not thousands, but millions of documents.
13 Our job was to figure out how we assemble these, bring
14 them to a courthouse where a judge sat and not throw the
15 fear of God into the judge.
16 Because that judge has a docket, and the P.J.
17 calls him every day at 5:00 or 5:30 and says: Are you
18 done with that case yet, can I send you another one?
19 And God forbid, he or she should say: No, I've got
20 another six months. That can't happen. That just can't
21 happen.
22 So the fear, the fear factor when you file
23 that complaint and name 90 defendants or more is
24 terrifying to a judge who doesn't understand how it
25 might be done simply.
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1 So, you had complex issues, you had large
2 documents, you had the number of defendants, and God
3 smiled down on us when the judicial panel on
4 multi-district litigation sent that case to Richard
5 Bilby.
6 Thank God that the judicial panel is sending
7 those cases, trying to pick judges like Judge Rubin and
8 others who get these complex cases who are not in awe of
9 these silly little machines and how you can work them.
10 So what they're doing is they're trying to select judges
11 who can quickly and efficiently handle these large,
12 complex cases.
13 Now, put aside the large complex case. Let's
14 talk about the case that you and I deal with every day.
15 We don't handle Charlie Keating cases every day. We
16 handle simple little cases for the person up the street,
17 the person downtown or what have you. This is what
18 comes into your courthouse. Charlie Keating doesn't
19 come in every day, thank God.
20 How do you handle, how do you utilize the
21 technology on the smaller cases?
22 The first thing you have to do is you have to
23 educate the judges.
24 And I just want to belabor that if I can. If
25 you have judges in your system that are terrified of
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1 this, you need to do something. You need appoint a
2 court technology officer. How do you do that? That's
3 another budgetary item, isn't it? Another line item.
4 Oh, God, I can't even get a clerk for my judges, how do
5 I get a technology officer?
6 You would be shocked at what's available out
7 there in terms of companies. When the companies heard
8 what we wanted to do in Keating, we had offers beyond
9 belief to come to our office and set up equipment.
10 Let me tell you something shocking. There was
11 $2 million worth of equipment set up in Judge Bilby's
12 courtroom. Do you think for a moment you and I as
13 taxpayers paid for that? Wrong. It was all paid for by
14 the parties.
15 Where is that equipment today? This may come
16 as a shock to you, but it's in Judge Richard Bilby's
17 courtroom. Okay? Is there anything wrong with that?
18 Absolutely not. The parties decided to leave it there,
19 and it's being used, it's utilized. He has big screens,
20 he has everything. Does he use them every day? I don't
21 think so, but he enjoys using them because he's a
22 techno-nut in terms of: Hey, can we put that up on the
23 screen.
24 Let me tell you this. There are companies
25 that will come to your little courthouse and they will
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1 show you instantly how you can put a video screen up in
2 the corner of every courtroom and they will do it almost
3 for nothing, and the reason is very simple, because then
4 they want to go to the litigants or the lawyers and sell
5 the companion products that go with that.
6 Is there anything wrong with that? I'll let
7 you decide that.
8 And I don't want to get into budgetary issues
9 this morning, but I'm telling you, my friends, that if
10 you can educate the judges or the judiciary, that this
11 is not as expensive as everybody fears, it is a doable
12 project.
13 And wouldn't it be wonderful if you had in
14 every courtroom already set up at the end of every
15 juror's bench, a monitor screen, a big 40-inch screen so
16 that a lawyer or the litigants would never have to bring
17 that in, it's always there. They just bring in their
18 little tapes and what they do is they go over to the
19 corner and they say, when the judge says call your next
20 witness, Mr. Cotchett, say: Yes, I now call Mr. Jones.
21 Would you please explain to the jury, your Honor, that
22 I'm calling Mr. Jones as an adverse witness and he will
23 be shown on video tape.
24 And I walk over to a little machine, the jury
25 turns in their chair, looks at the monitor, I slip in a
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1 machine and press a button. Now the witness is
2 testifying on the screen.
3 Cost to the courthouse? Absolutely nothing.
4 That monitor is there. It is put in by lawyers that
5 want those monitors there. Is that a big expense? It's
6 a pennies expense.
