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Technical Difficulties

NCJ Number
ABA Journal Volume: 87 Dated: January 2001 Pages: 54-58
Kate Marquess
Date Published
January 2001
5 pages
This article explains how to present evidence in computer-related cases that involve technological issues which are not part of the knowledge base or vocabulary of laypersons involved in fact-finding.
Telling a compelling story and teaching new concepts are skills any litigator needs. Technology cases, however, force lawyers to work even harder at these basics. From high-visibility copyright cases against file-swapping services like Napster to low-profile breach-of-contract cases over computer performance, high-tech litigators juggle more than just complex technology. They face rapidly changing markets and changing laws, younger and sometimes unsophisticated clients, and intense media scrutiny. Given the potential flaws and questionable mechanics of making a video demonstration, many experienced litigators favor live demonstrations of the technology at issue in a case. Such demonstrations presented by technical experts with the ability to communicate in laypersons' language have proven to be credible and effective. In turn, attorneys must become familiar with the technology at issue so they can effectively question and cross-examine expert witnesses and interpret the evidence to judges and juries. Judges and lawyers must keep pace with minute-by-minute changes in the world of commercial technology, so they may be proficient in applying old rules to a new game. Attracting the media to big cases that affect lots of industries and a large segment of the general public helps to elicit allies who will file amicus briefs. On the other hand, bad publicity can devastate a small company; the litigation team must carefully decide how to approach press coverage.