by Nicole Nuzzo

The transition from paper files to digital alternatives has revolutionized how law firms work. Now, everything is more efficient and accessible whether in the office or working from afar. Collaboration is easier, and law firms can store vast amounts of information without the clutter. It should not be surprising that the Orange County Superior Court is also interested in increasing efficiency, reducing clutter, and streamlining processes.

Through providing for the use of the electronic evidence portal, Orange County Superior Court First Amended Administrative Order 21/06 expanded the ways in which superior courts in Orange County would accept evidence at trial or hearing. Select courtrooms have been piloting this innovative way to share and present evidence since 2021. Currently, courtrooms handling probate, civil harassment and unlawful detainer, administrative appeals, and family law matters are utilizing the electronic evidence portal found at www.occourts.org/online-services/electronic-evidence-portal.

Effective January 01, 2025, it is expected that use of the electronic evidence portal in lieu of exhibit books will be mandatory in family law proceedings, subject to exception at the judge’s discretion. Orange County Superior Court Proposed Local Rule 714. The proposed rule also establishes procedures regarding sharing exhibits, presenting exhibits, and service of exhibits. It is also expected that a new mandatory local form will be available to those seeking to be excused from use of the portal. Id. It is anticipated that other divisions of the Orange County Superior Court will implement similar policies in the future.

As explained in prior articles written by this author and others, a lawyer’s competency and ethical requirements extend to how she handles electronic data in her practice. See Nicole Nuzzo, To Purge or Not to Purge: Retaining Client Files in the Digital Age, Orange County Lawyer, December 2018; Kristin Yokomoto, Ethical Duty of Technology Competence, Orange County Lawyer, October 2019.

As the practice of law continues to evolve, lawyers must remain competent in all aspects of the practice, including advancements in technology. This article explores the ethical obligations of attorneys practicing in divisions of the Orange County Superior Court where use of the electronic evidence portal is mandated or likely to be mandated in short order.

California Rules of Professional Conduct Rule 1.1 mandates that a lawyer practice law competently—that is, with the learning and skill, mental, emotional, and physical ability reasonably necessary for the performance of the retained service. Competency under Rule 1.1 includes the duty to keep abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology. Id. at Cmt. 1.

If a lawyer does not have sufficient learning and skill, a lawyer may nonetheless provide competent representation by either associating with or professionally consulting another lawyer whom the lawyer reasonably believes to be competent, acquiring sufficient learning and skill before performance is required, or referring the matter to another competent lawyer. Cal. Rules of Prof. Conduct 1.1 (c).

Resultingly, a lawyer who attends hearings or trials in a courtroom mandating the presentation of evidence via the electronic evidence portal must quickly get up to speed on the use of the electronic evidence portal before, during, and after her appearance. As the court continues to pilot the program, changes are likely. Staying on top of the current features of the portal will likewise be critical.

The importance of staying on top of the technological changes in the practice of law has been underscored by the California State Bar’s recent inclusion of a new mandatory continuing legal education topic. For the MCLE compliance period ending January 31, 2025, a lawyer must attend one credit hour of continuing legal education in the area of technology in the practice of law, which includes education on technology tools, programs, or applications to assist attorneys in their law practice. The State Bar of California’s Rules of the State Bar, Title 2, Division 4, Rule 2.72(c)(ii)(a)(iv).

A prudent lawyer should take immediate action to ensure she is competently practicing in the matters which she is handling by determining if the presentation of evidence electronically will be required of her and, if so, take the necessary steps to ensure she is competent in handling the matter prior thereto.

Steps to become competent in this area are likely to include signing up for the evidence portal and considering who will manage the account and receive portal notifications on behalf of the firm. In addition, a practitioner should review the video tutorials posted on the court’s website, review the published instruction manual, and prepare for in-court presentation of evidence. Instructions on all of this can be found on the Orange County Superior Court’s website, located at www.occourts.org/online-services/electronic-evidence-portal. A lawyer may also find it helpful and necessary to attend seminars on the use of the electronic evidence portal.

Most prudent trial lawyers develop a checklist for the day of trial. Now, that list should be amended to consider the lawyer’s needs when presenting evidence via the portal. Certainly, knowing the username and password to access the account is a good first step. Moreover, a trial lawyer should confer with the court clerk prior to the hearing in order to consider what technology is in the specific courtroom and what needs to be brought to court by the lawyer. Currently, at the Lamoreaux Justice Center, trial counsel can expect the addition of a court-issued laptop, HDMI cable, and switch box on each counsel’s table. Another noteworthy consideration is determination as to whether the judge will expect counsel to publish exhibits or whether the judge will control that process. The proposed local rule for family law contemplates that lawyers will be responsible for this; though, in practice this is not always the case. Orange County Superior Court Proposed Local Rule 714.

To consider all needs, a lawyer should also develop a contingency plan if technology fails, such as maintaining copies of exhibits on a USB Drive, maintaining an extra HDMI cable, knowing whether the lawyer’s laptop has an HDMI port (and if not, obtaining the necessary converter), taking at least one paper copy of exhibits to court, or other reasonable measures which will ensure precious court time is not wasted by technology failures, or worse—the exclusion of critical evidence due to failures on the part of the lawyer in knowing how to present evidence.

A lawyer should also plan on how she will take notes and review notes or outlines during trial. For example, is it feasible to have two laptops on the table? Will the lawyer use the court-issued computer or her own? If all exhibits are in the portal, where will she view and store her copy of exhibits (which most lawyers mark up in preparation for trial)? Each trial lawyer has her own specific way of operating and that will inevitably change now that use of the evidence portal is mandatory. Walking through the process(es) prior to the day of trial will ensure that the lawyer can adapt her trial skills to this new way of presenting evidence.

A lawyer should not forget that she likewise has ethical responsibilities for subordinate lawyers and non-lawyers. See Cal. Rules of Prof. Conduct 5.1 and 5.3. Supervising lawyers should train staff and subordinate attorneys in the use of the portal and established firm procedures. Supervising lawyers should consider changes in the firm’s procedure relating to pre-marking of exhibits, preparation of exhibit lists, tagging of exhibits, handling of impeachment evidence, confidential exhibits, real evidence, sharing/serving exhibits with both involved parties to the litigation and witnesses, preparation of trial notebooks, downloading and maintenance of exhibits at the firm, and maintenance of exhibits for appeal.

In the event a lawyer cannot gain sufficient training and skill in the use of the electronic evidence portal prior to the need to use it, a lawyer should seek to refer the case to competent counsel or otherwise associate with competent counsel. The use of trial technicians may also prove helpful as a lawyer navigates the use of the electronic evidence portal.

As 2024 comes to a close and we look forward to 2025, trial lawyers practicing in the Orange County Superior Court should ensure competency in the use of the electronic evidence portal through the above measures. Counsel should also stay tuned for continuing legal education opportunities on this topic and changes to the use of the portal as it evolves. All practitioners, irrespective of practice area, should continue to remain abreast of the changes in the law and its practice, including the benefits and risks associated with relevant technology, while also ensuring compliance with the new Mandatory Continuing Legal Education requirement in this regard.

Nicole Nuzzo is founder of Nuzzo Law, APC. She has been designated as a Certified Family Law Specialist by the State Bar of California’s Board of Legal Specialization and is a member of the OCBA Professionalism and Ethics Committee. She can be reached at Nicole@nuzzolaw.com.