Feature Article: Effective Application of Graphics and Technology in Alternative Dispute Resolution
	Litigation Minute: Top Five E-Discovery Cases of 2008
	News & Events

Feature Article

Effective Application of Graphics and Technology in Alternative Dispute Resolution

It is well accepted that the proper use of graphics can better educate, persuade and keep the attention of the average juror. Judges, arbitrators and mediators use the same cognitive reasoning that jurors do when making decisions. It is therefore wise to consider the effective application of graphics and technology outside of a traditional courtroom setting in instances of alternative dispute resolution (ADR) forums, such as an arbitration or mediation. Graphics and technology can help counsel weave pieces of evidence into a cohesive story, help build knowledge, reinforce key themes, simplify complex facts and create continuity in all phases of the proceeding.

It is especially important to effectively use graphics and technology in arbitration, as decisions are generally binding.

First, you will need to consider the preferences of your arbitrator when determining how and when to incorporate graphics into an argument. It is always a good idea to find out whether the arbitrator or panel prefers a high-tech or low-tech presentation. This consideration centers on whether the panel prefers to receive its graphics and exhibits by hard copy or electronically (e.g., a flat panel monitor at each seat or a large presentation screen for mass viewing).

Second, be mindful of the disclosure requirements. In most arbitration settings, each party is required to disclose all exhibits to the other side in advance. This rule affords each party the chance to make objections early, guaranteeing the offered evidence will be admissible during the proceeding.

A third consideration is the amount of time you have to present your side. In some cases, using technology to present exhibits and deposition testimony can speed up your presentation. Graphics can also increase the efficiency of your explanation, for example, by summarizing a complex concept. As they say, a picture is worth a thousand words.

A fourth consideration is the attorney's presentation style. An attorney is more apt to use graphics if he or she is comfortable running the technology. Additionally, be sure to consider the types of graphics and technology you will use. A simple PowerPoint presentation may be sufficient in some instances, while animations and additional presentation technology may be called for in others, taking into account the size of the case and the budget.

When considering what type of technology to use in mediation, it is important to remember that the outcome is determined by mutual agreement (as opposed to a decision rendered by a finder of fact). In other words, the role of the mediator is to facilitate discussion, not impose a decision. In either instance, graphics and technology may help to increase the persuasiveness of your argument. Therefore, be sure to consider the audience, the intended perception and the limited amount of time each party has to present its case. Additionally, consider the ability to package the end result conveniently either on an interactive CD or mediation book, as is often required in a mediation setting.

Graphics and technology can increase the persuasiveness of your argument in non-traditional ADR venues. However, do not use them just to use them. Be sure to consider all the various details to ensure that your presentation is the most effective use of your time and resources.

Special thanks to Laura Rosenthal, Kroll Ontrack/TrialGraphix Design Director, for her contribution in writing this article. Ms. Rosenthal specializes in the effective use of technology, graphics and demonstrative exhibits. She can be reached for question or comment at lrosenthal@trialgraphix.com.

Litigation Minute

Top Five E-Discovery Cases of 2008

2008 revealed an increased focus on the legal and technical issues involved with the collection, review and production of ESI. Recent cases illustrate that attorneys and legal teams are becoming more technologically savvy and judges are expecting early and comprehensive collaboration amongst parties. The following is a list of the top five influential decisions of 2008, listed in no particular order:

• Keithley v. Homestore.com, Inc., 2008 WL 3833384 (N.D. Cal. Aug. 12, 2008). Court imposes sanctions for "egregious" e-discovery misconduct.
• Peskoff v. Faber, 2008 WL 2649506 (D.D.C. July 7, 2008). Court orders forensic examination and denies cost shifting, citing producing party's discovery misconduct.
• Flagg v. City of Detroit, 2008 WL 3895470 (E.D.Mich. Aug. 22, 2008). Court orders production of text messages.
• United States v. O'Keefe, 2008 WL 449729 (D.D.C. Feb. 18, 2008). Magistrate orders parties to cooperate in production and advised expert testimony may be needed for judicial review of search methods.
• Victor Stanley, Inc. v. Creative Pipe, Inc., 2008 WL 2221841 (D. Md. May 29, 2008). Court denies motion to retract privileged documents, finding lack of reasonable precautions taken.

Full summaries for these cases, as well as a multitude of additional ESI cases, can be found at www.krollontrack.com/case-summaries/.

2009 will likely continue to reveal increased understanding of the legal and logistical issues involved in e-discovery as well as advances in technology designed to increase the efficiency of this process. The full news release summarizing additional cases of 2008 can be viewed at www.krollontrack.com/news-releases/.

News & Events

Kroll Ontrack Wins Big at this Year's Law Technology News Awards

Each year, Law Technology News recognizes vendors and law firms for their innovative use and implementation of technology in the litigation field. Vendor products and services are evaluated by LTN subscribers through an online voting system, and gold, silver and bronze honorees are chosen based on the number of votes. This year, Kroll Ontrack is proud to be the recipient of eight individual Law Technology News Awards. Furthermore, Kroll Ontrack's Legal Technologies products and services were recognized in each of the categories they were nominated. For the full story, please visit www.krollontrack.com/news-releases/.

Kroll Ontrack Offers Redesigned E-Discovery Certification Course for 2009

The industry's legal technology thought leader has revamped its E-Discovery Certification Course for 2009 with updated topics, additional speakers and dual track, customizable sessions to appeal to beginner, intermediate and advanced learners. The redesigned course curriculum is ideal for legal and technical professionals of all levels, including in-house counsel, law firm attorneys, litigation support professionals, paralegals, IT staff and members of the judiciary. For more information and to register for an upcoming course, visit www.krollontrack.com/certification-courses/.

Meet our representatives at the following events:

Visit www.krollontrack.com/upcoming-events/ for more information on these events and others.

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We Request Your Input

This newsletter was written by Regina Jytyla and Joni Shogren, Kroll Ontrack staff attorneys, with assistance from Kelly Kubacki and Meridith Socha, Kroll Ontrack Law Clerks. Ms. Shogren can be contacted by writing to jshogren@krollontrack.com.

For more information about electronic discovery and computer forensics services, contact Kroll Ontrack at 800 347 6105 or visit www.krollontrack.com.