What is evidence? I won’t quote Black’s Law Dictionary or McCormick on Evidence, partly because I boxed mine when online legal research made my library obsolete, and because my well-thumbed copies inhabited a time when evidence was largely a thing or statement. We examined things. Witnesses made statements. After law school and apart from the occasional trial, lawyers rarely reflect on the nature of evidence. Like pornography, we know it when we see it. But with electronic evidence, we hardly see it anymore. No longer can we open a file drawer and wade in.
Now, we rely on experts and technicians using searches and filters to troll roiling oceans of data and process the catch of the day. By the time lawyers “see” electronic evidence, it’s frozen fish sticks and canned tuna. Sorry, Charlie McCormick, 21st century lawyers don’t go near the water.
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