Deanna S. Gilbert on why digital evidence must support — not supplant — persuasive courtroom advocacy
This article was produced in partnership with Thomson Rogers LLP
“How could it be she just didn’t see?” That was the question at the heart of a motor vehicle accident jury trial last year, where the defendant driver claimed the plaintiff had cut her off and rode his bicycle directly into her car. Deanna Gilbert and her partners at Thomson Rogers LLP, Darcy Merkur and Daniel Klein, counsel for the plaintiffs, had questions: Even if the plaintiff rode his bike towards the car, why didn’t the driver swerve? How could she simply not see the cyclist coming towards her, a lane over, from by the curb?
Both sides hired engineering experts who testified at trial, but the answer wasn’t buried in complicated data from cutting-edge technology. It was spotted by the plaintiffs’ team during trial prep: an innocuous police photograph of the scene, the defendant’s BMW convertible parked with the top down, and beside the BMW, sitting on the curb, the defendant herself — wearing an oversized, floppy, wide-brimmed sun hat.
“We blew up that photo and kept it in front of the jury as much as possible; it became the theme of our case,” Gilbert recalls, noting the lawyers kept rhetorically asking the jury, “how could it be she just didn’t see?” throughout their opening statement and closing argument.
“Each time we’d point to the photo, and we didn’t need to spell it out for the jury. They knew how she couldn’t see. The picture said it all.”
Gilbert’s MVA case is illustrative of the two foundational tenets of her practice. First, to present a well-rounded case it’s critical to have a clear theme — especially for a jury trial — and it must remain at the centre of the proceedings. Second, while there are increasingly sophisticated forms of technology, “you don’t always have to get into the weeds,” Gilbert says.
When it comes to proving liability, there are plenty of opportunities to leverage technology-driven evidence. Dash cam footage, surveillance cameras from homes and businesses, traffic cams, and videos captured on cell phones all play a role in painting a complete picture. Even online news reports can offer valuable video evidence from the scene. Gilbert points to the rise of police body cameras, especially in cases involving intoxicated drivers, where seeing and hearing the defendant at the scene can be decisive.
Audio files, such as 911 calls, can reveal whether a driver was slurring or confused, while cell phone records can help reconstruct events leading up to a crash. For collisions in remote areas, Gilbert relies on satellite imagery from Google Earth to uncover critical details — like road warning signs such as “stop sign ahead” — that might otherwise go unnoticed.
She also recounts the use of cutting-edge options, such as the Wayback Machine. The Wayback Machine is a website in-and-of-itself that can display historical website content, even if that content has since changed and appears differently in present day. Gilbert encountered the Wayback Machine in an informed consent trial, whereby it was used in an effort to establish what the Plaintiff would have learned about the risks of his proposed treatment from a certain website to which he was referred by the physician proposing the treatment.
As technology evolves, so do the ways it can be used in court — but sometimes, the simplest evidence speaks the loudest. Don’t overcomplicate it. Digital photographs remain among the most important, accessible, and straightforward types of technology. As the adage goes, a picture is worth 1,000 words.
While hard data much of the time is the most accurate and reliable evidence, it’s not always the most persuasive or digestible. It can involve a lot of technical jargon and require deep analysis, even complex math calculations that can be hard for a jury to understand.
Gilbert still sees plenty of value in traditional witness testimony for that reason, pointing out that while the airbag control module will give you the exact speed, communicating that to a jury requires a police officer to get into a lot of detail about what the technology is and how it works, “and ten yawns later the jury gets the point,” she says.
But get a bystander on the stand who testifies that the defendant driver was “driving like a bat out of hell, revving the engine and passing everyone,” and it paints the picture more efficiently and effectively.
“You want all triers of fact to have seen it, heard it, or experienced it themselves and that’s where tech can go awry,” Gilbert says. “Create a case that’s easy to understand, cohesive in its theme, and relatable: you’ve got to consider whether tech supports it or undermines it. In other words, the technology dances around the theme and not the other way around.”
One of the main hurdles to using tech-derived evidence to establish liability is getting your hands on it in a timely manner. Footage can be set for manual override, for example, and by the time counsel is retained and notice letters are sent, it can be too late. Another issue is accessing related police files. It simply takes too long, and that’s a problem, Gilbert notes.
If a charge is before the court, personal injury lawyers can’t have the full police file until those charges have been disposed. And that doesn't just mean a trial and guilty verdict: it means the entire appeals process is finished or the time to appeal has elapsed. Even when the charges are finally disposed, there are long wait times, but there is a rumour about an overhaul to the system.
“I'm hearing there’s movement on a streamlined process for counsel to get unredacted police files, without lengthy, time-consuming motions that take months to produce the files,” Gilbert says, who would welcome the change. She has a lot of fatality cases in her portfolio, including a stabbing case from Halloween of 2019 for which she still doesn’t have the police/Crown file due to appeals.
Privacy laws are another barrier, preventing personal injury lawyers from getting certain things without proper authorization. Some entities — such as cell phone companies — hold that data close to the chest. If there are no estate trustees or powers of attorney (often the case when the deceased is a young person), it’s hard to get the necessary records without going through the court.
But Gilbert reiterates that supporting data can often still be critical when it comes to providing context for any technical evidence. She gives the example of black box data showing the defendant was driving at the posted speed limit of 100 km/hour before the collision. Not speeding? Not so simple, Gilbert explains, if there are witnesses who will testify that the road was icy, visibility was poor, and the flow of traffic was going at half that speed.
“It's very easy to say I’ve got the tech, the hard data, it’s the best evidence, that's it — but you need corroboration and context, some of which might be easier to digest for the trier of fact,” Gilbert says. “You never know what a juror or judge will hang their hat on.”
Ultimately, personal injury lawyers should be mindful of tech — what exists, what might exist, and how it impacts the case they’re building — and know how to properly use it.
“A persuasive and cohesive case on liability is built with several blocks,” Gilbert sums up. “Some may stand taller than others, and hard data might fall under that category, but the smaller blocks are still necessary for support.”
