Tell It to the Judge: Explaining eDiscovery Issues to the Judge

Nothing strikes fear into the heart of someone than when you have to appear in court and explain technical issues to the judge.  

Over the course of my 30+ years in litigation support, I have been commended by judges but also yelled at and asked to explain technical issues.   I will tell you there is a new level of anxiety when you have to sit in the witness stand or stand before the bench to address the judge.

Don't reach for the Xanax yet.   With proper planning and preparation, you can address the judge without a panic attack.

First - and most important of all - get with the litigation technology specialist.  Don't just grab the IT guy or someone that knows something about computers.  You need someone that speaks the language who can adequately interpret it for the judge to understand.

When you are notified that you will need to explain eDiscovery to the judge, the first thing you should do is outline every step you did in the process.  Make sure you create a good timeline because the judge will want to know when you did something.  Dates/times are usually very important.  

WRITE IT DOWN.  Don't try to memorize what you did.  This will significantly reduce your level of anxiety.

Review it with your attorney to make sure the explanation is clear and precise by simplifying your explanation of the process.  Don't get overly technical in your explanation.  Most judges are more tech-savvy than they used to be, but you still need to explain your processes in terms which would be easy to understand.

It also helps to know the judge.  You don't want to talk over their heads, and you also don't want to make them seem dumb either.  There is a fine line to walk here.   Don't try to impress the judge with your technical knowledge.  Just stick to the facts and what you are being asked to explain.  

Don't take it personal if the judge doesn't agree and rules against your team.  It happens.  Always be a professional.  Don't get mad or take offense.  You can't win them all.

In my last appearance in the courtroom, I had to explain an issue about deduplication and why the deduped records were not turned over to the other side.  Naturally the other side felt like we didn't give them everything and didn't understand what deduplication was.  I prepared my outline, my timeline and gave it to my attorney.   She was able to understand it and explained it to the judge without me having to go to the witness stand.  Ultimately the judge scolded my attorney for the issue, and I don't think any explanation would have appeased him.  

Here are the eight things to remember when talking to the judge:

  1. Find the litigation technology expert immediately
  2. Write down the processes and timeline
  3. Review it with your attorney
  4. Simplify your explanation
  5. Review it with your attorney
  6. Don't try to impress the judge with your tech speak - stick to the facts.
  7. Don't take it personal if the judge doesn't agree
  8. Be professional  
As always, if you need help with litigation technology, please consult a litigation support professional. 

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