Snapchat as Evidence

A Georgia Teen faces felony charge after an alleged Snapchat 'speed filter' crash that severely injured the other driver.

A Georgia Teen faces felony charge after an alleged Snapchat ‘speed filter’ crash that severely injured the other driver. This material is reproduced from the CEBblog™, Snapchat as Evidence, copyright 2016 by the Regents of the University of California.Reproduced with permission of Continuing Education of the Bar -California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).

Several years ago we told you to consider Facebook postings as evidence in legal cases. This is still true, but now there are many more social media platforms to consider. Snapchat in particular has become a fertile source of evidence not to be overlooked.

Snapchat is a photo- and video-messaging app that’s different from other apps in that all photo and video messages on Snapchat (referred to as “snaps”) last for only a short amount of time and then disappear.

In his recent post on Technologist, Casey Sullivan explained that because “much of a Snapchat user’s life is captured and transferred through the app, it has become an important source of evidence.”

Indeed, two people were convicted of a sexual assault after they recorded the attack on Snapchat. Jurors were shown screenshots from the Snapchat video during the trial.

High speed car crash

high speed car crashSnapchat’s speed filter, which lets users show how fast they’re going while taking a photo, was used as evidence in a case involving a high speed car crash. Plaintiffs sued both the driver and Snapchat, arguing that the speed filter encourages reckless drivingand can cause crashes. Snapchat’s speed filter also may have played a role a car crash that killed three young women.

And in an extremely macabre instance, a teen posted a Snapchap selfie with a murder victim and it became key evidence against him in his murder trial.

It’s easy to imagine a myriad of cases in which Snapchat can be used as evidence. As Casey Sullivan put it, “[p]ersonal injury lawyers, divorce attorneys, criminal defense attorneys, and more could all benefit from evidence found through Snapchat.”

And the ephemeral nature of pictures on Snapchat isn’t necessarily a problem. Sullivanexplains that some Snapchat evidence is retained when users take screenshots of snaps and “Snapchat itself keeps logs of previous snaps.” But even deleted snaps don’t necessarily disappear; digital forensics experts can still pull them from the phone.

Now that you know to look at Snapchat for evidence, would you be able to get it admitted at trial? To learn how to get social media evidence admitted, including the key hurdle of authentication, turn to CEB’s Effective Introduction of Evidence in California, chap 54.

21 Things to Tell Your Testifying Witness

witness in court

This material is reproduced from the CEBblog™, 21 Things to Tell Your Testifying Witness, (http://blog.ceb.com/2015/11/16/21-things-to-tell-your-testifying-witness/) copyright 2015 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).

Before your friendly witness is called to the stand, you should go over some general guidelines with him or her. This is particularly true of inexperienced witnesses, but it can’t hurt to review these admonitions even with someone who’s very experienced in giving trial testimony. You also might want to give them a hard copy to look over just before testifying.

  1. Tell the truth.
  2. Don’t be afraid of the lawyers.
  3. Relax; don’t lose your temper.
  4. Speak slowly and clearly (most of us speak faster than we realize).
  5. Always be sure of the question before answering; if you’re unsure of the question, ask for a repeat or rephrasing.
  6. Under cross-examination, DON’T VOLUNTEER; if you can answer yes or no, do so and STOP.
  7. Don’t be afraid to admit that you don’t know an answer or don’t remember a fact.
  8. You don’t need to be positive to give an answer; you may testify that you think something is probably true or untrue.
  9. Don’t memorize your testimony, i.e., speak in your own words.
  10. Don’t kid or joke, and always be courteous to the judge and other counsel.
  11. Don’t be reluctant to admit that you’ve reviewed your testimony with counsel; every competent attorney goes over testimony with prospective witnesses.
  12. Get a good night’s rest, have a good meal, and don’t drink or take tranquilizers or medication before coming to court unless required to by a doctor.
  13. Don’t read, chew gum, sleep, or talk during court proceedings.
  14. Don’t wave or talk to the client or the attorney in the courtroom, hallways, or restrooms; doing so may make you appear partial to the client in the jurors’ eyes, causing them to discredit your testimony.
  15. Don’t discuss the case in the courtroom, hallways, or bathrooms, because jurors and others may overhear the discussion.
  16. Don’t say anything at any time to a juror in or out of the courtroom—this includes verbal and written communications of all types.
  17. When seated in court, don’t react to favorable or unfavorable testimony; grimaces and smirks may be noticed by the jury.
  18. Don’t pass notes to the attorney while in court.
  19. If there’s an objection to a question, wait for a ruling before you answer.
  20. If you make a mistake, correct it, even if the questioner has moved on to another question.
  21. When you finish your testimony, leave the courtroom—don’t wait for or attempt to talk to the client or the attorney.