7 How did the state of Alaska put in much of
8 their technology equipment? The Alaska State Bar
9 contributed 95 percent of all dollars and cents, as I'm
10 told, to assist many years ago in putting that
11 technology into their courtroom. They were the first
12 people to have, because of their remote courthouses, the
13 automatic taping of testimony that could go directly to
14 their Court of Appeals on a tape. An extraordinary
15 situation. Think of that.
16 So what is it? It's the education of the
17 judge, it's the education of the judiciary, I should
18 say, that makes it available to you.
19 Now, you can run back, talk to your presiding
20 judge, and give us a crazy idea, maybe we can go out and
21 talk to Apple and maybe they'll put monitors, or maybe
22 they'll call Vance, and he'll do A, B, C and D, that
23 would get him in more trouble.
24 But in theory, in theory, all of these
25 innovations -- not in theory, practicality, friends all
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1 of the innovations to make trying cases simpler are
2 available right now to people to put them into the
3 courtrooms if they believe in the marketplace they can
4 take advantage of that, and there is nothing wrong with
5 that, take advantage of that on the other side of the
6 coin.
7 The Keating case was tried in what they then
8 called a high tech scenario. It is not today a high
9 tech scenario. When I gave that opening statement that
10 went for approximately five hours, four years ago, I
11 guess, now, three years ago, whatever it was -- three
12 years ago, what in the world did I do for five hours?
13 Well, I see a reporter in the back who sat
14 through that opening statement. What did I do? What I
15 did was, I showed Mr. Keating giving an interview on 60
16 Minutes. Is that admissible? I don't want to give an
17 evidence course because I see tomorrow you have some
18 instructions on how this all gets in.
19 Of course it's admissible. It's a statement
20 by Mr. Keating by giving an interview to 60 Minutes.
21 I then, of course, took many depositions all
22 of whom -- many of whom took the Fifth Amendment. In
23 federal court, can the jury see that? Of course they
24 can see that, and they should have a right to see
25 someone exercising their rights under the Constitution,
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1 right? So they can do that in federal court.
2 So I said: Now, ladies and gentlemen, let me
3 talk about defendant ABC Company. I would like to show
4 you the testimony of the president from ABC Company.
5 And up on a big screen as large as that, you would see a
6 man who would say: Can you state your name? The person
7 would say: I hereby exercise my rights under the Fifth
8 Amendment of the United States Constitution.
9 Was that graphic? I watched jurors after
10 about three hours shaking their heads. They couldn't
11 understand how so many people, accountants and lawyers
12 could exercise their rights under the Fifth Amendment.
13 Is that perfectly valid to do? You bet it's perfectly
14 valid to do.
15 Am I right in representing 23,000 little
16 elderly people, many of whom were blind and in
17 wheelchairs putting that up there? You bet I am. Would
18 I do it today? You bet I would, because that's what
19 justice is all about.
20 And you heard from Vance that what is going to
21 save our society is justice. And when I'm representing
22 somebody in a wheelchair, you bet I'm going to show the
23 person I'm suing taking the Fifth.
24 Now, why was that graphic? It was graphic
25 because I easily could have picked up a deposition and
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1 read the same thing.
2 How graphic is that after a while versus
3 looking at this screen here and seeing someone. And
4 it's not just the advocacy of it, you see. It is the
5 ability to really give the trier of fact a better
6 picture. That's really what you're dealing with.
7 You're dealing with the ability to of the
8 trier of fact to see, touch, feel, smell real people.
9 They can do that by looking at a screen, the written
10 word, unfortunately. I don't want to say we're going to
11 a paperless society, we're not, but the written word
12 unfortunately in many of these trials gets lost.
13 So I come back, then, that what is the key?
14 The key is to educate the judiciary on why all of this
15 is necessary. Because simpler is better than complex,
16 and: Judge, if I can try a case in five days, by using
17 this equipment, that will save three weeks of trial.
