Understanding Litigation

Digital evidence (eEvidence) in litigation is something that, if you’re on either side, you need to comprehend. Not understand; you need more than that. Especially when it comes to evidence and expert witnesses, judges and lawyers need an end to end confidence in the product. Lots of times, that’s not there. The lawyer seeks out someone “reputable” to handle the evidence collection, but what if they’re only 90% on the ball? Unless the lawyer really knows their stuff, they aren’t going to spot the weakness. Which means if the judge or the opposition does spot it, they could be in a bit of trouble.

How to know if you’re witnesses will be able to withstand the glare of the opposition? If you can walk through the entire process, from seizure to presentation, and as the non-expert in the process, be confident that the process is sound.

Questioning the chain of evidence and evidentiary conclusions is simple and straightforward, if mundane and tedious: at every step ask the question. Why did you do that? Why do you claim that? What makes this the best? Is there another way? How did you? Where did you? Who did that? Who says so? Who else says so? When was that?

By simply drilling into each layer of the chain, you gain a confidence in it that comes through in court. And more support for it’s accuracy.

If your witness can’t explain the situation to you in a way that makes you 100% confident, it’s probably not worth 100% confidence. Any gap can be exploited by the opposition. If you can find and fill those gaps, or at least circumvent them, you’re way ahead of the game on court day.

If you can’t, chances are you’re about to get eaten.

This post is copyright 2010 Digital Trust, LLC.  This is not legal advice. Always seek consultation with a qualified legal representative for legal matters. Counsel: do not list Digital Trust without contract. Replication for internal company use is permitted provided this notice remains attached.  No other private or public re-use is permitted without consent.

Cause and Effect: eEvidence Collection

Collecting eEvidence (digital evidence) has always been a chore. When 200MB drives were the norm, it still took 2 hours to image a drive. Now they’re 200GB and it takes 3 hours. Plus copies. So imaging drives for a case is expensive. It’s not just the time spent imaging, there’s also any necessary testimony, report writing, and additional copies. Drives get bigger faster than technology can evolve to process them, so now we have TB drives that take 16 hours to get the first image, and then you have to redo the checksum to confirm the image. If you’re working at a client site, that’s expensive for your team.

Does that mean that by employing larger hard drives the bad guys can make it too expensive to prosecute or sue? It sure does. It’s one reason why prosecutors won’t go after cases below a certain level. It’s too costly. Let alone for the individual litigant that has shallow pockets. A mediocre evidence case is going to add $2500 to the bottom line. If you’re in People’s Court, that’s not going to happen. A more serious case can run into tens of thousands. A big case into hundreds.

So attorneys, remind your clients to buy the biggest drives they can afford, so that on the off chance they’re sued, they present a discouraging front.

What’s the effect seen from that cause? The eEvidence business needs to bump up efficiency. If one agency can bring home a case for 25% less than the competition, you’re foolish not to use them. There hasn’t been much competition, but that may be changing. As business people look into the numbers being thrown around in eEvidence gathering, they see opportunity.

You can have perfect evidence, or you can have good enough evidence. You can have genius testimony, or good enough testimony. (Anything worse than good enough doesn’t survive, because it gets sued into oblivion.) You can have it fast, faster, and fastest, with costs rising accordingly. It also comes in immediate, tomorrow, and when its convenient forms. And local talent should be cheaper, but it’s not always that way.

Looking at eEvidence assistance as just an hourly rate is a big mistake. Take the time to talk with the potential services and find out which one provides the best return for your money.

This post is copyright 2010 Digital Trust, LLC.  Replication for internal company use is permitted provided this notice remains attached.  No other private or public re-use is permitted without consent.