For much more on preparing witnesses for trial, check out CEB’s California Trial Practice: Civil Procedure During Trial, chap 5. For step-by-step guidance and other useful checklists to help with trial preparation, turn to CEB’s Preparing for Trial (Action Guide).

The Downsides of an Attorney Joining a Corporate Board

The Perils of an Attorney Joining a Corporate BoardFrom time to time, attorneys are asked to serve as corporate directors or officers. Watch out—there may be some serious perils involved for the attorney and his or her law firm.

Here are examples of the downsides to an attorney joining a corporate board:

  • An attorney may be held to a higher standard of conduct than a nonattorney serving in the same capacity.
  • Others may be entitled to rely on the attorney’s statements as “legal advice” even though given informally and without charge, as at a directors’ meeting.
  • The arrangement may require a significant time commitment.
  • The attorney’s malpractice insurance policy may require prior approval from the carrier.
  • The attorney may be exposed to liability or to the possibility of conflicts of interest.
  • The attorney’s independence of judgment may be impaired, or appear to be impaired, which could be a source of later problems.

This material is reproduced from the CEBblog™^ The Perils of an Attorney Joining a Corporate Board, (http://blog.ceb.coiii/2015/07/22/the-perils–of-an-attorney-joiiimg”-a– corporate-board/) copyright 2015 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).

Insurance issues. One of the big danger areas is the possibility that playing both attorney and director roles may create problems with respect to insurance coverage. If, in addition to acting as a director, an attorney-director provides legal services to the company and liability results, interpretation issues may arise under both the company’s insurance policy and the attorney-director’s malpractice insurance policy.

For example, was the act or omission that caused the damage a consequence of the rendering of legal services or a consequence of the attorney’s conduct as a director? Both the company’s D&O liability insurance carrier and the attorney-director’s professional malpractice insurance carrier may deny coverage based on conflicting interpretations of the capacity in which the attorney-director acted or failed to act. (Note that typical malpractice insurance policies exclude coverage for claims arising from acts or omissions outside the scope of practicing law.)

Deputization issues. The dangers extend to the attorney’s law firm as well. If the attorney-director is serving on the board as a “deputy” of his or her law firm, the firm could be jointly subject to the same liability exposure as the attorney-director and any resulting liability would probably not be covered under the firm’s malpractice policy—a potential nightmare to all concerned.

Agency issues. In certain circumstances, a court might hold a law firm liable for the ongoing acts of an attorney-director (e.g., if it can be shown that the attorney-director’s business is the law firm’s business and that the attorney-director is acting within the scope of his or her authority from the firm). To eliminate this risk, attorney-directors should clearly communicate to the company and the board of directors that, when acting in their capacity as directors, they are acting individually and not as agents of their law firms.

Before you join a corporate board, learn more about the potential conflicts involved in CEB’s Organizing Corporations in California, chap 1.

12 Essential Steps Before a Cross-Examination

12 Must-Do Tasks Before Cross-ExaminationFew attorneys have the time or budget to do detailed preparation for cross-examination of every witness.

And even if the budget makes it possible, time spent on other aspects of trial preparation will force counsel to take shortcuts. When time is short, these 12 tasks are the bare minimum necessary for cross-examination preparation.