18 And that's where we're going. Unfortunately,
19 there is a price that justice costs. This judge, this
20 judge, all of the judges here have budgets they have to
21 work with. The fact of the matter is, if they can try a
22 three week case in five days, that's what they're going
23 to do. If we get the same justice. I maintain you not
24 only get the same justice, you get better justice.
25 What's coming down the road in the lessons
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1 from the Keating case? Let me just tell you about
2 depositions for the moment, for those of you who are
3 interested in depositions working today.
4 There is so much new technology working in
5 depositions you have no idea. Depositions, or video
6 depositions as we call them, not depositions, everything
7 is video depositions, are changing to where you can
8 instantly summarize and/or cut portions out of them to
9 show a jury.
10 You can take today this little sheet of paper
11 with a bar graph, and I think you're going to see
12 demonstrations of it later of how I can have a witness
13 on the stand, I have already deposed that witness, I can
14 ask that witness a question, the witness can say: The
15 answer is A, B, C, D. I then say: That's not what you
16 told us under oath in your deposition, is it? I can run
17 my little style over the bar graph and up here, will
18 come the witness in a deposition contradicting himself
19 or herself.
20 How did I learn to do that? Miss Mary Ann
21 Tearney told me how to do that in the Keating case. She
22 showed me how to use bar graphs and everything else.
23 And she showed me -- I knew, what were the critical
24 portions of the testimony, to put that up there.
25 Is it graphic? You bet it is. Did not
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1 witnesses get tripped up? You bet they did. Do
2 witnesses unfortunately get tripped up in a trial
3 because all we're seeking is the truth? You bet.
4 I think it's graphic that this jury should be
5 able to see that, what people said in a deposition, how
6 they acted.
7 I don't want to tell war stories here, but I
8 once took the deposition of one of the Rothschilds, I
9 can't remember which it was. One of the Rothschilds in
10 a case insisted on smoking in a deposition. He smoked
11 his cigarette like Europeans do. I don't know, I don't
12 smoke, and he did one of these things. The ashes would
13 never hit the ashtray, they would hit the desk. And all
14 through the deposition, he would just keep flicking
15 ashes all over the desk.
16 That was shown in a trial. Do I have to tell
17 you what the picture was of that jury in seeing this
18 conduct? I don't have to explain that to you, you
19 understand. Versus reading out of a book.
20 Now is that relevant? I thought it was. I
21 thought it was an act of arrogance. I don't want to go
22 off on an advocacy course here this morning, but I
23 thought it was typical of what he was saying at the time
24 he was saying it.
25 I've had depositions where people have eaten
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1 their lunch while deposing them. They have no regard
2 for the system.
3 I've had a case called technical equities,
4 where a man in New York actually looked over at the
5 camera and gave the judge the finger. Did the judge let
6 it in evidence? No. He said it was too prejudicial.
7 Did he remember that? You bet he did.
8 Now, again, I don't want to get off on what
9 you can do with technology today, but what I'm saying to
10 you is that you could bring a live person on that screen
11 for pennies to this trier of fact, and that's really why
12 we're here this morning.
13 Let me tell you, there are some tremendous new
14 uses of video depositions that the technological people
15 in this room have now seen. You can take documents,
16 what I used to have to do when I wanted to show a jury a
17 document is that years ago, I would blow it up and put
18 it on an overhead projector.
19 I would never allow the witness just to read a
20 document without having it blown up on a big screen. I
21 would bring in a big 10 by 10 screen so the jury could
22 read along. And what I would usually do is stand at the
23 overhead projector, and as I interrogated the witness, I
24 would say: Sir, go to paragraph 4 and let me ask you
25 about paragraph 4. And then I would underline it.
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1 You don't have to do that anymore. With new
2 technology, to save time, you have a screen just like
3 this, a document comes up on the screen. With the help
4 of all of these technological people here now in the
5 audience, they can in very short order, with a bar graph
6 like this -- and I think you're going to see
7 demonstrations of it -- blow up big portions of the
8 document you're talking about. It just zooms out.
