Legaltech hosted a panel called “How is Technology Being Used in Today’s Courtrooms and Cases?” We heard from 5 different federal judges who each had an opinion on the role of technology and how it has affected courtroom proceedings. Judge Andrew Peck, Southern District of New York, explained that opportunity for new technology in trial is dwindling because less cases are being taken to trial. He also explained that “when cases do get to trial, the presentation of the trial, even in the Southern District of New York, technologies vary from the lawyer that barely has one copy of a paper for an exhibit…to the fully wired courtroom, where virtually everything is computerized, there are monitors in front of each lawyer table, and either the courtroom deputy or one of the lawyers controls which screens he wants”. However, in order to work that type of technology in the courtroom, at least those in the Southern District of New York, the lawyer must come prepared since the courtrooms are not pre-wired.
Judge James C. Francis also made a point about how technology can help attorneys in a way that maybe they hadn’t thought before. He referenced a case where the facts of the case proved to be too confusing for the jury, leading to a mistrial. The second time, the attorney used technology to simplify facts and display them in an easier way, which ultimately led to a conviction.
Judge Pamela Sargent discussed the importance of using technology only if the attorney knows how. The use of technology must be a group effort, starting with vendors properly teaching attorneys how to use their product.
It seems, however, that the jury is still out. Technology is not as prevalent in the courtroom as they would expect. Fear of the unknown and content with current practices makes attorneys reluctant to adopt new technology.
Source: Legaltech news
Missouri Senator Mike Parson’s bill, SB 591, was brought to the committee yesterday. The bill “would provide the same high standards for trial evidence that is required in federal courts and many other states. Called the ‘Daubert standard,’ it ensures that only evidence deemed relevant, reliable and provided by qualified individuals will be admitted as expert testimony.”
The general counsel for the Missouri Chamber of Commerce testified, joining the Associated Industries of Missouri, in support of the bill. The argument is that currently judges are using an outdated law, one made in 1923, to decide whether to admit an expert’s testimony. The current law has been replaced in most states, making it clear that Missouri needs to make a change.
Expert witnesses are very integral to the outcome of the trial and under Daubert, the judge is given a significant role in deciding if the expert meets the standards needed to testify.
Oscar Thomas was found guilty of murdering his ex-wife back in 2006. Court documents show that the decision was primarily based on the testimony of the prosecution’s expert witness that stated for a fact Mr. Thomas’ ex-wife died of “intentional strangulation” even though there was no external bruising. Thomas argued that he didn’t receive a fair trial because his counsel did not hire an opposing expert witness to counter with another forensic opinion. The state circuit court, however, denied Thomas’ request because they didn’t find any negligence on the attorney’s part. The state appeals court also denied his request, “but only on the ground that Thomas was not prejudiced by his counsel’s conduct, without addressing deficiency.” The Seventh Circuit, though, sided with Mr. Thomas stating that “given the weakness of the state’s case, especially as it relates to Thomas’s intent, had counsel reach out to a forensic pathologist, or another expert similar to the habeas expert, and the expert testified, there is a reasonable probability the outcome of the trial would have turned out differently.”
This case has called attention to the differing opinions as to how much deference federal appeals courts must give to state court decisions that have rejected a prisoner’s deficiency claims. Wisconsin, in this case, believes that Federal Courts are not honoring Congress’ mandates to afford significant deference to state courts under the Anti-terrorism and Effective Death Penalty Act.
This week a state appeals court ruled that there is no violation of law if a fitness center charges reduced membership fees based on age. Daniel Javorsky filed a law suit in 2013 against Western Athletic Clubs because they were charging a lower membership fee to “Young Professionals” (ages 18 – 29 years old). The fitness club based this on income disparities between these young professionals and older members. Justice Henry Needham dismissed the case stating that “offering a reasonable discount to a particular age group does not suggest that the group is better than another” or “perpetuate any harmful stereotypes”.
Mr. Javorsky’s expert witness stated that those disparities don’t always exist between age groups and those ages 25 to 29 are just as well off as their older counterparts. He added that fees should be based on income not age. Javorsky’s lawyer also argued that the 1985 California Supreme Court ruling prohibited “ladies’ night discounts at bars and car washes, finding that they were arbitrary acts of discrimination that served no legitimate social purpose.”
The First District Court of Appeals in San Francisco upheld the decision citing that state law allows differential treatment among customers unless they are “malicious, hostile or damaging”.
Last week Samsung agreed to pay Apple $548 million after losing the appellate phase of their patent battle. The payment will come after Apple submits an invoice and will be paid by December 14th. Initially, Samsung, back in 2012, was required to pay Apple $930 million, but the amount has since been lowered due to claims related to “trade dress” being thrown out. Although the legal battles haven’t stopped – there is already another trial set for mid-2016 – Samsung had a few things to say:
Samsung further reserves all rights to reclaim or obtain reimbursement of any judgment amounts paid by Samsung to any entity in the event the partial judgment is reversed, modified, vacated or set aside on appeal or otherwise, including as a result of any proceedings before the [United States Patent and Trademark Office] addressing the patents at issue or as a result of any petition for writ of certiorari filed with the Supreme Court. Samsung notes that the Patent Trial and Appeal Board has issued a final decision of invalidity on the ’915 Patent, and Apple filed a notice of appeal to the Federal Circuit in the USPTO last week. The appeal has not been docketed at the time of this filing.
A Samsung spokeswoman also said that they “are disappointed that the court has agreed to proceed with Apple’s grossly exaggerated damages claims regardless of whether the patents are valid…”.
While law firms are seeing growth, it seems IT projects are the real focus. According to surveys conducted by PwC:
- 82% of UK law firms reported growth in 2015.
- 95% of UK firms reported plans to undertake major IT projects in the coming year to improve efficiency.
- 97% of US firms have reported a greater IT budget this year compared to last.
- 80% of those surveyed believe they “need to respond to the digital age”.
As the economy continues to improve, law firms are willing to spend in order to keep up with evolving technology. However, some firms are having to make operational changes just to keep up with the newest technology since they do not have capabilities in place to do so. Security also remains a priority since 62% of UK firms were affected by a security incident. Keeping up with technology and increasing interaction with clients seems to be the main focus of law firms going into 2016.
Source: Legaltech news
Global Tungsten & Powders Corp. (“GTP”) recently brought a breach of contract and fraudulent misrepresentation suit against EisnerAmper LLP. The suit alleges that an expert witness provided by the firm lied about having a doctorate degree; this cost the plaintiff a $10.3 million arbitration award.
Richard Gering, the expert in question, and EisnerAmper falsely represented that Gering earned a Ph.D. This, Global Tungsten claims, ended a settlement agreement worth possibly $10.3 million in arbitration over a disputed sales agreement. GTP also claims that EisnerAmper received approximately $151,000 for its work on the case, which, due to negligence, should have been returned.
The dispute stems from a supply agreement in which Largo Resources Ltd. agreed to sell monthly supplies of tungsten concentrate. GTP hired Drinker Biddle & Reath LLP to represent them in an arbitration concerning Largo Resources. Drinker Biddle & Reath entered into an agreement with EisnerAmper and Gering on GTP’s behalf.
All plans to reach a settlement were put on hold since the fraudulent misrepresentation came to light. In February, Largo asked a judge to vacate the award. Ultimately, Largo and GTP signed an $11.5 million agreement with the understanding that GTP would release the remaining contract rights. GTP is seeking damages, interest and attorneys’ fees.
In my research, I did find that Gering had falsely represented himself listed as “Dr.” and “PhD”, however, now he is represented on his LinkedIn as a “PhD Candidate” with all courses completed except his dissertation.