    This material is reproduced from the CEBblog™, 12 Must-Do Tasks Before Cross- Examination, (http://blog.ceb.com/2015/05/11/12-must-do-tasks-before-cross-examination/) copyright 2015 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).


  1. Read the deposition of the witness to be examined. Skim over disputes between counsel and routine background material, but read line-for-line all substantive sections of the deposition. Place in the witness file the three or four pages of deposition that are central to the proposed examination.
  2. Place in the witness file the documents that must be discussed with the witness. There have been few cases tried that had more than ten documents critical to the jury’s decision. Pick those ten (or fewer) and let the opponent concentrate on the other ten thousand documents.
  3. Make notes of your thoughts during document review. During review and coding of the depositions, exhibits, and other documents, many valuable ideas will occur to you. Jot them down to insert later in the trial or witness file.
  4. Develop a simplified chronology of the case. To control the case, it’s vital to master the chronology. If there are numbers, names, technical points, or dates that are difficult to remember, make a memory aid list and use it as a prompter during trial.
  5. If possible, personally prepare the chronology and issue coding. Nothing helps memory more than doing the detail work yourself.
  6. Get familiar with cross-examination references. If the cross-examination will refer to a locality, object, or document, become familiar with it (e.g., visit the suite of rooms where a contract was drafted, look at the counterfeit bills seized by the agent to be examined).
  7. Forget about interrogatory answers and responses to admissions. It’s hard to use these discovery responses smoothly during an examination. The witness will usually testify consistently with his or her earlier interrogatory answers or admissions, making the discovery material superfluous.
  8. Block out the proposed examination by topic only. For each topic, keep in mind the two or three major themes to make with the witness. If you’re unable to master the details, don’t forget to keep coming back to those main themes.
  9. Give the jury the documents. Make sure that the jury can see the two or three documents that you reviewed in detail with the witness, while the witness is testifying about them. The jury will get restless if it can’t see the document that’s being discussed.
  10. Mentally review the main evidentiary points (including objections). Refer to the Evidence Code as necessary. Psychologically prepare for surprise answers and hostile rulings from the trial judge.
  11. Review for riskiness. Be sure that the proposed examination doesn’t require taking undue risks with the witness, but consider whether some risk-taking is necessary to win a difficult case.
  12. Prepare your witness folders. Put the witness’s deposition transcript, your blocked-out areas of examination, and the key exhibits into a folder labeled with the witness’s name.


When trial is not imminent and you have the time to spare, do yourself a favor and review all the practical tips and suggestions on preparing to cross-examine in CEB’s newly updated Effective Direct and Cross-Examination, chap 3.

4 Tips on How to Be More Assertive in Settlement Negotiations

4 Tips on How to Be More Assertive in Settlement Negotiations

Acknowledge the role, however small, that your client had or may have had in causing or worsening the problem

One of the key components of the opening phase of a negotiation is articulating your client’s intentions, needs, and hopes regarding a settlement. You can strongly assert your client’s point of view in a way that also fosters an atmosphere conducive to settlement.
Here are 4 tips for putting your client’s needs out front while moving toward a negotiated settlement:

  • Be firm but flexible. Avoid using terms such as “no” or “never.” Instead, try to use other expressions that will keep the other side’s expectations in check but still convey optimism and possibility, e.g., “maybe,” “possibly,” and “unlikely, but.” Note that a willingness to be flexible doesn’t compromise your professional duty to act as a zealous advocate of your client. Flexibility is in your client’s interest because it gives you room to craft a solution that will be sellable to the other side. It’s not inconsistent to be firm about what’s important to your client and to remain flexible about the details of how your client’s needs are satisfied.
  • This material is reproduced from the CEBblog™ entry, 4 Tips on How to Be Both Assertive and Effective in Settlement Negotiations, (http://blog.ceb.com/2015/04/10/4-tips-on-how-to-be-both-assertive-and-effective-in-settlement-negotiations/) copyright 2015 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).