9 There's nothing new and creative about this.
10 Like Vance, I have a six year old at home. My
11 six year old does this on her computer. I stand there
12 in awe. I am dumbfounded what kids do on their computer
13 today. She's got one of these things she pushes around,
14 I can't even describe it. It blows it up and then she
15 prints it out. And I'm shocked by this. I'm not
16 shocked, I'm shocked that she can do this, and she's not
17 just like any other six year old.
18 What I'm saying to you is that technology, if
19 can bring that right -- if she can do that in her
20 bedroom, she can bring that right to the courtroom and I
21 can do that with a witness on the stand and the courts
22 can be better served by it.
23 And the courts can be better served by it.
24 That's the key. The key is remembering that the
25 technology has to help us communicate.
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1 Now, I want to tell you some of the problems I
2 see. There are enormous problems coming with high tech.
3 Somebody asked a question: How do you know
4 they're authentic records.
5 Boy, I have to tell you this is an awesome
6 problem that is coming. There's a case that I'm aware
7 of that was just handled in San Francisco, where a
8 person was fired from a job.
9 And this whole E-mail thing, if you're not on
10 E-mail, friends, and you haven't heard the horrors of
11 E-mails, you haven't lived. I'll read you a couple in a
12 moment. But in this one, this executive vice president
13 wrote to the CEO, words in effect: John, just fired
14 Ruth at your request.
15 Ruth had reasons why -- and I'm using a
16 different name -- Ruth had reasons why she was fired.
17 They were not legitimate reasons.
18 She got her hands on that E-mail. That
19 company spent hundreds of thousands of dollars, I'm
20 told, to prove that that E-mail was a fake E-mail.
21 Because I don't have to tell you what that E-mail would
22 have meant to a trier of fact, right?
23 The problem today with what is real and what
24 is bad E-mail is awesome.
25 Let me read you an E-mail from a recent case,
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1 I believe it was in Vermont Microsystems versus -- it's
2 Vermont Microsystems. Autodisk versus Autodisk. Quote,
3 this is highly illegal but let's do it anyway.
4 Now, people grown and moan, but we used to
5 find this on documents all the time, right? We had a
6 document in the Keating case: Don't let the regulators
7 see this. Written by a lawyer, friends. By a lawyer.
8 But these are examples. I think the most
9 extreme example I've seen recently in a case was:
10 Please destroy this evidence when you're done. These
11 are all written on E-mails.
12 Now, there is today a whole new world of
13 electronic data out there that is going to terrorize
14 litigants in courts and how you know whether these
15 documents are real or not, God will only know.
16 I can tell you this: That in a very recent
17 case, that Chevron just had of the six women or five
18 women, whatever it was, in the Bay area that sued for
19 sexual harassment by these individuals, the individual
20 testified that he had never harassed this woman, he was
21 a great believer in equal rights for women, especially
22 Chevron employees. On his E-mail they found, quote, I
23 love beer, it doesn't demand equality.
24 Now, let me tell you, he thought, as I'm told,
25 many people think those E-mails are gone when you press
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1 a button and you erase them. We know they're not gone.
2 We know they're still there. We know that if you get an
3 order to go in and pick up the ghosts or whatever
4 they're called, I'm told that is the buzz word, to pick
5 up the ghosts on the hard drive, they're there.
6 Matter of fact, when Siemans bought an Arco
7 Solar Energy and decided the program they bought, the
8 subsidiary they bought was no good and didn't work, they
9 somehow got ahold of some computers that were used
10 because they bought the company. And they had someone
11 go through the computers and just make a check at what
12 was on some of the executives' E-mail. And let me read
13 this one to you.
14 They found, quote, as it appears that TFS is a
15 pipe dream, let Siemans have the pipe.
16 That case was over rather quickly. But the
17 point of that story in terms of technology is that what
18 we think we have or we can do with technology may or may
19 not be the case.
20 And I think tomorrow there's a course or a
21 program or a seminar on what is admissible in evidence.
22 I can tell you this, sir. That I was delighted that you
23 asked that question of Vance as to how do you know what
24 is in fact authentic corporate documents today.
25 We are dealing, we are dealing with situations
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1 where you cannot detect when documents were put into a
2 system or into a filing system. And this becomes a very
3 big problem for determining not only what is there and
4 what isn't there, but when that document went into the
5 system that you're now going to attempt to put in
6 evidence, because the whole issue of handling comes down
7 to what we call laying a foundation for admission of
8 business records. And we would do that mechanically.
