Electronic Presentation of Evidence (EPE) is an IT-driven alternative to paper-based presentation in a room being used for a legal hearing, usually a court or arbitration room. Most commonly it will consist of scanned pages of documents being stored on a computer which are made available to the participants of the hearing via presentation on screens dotted around the courtroom, but the term EPE also embraces other technologies such as video links, 3D graphics and virtual reconstructions – anything that will aid the clarity of the case being presented or is required for the smooth running of a hearing.
Although this may sound alarming, the purpose of technology is that it should help, support and underpin a process rather than take over from a tried and tested methodology. Counsel should not be aware that as he or she is presenting their case, an operator is quietly illustrating the points being made using highlights, arrows, zooms and stamps.
In its crudest form, EPE has been around since the 80s and there is now an extensive array of reliable technology as well as an even longer list of whistles and bells for clever tricks, if required (though not always recommended).
EPE was first used for heavy-duty fraud cases where the sheer volume of documents and the complexity of the case lend themselves to an EPE solution. Members of the Bar are rightly proud of their advocacy skills but a picture can paint a thousand words. Encapsulate the movements of a money laundering chain in an animated PowerPoint presentation, and you make your point much more clearly than using words alone.
In recent years, EPE has also been used in large disputes in the Technology and Construction Court, where complexity and volume often conspire against paper. Multiple formats of ”˜document’ often form the evidence in such cases, and the facility to show a publicity film, technical reports, emails and site plan diagrams on the same equipment is invaluable.
There is currently a huge growth in dispute resolution and arbitration: the increased use of EPE can radically speed presentation, aid understanding and promote fair judgement – and with an estimated 300 arbitrations per year, that’s a very substantial cumulative gain.
EPE saves time and money and it also makes case presentation much easier to follow. It is also worth noting that the benefits increase, the earlier in the legal process it is used.
It is widely accepted that EPE can save approximately one third of court time and costs in criminal trials: it takes an average of 3.5 minutes for everyone to locate the specified paragraph within the specified document within the specified folder, whereas it takes 2-3 seconds per call out to bring up that same paragraph on screen – and the more documents shown, the more time saved. Knowing that everyone is on the same page is more than helpful. While there is no Jury to factor into the calculations in a civil trial or arbitration, the time savings are still important. Add to that the fact that some of these cases are well in excess of 100,000 pages of evidence, a room equipped with the shelf space of a respectable sized library would be required to accommodate them, not to mention the logistics of ”˜moving in’ for the start of the hearing.
“Electronic presentation of evidence (EPE) has the potential to save huge amounts of time in fraud and other complex criminal trials and should be used more widely.” – Protocol on control and management of heavy fraud and other complex criminal cases
The use of specific EPE software also makes for an extremely focused argument. No longer do you have to worry that someone is getting carried away with reading paragraph seven of the page when you wish them to look at paragraph four, even if paragraph seven is more interesting. Zooming in on the appropriate section of any given page will mean that paragraph seven is only addressed if and when Counsel wants it to be.
Ingredients of successful EPE delivery
There are two aspects: legal and technical.
From a legal perspective, litigators and counsel must ensure that they have total confidence in the quality of their data. An ordered, organised case with referencing formats agreed in advance bring smiles from all EPE suppliers.
Some people think that EPE, with its clever visuals and technical wizardry, can be used to make a weak case strong. In fact, the opposite is true – EPE will merely show up a weak case even more sharply.
From a technical perspective, it’s all about using specialists who really understand how an eCourt has to function. There is no point in using a provider who offers an all you can eat price when 80% of the capability is unused. The technology should also be ”˜silent’ and users should be almost unaware of its existence. Like the processor in the PC itself, it should thrum quietly away in the background, never drawing attention to itself. However, there’s a huge gulf in capabilities in the supply market, particularly with regard to the actual courtroom operator. A skilled, experienced eCourt manager can be the difference between success and failure.
Effective case presentation
As anyone who has ever fallen asleep in a film will attest to, it is possible to get switched off by the visual performance in front of you, particularly when you are asked to do nothing but sit back and watch. It’s the same with EPE. On many occasions, counsel rely totally on electronic visuals, whose soporific, relentless slickness just switches off people’s attention. Those who are on the ball will mix things up a bit, deliberately making jurors pick up their paper bundles so as to keep them alert and physically involved. Air conditioning will not be enough!
We also have to acknowledge that EPE is not perfect for everything. There are specific cases when it is useful, and many where it is essential, but for the daily grind, the old ways are sometimes the best.
Resistance to the use of EPE
Naturally, there are sceptics, but the list of converts grows with each case. And as I’ve touched on earlier, there are those who know that their best hope of winning their weak case lies in bamboozling the court with a detailed paper-based argument.
However, it is great to see many of the senior members of the law community championing the cause of EPE. It might be expected that they would be the most resistant, or at least the least interested, but it is by no means always left to ”˜Junior’ to work the equipment.
Interestingly too, judges are increasingly aware of EPE’s ability to save time and costs and sometimes insist on the parties using it, and the Judiciary, spurred on by a government eager to push through efficiencies wherever they can, are generally in favour.
Usage will rise, not just because of familiarity, but also because of the rapidly increasing volume of electronic evidence: evidence which is digital at source should be brought into court in that format.
There are issues to overcome. Data exchange formats need to be agreed, and more equipment installed as standard. It is quite possible that the future lies in the parties bringing their own data on their own computers and connecting into the existing infrastructure of a court or arbitration room. With the costs of these reducing daily as the technology moves forward, we cannot be too far away from all courts being permanently equipped for Counsel to plug into.
With new technologies being used in our private and business lives all the time, such as SMS, instant messaging and video conferencing, there will be no lack of digital content to present via an EPE solution.
Lisa Burton is Director of Legal Inc, a company providing services in litigation support, edisclosure and electronic presentation of evidence.