  • Avoid making judgments. When the dispute that gave rise to litigation is highly contentious, it’s easy to make judgments about one side’s conduct or character, or to make statements that appear accusatory or defensive. Mitigate this tendency by avoiding judgments of the other side in favor of subjective descriptions of your client’s experience, and by disentangling the intentions behind words or conduct from the impact of those words or conduct.
  • Emphasize your client’s interests, not positions. At the outset of the negotiation, it’s wise not to start with a particular position such as “My client needs at least $100,000 to settle this case.” Instead, emphasize what motivates your client’s position.
    • Why does your client need $100,000?
    • Is it important to your client to have enough financial resources to honor other contractual obligations?
    • Does your client seek some kind of insurance against future breaches by the same party?
    • Is it important that your client feel respected or receive some acknowledgment or apology for the breach?

By getting to the root of what is important to your client, you can demonstrate flexibility about outcomes. Revealing your client’s motives and underlying interests early on in the negotiation may leave your client exposed. Nonetheless, expressing your client’s desires and aspirations for settlement in terms of primary concerns—i.e., what is most important to your client—is typically a more fruitful strategy than issuing a narrow or specific demand.

  • Avoid extreme contentions. When it comes to human interactions, sweeping conclusions and absolute judgments are extremely difficult to support. Instead, try to embrace the multifaceted aspect of every human interaction and acknowledge the role, however small, that your client had or may have had in causing or worsening the problem.


Because most cases settle, you need to have the strongest negotiation skills possible. Get practical advice for all stages of settlement negotiation in CEB’s California Civil Procedure Before Trial, chap 46. Also check out CEB’s program Overcoming Settlement Impasse, available On Demand.

5 Elements of Opposing Motions in Limine

This material is reproduced from the CEB Blog™ entry, Be Ready to Oppose Motions in Limine, copyright 2014 by the Regents of the University of California. Reproduced with permission of Continuing Education of the Bar – California. (For information about CEB publications, telephone toll free 1-800-CEB-3444 or visit our Web site, CEB.com).


In limine motions are a great litigation tool—they get evidence admitted or excluded before it’s even offered. You’ve probably been advised to use them whenever appropriate. But opposing counsel will also have received this advice and will use them against you. Here’s how to respond to opposing counsel’s in limine motion.

When confronted with opposing counsel’s in limine motion, first analyze whether they have included these five elements:

  1. Counsel’s intention to move in limine to either exclude specified evidence or establish the order or presentation of evidence (e.g., to require the plaintiff to present direct evidence before circumstantial evidence).
  2. Counsel’s reason for believing that you have the evidence and will offer it at trial.
  3. Specific ground for excluding evidence (e.g., that it violates the attorney-client privilege (Evid C §§950-962) or will unduly prejudice the jury (Evid C §352).
  4. Why it’s insufficient to object at trial (e.g., the jury shouldn’t hear the question).
  5. Legal argument supporting the motion.

 

Be prepared to show that the court shouldn’t grant the motion or that opposing counsel hasn’t complied with the procedural requirements. If the opposing party’s motion in limine is in writing, ask the court for permission to prepare a written opposition to the motion.

Here’s what happens if court grants the opposing party’s motion:

  • The court may prohibit you from mentioning or referring to the excluded evidence at any time during trial, including voir dire, opening statement, examination of witnesses and closing argument.
  • The court may require you to instruct witnesses not to refer to this evidence during testimony.
  • If the court order is either in writing or recorded in the minutes, the issue is preserved for appeal and the court will be able to hold you in contempt if you violate the order.

 

If the court decides to take the motion in limine under submission or indicates an inability to decide the issue until hearing further evidence, opposing counsel may request an interim order prohibiting you from referring to challenged evidence until the court has ruled on its admissibility.

Experienced judges, when confronted with motions in limine, are generally aware that by the time the issue comes up during the trial, the entire case may have taken on a very different perspective than it had at the outset. As a result, you can expect the judge will make all rulings on in limine motions conditional, reserving the power to revisit the issue should there be a new or unexpected development in the course of the trial.