9 We would put the person on the stand and we
10 would walk them through how the documents were kept.
11 You would ask the magic question: Are they kept in the
12 ordinary course of business? I've never heard anyone
13 say no to that. Of course they say yes, they are kept.
14 In the ordinary course of business, and then you're all
15 set to go because you've now met the four steps required
16 under all the cases, right?
17 Now with computer records, we have whole new
18 evidence code sections that allow computer records in
19 without any of this. And that is a very serious, very
20 difficult problem that we're dealing with. The whole
21 issue of the new technology is not dealt with in our
22 evidence codes.
23 So what we have to do is we not only have to
24 go to the judges, the judiciary, and educate them on how
25 it can be done, we then have to go to our state
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1 legislators and get laws passed that would facilitate
2 the use of this equipment, because in many states, video
3 depositions are not used. They are not allowable under
4 the code yet. They are coming. But as you pointed out
5 before, it took time, Vance, to educate legislators and
6 bring this evidence to us in an allowable form.
7 The issue of technology clerks I want to come
8 back to just for a moment before I talk lastly about
9 document storage and tell you what you can do with
10 technology clerks.
11 Your courthouses can get people from the
12 technological groups. And I'll bet you if you walked up
13 to Vance Opperman at this seminar and asked him: Would
14 West send a technician to our courthouse to show us how
15 we can set up a system, even a primary system of
16 communicating between the judges and/or putting in a way
17 that judges can pull up cases very quickly in their
18 chambers or what have you, his answer would be
19 invariably yes.
20 The companies today are willing to go out
21 there at little or no cost and show the judiciary or the
22 court system how this can be done. It is in their
23 interest, it is in the court's interest and it appears
24 to me today that you can literally -- we have in the
25 little county I practice in in California, I'm just a
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1 country lawyer.
2 In the little county I practice in, we have
3 people who are truly very, very computer literate in our
4 bar association. They go to the courthouse, work with
5 the judges, in showing them absolutely free, there is no
6 cost involved, how this they can do this. It's being
7 done every day of the week on a very low cost basis.
8 And the biggest problem you're faced with,
9 besides the old mentality of why do I need this, I want
10 a witness in court, is the cost factor. And I keep
11 hounding on that because the cost factor can be
12 eliminated dramatically in terms of what you can get
13 free if you're a court administrator, if you're a
14 presiding judge or what have you. The technological
15 people want their equipment in your courthouse. They
16 want it there.
17 Lastly, let me tell you about document
18 storage, because document storage today is one of the
19 very, very big problems we're all faced with. Every
20 courthouse has problems with document storage.
21 And you have, as Vance mentioned, you have
22 your optical imaging. Again, we come back to cost
23 factors how this can be paid for. In the Keating
24 case -- I'm going to guess, I think we had about three
25 million documents, I can't remember the total extent of
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1 them, but trust me it was a number with many, many zeros
2 at the end. We had to somehow input these into a
3 computer base.
4 And I thought: My God, how are we going to be
5 able to do this? And it was all done, and at the end of
6 the case it became a cost sharing, a cost sharing on a
7 prorata basis. It became a cost sharing basis. And in
8 some courts can even become a cost of the case that the
9 other side, I'm not advocating this, that the other side
10 will bear if they were to lose it. There's pros and
11 cons on that.
12 There are many ways to sit down with budgetary
13 confers and figure out ways of making it simpler for
14 courts to act today by using technology and shifting
15 some costs in a marginal way to litigants who can and
16 will pay for this.
17 We have a very dramatic shift away from our
18 court system in California today to private judging.
19 They are going in droves, they are flocking to private
20 judging. Why? They can get quick, inexpensive
21 decisions rather than waiting for many months or years
22 for a judicial system. And people are willing to pay
23 for that.
