In this article Lisa Burton, a director of litigation support and e-discovery specialists Legal Inc, explains what is meant by EPE – or electrontic presentation of evidence – the latest TLA (three letter acronym) to hit the legal world...

In essence, EPE is an IT-driven alternative to paper-based presentation in a room being used for any type of 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 sophisticated complementary 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.

Now the law can be an old fashioned industry and the idea of all this often provokes sharp intakes of breath, but the whole point 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. There are some (now) humorous stories still echoing around the Advocates’ Dining Rooms of sheets attached to the wall as a screen for a projector, but we have moved on a little since then.  Being the mother of invention, necessity has spurred the development of the technology, and these days there is an extensive choice of basic, reliable  technology as well as an even longer list of whistles and bells for clever tricks (if required, though not always recommended).

In what type of cases is it typically used? 

EPE was first used for heavy-duty fraud cases, the sheer volume of documents and the complexity of legal argument lent 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 area in Dispute Resolution and arbitration:  the increased use of EPE will radically speed presentation, aid understanding and promote fair judgment – and with an estimated 300 arbitrations per year, that’s a very substantial cumulative gain.

What are the benefits of using EPE?

The principal benefits are  two-fold: EPE saves time and money and makes case presentation much easier to follow. It is also worth noting that the benefits of EPE increase the earlier in the legal process it is taken into consideration.

It’s 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, where it takes 2-3 seconds per call out to bring up that same paragraph on screen - 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. And they do say that moving is one of the most stressful activities in life…

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.

What are the essential 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. It is also absolutely vital that the preparation of the evidence is the best it can be. An ordered, organised case with referencing formats agreed in advance bring smiles from all EPE suppliers. It seems an obvious thing to say but there’s a misconception that EPE, with all its clever visuals and technical wizardry, can be used to make a weak case strong. In fact, quite 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. 

How is EPE best deployed for effective case presentation?

Those who use EPE to maximum effect understand the limitations of technology and the psychology of those in the courtroom.
 
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 the fact that while there is – quite rightly, much excitement about the capabilities of EPE, it is not perfect for everything. Yet 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.

Is there any resistance to the use of EPE within the legal profession and judiciary?

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 week 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.

EPE and eCourt solutions are the exception rather than the norm at the moment. Will this change?

Absolutely. Usage will rise, not just because of familiarity but because of the rapidly increasing volume of electronic evidence: evidence which is digital at source and thus should be brought into court in that format.

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 keen as a whole to use EPE, and this is no bad thing.

There will be issues to overcome, obviously. 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 systems reducing daily as the technology moves forward, we cannot be too far away from all courts being permanently equipped for Counsel to plug into. But with new technologies being used in our private and business lives all the time – SMS, instant messaging, video conferencing, there will be no lack of digital content to present via an EPE solution.