24 And I think as Vance pointed out, the legal
25 profession is in the forefront or should be in the
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1 forefront of making the process work. God knows we have
2 our detractors. I only wish, as I sat listening to
3 Vance this morning, that I could have picked him up and
4 put him on the floor of the United States Senate over
5 the last few days. When I hear the nonsense -- and I'm
6 not talking about caps or anything like that, I'm
7 talking about the total abuse of the legal system,
8 verbally, the civility that we're lacking even from
9 United States senators who talk about lawyers on both
10 side as, quote, ambulance chasers, as this and that and
11 demeaning the process, because as Vance so eloquently
12 pointed out when you eliminate lawyers from society, my
13 friends, you eliminate society.
14 Having said all that, the lessons from the
15 Keating case were dramatic. What we did in the Keating
16 case was really a dinosaur compared to what can and
17 should be done today.
18 It's there. Are there pitfalls? You bet
19 there are pitfalls.
20 Are there are dramatic things I haven't talked
21 about because of time problems, of course. Computer
22 animation.
23 You have in your book, by the way, a marvelous article
24 starting at page 50. I'll just give you the highlights
25 of it, it's animation and rendering come to the
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1 courtroom. If you want to have enjoyable reading on the
2 plane going back, read that, and read the article
3 following that on page 52.
4 On page 52, there's a story of a case tried in
5 a courtroom back in Kentucky, put together, I might add,
6 by an outfit out of Santa Barbara, California called
7 Wave Front Technology. Wave Front Technology does do
8 computer animation.
9 This was an extraordinary case and it goes to
10 show what you can do with a computer and a jury looking
11 at that. This involved a pregnant woman who died in
12 childbirth. The problem was that the child was larger
13 than the canal. It ripped certain parts of the body
14 coming out. The bottom line is, when you read it, you
15 will see that because of the rupture, there was problem
16 with the woman's lungs, debris flowed to them, and she
17 died.
18 Frankly, it was a case that was argued hot and
19 heavy by experts on either side. You had Dr. A saying
20 there was no medical negligence, you had Dr. B saying
21 yes, there was, and the jury could easily be confused by
22 the testimony of each.
23 Wave Front Technology did a computer animation
24 of that baby in the birth canal, of that birth, and
25 showed what happened. It is a graphic demonstration of
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1 where we're going today with computers. That's but one
2 case.
3 But if you read that, you'll see the
4 progression of how the lawyer took it from A to Z,
5 walked through it to show what could be done.
6 And you know, interestingly enough, there are
7 obscure sections in the evidence code in all of our
8 states that allow judges to refer matters to special
9 masters and as Judge Ware who's sitting in the front row
10 here knows, a fine federal judge from California, many
11 of our patent cases today involve obscure issues of
12 patent licensing, patent applications, what is the
13 patent and what is the infringement?
14 God only knows you could sit for six months in
15 front of a jury and try to explain patent infringement
16 to a jury and I guarantee you they will be asleep by
17 10:00 every morning, it's just not something that is
18 exciting, it's not good bedtime reading.
19 The bottom line is, that they're referring
20 many of these cases to special masters who will tell
21 them what is the patent, what is the alleged
22 infringement and they are being educated in a means
23 called technology, in that case human technology.
24 Let me go back and tell you the magic words
25 again. Judge, the motion this morning is to refer this
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1 matter to a patent expert who might save us four months
2 of time in explaining it to the jury. That motion, nine
3 times out of ten, is granted, as I pointed out before.
4 And if you could visualize now the use of
5 computer animation graphics and what have you, and I'm
6 not saying for the court to become an advocate, I'm
7 suggesting that it is a means of the court being able to
8 now use this technology to learn for himself or herself
9 what are the facts that are being tried, and what are
10 the issues that are going to go to that jury.
11 And if we can keep, yes, a television out of
12 the courtroom, maybe we can get it done in some
13 reasonable time. And by keeping the television out of
14 the courtroom, for those of you from California, you
15 understand what I'm talking about. Just then maybe we
16 can start trying cases like they should be tried and we
17 can use this technology to a great, great advantage that
18 is not expensive, that is simpler, more simpler than
19 complex, and is something that we can bring and will
20 come in the next five years.
21 With that I thank you. And I'll answer any
22 questions.
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