Don't be court out

From fast food to Seinfeld, we have seen the impact of North America on our lives in the UK. Even the legal professional in this country has not been immune, as evidenced by the fact that many concepts of the recent Woolf reforms of the civil court procedures were adopted from the practices and procedures of the US state and federal courts.
Litigation technology is at its dawn over here and one thing is for certain, it is not going away.

Why are we so certain? Because it has already revolutionised the practice of law in other countries such as the US, creating a billion-dollar industry. On a historical timeline, we now have many of the opportunities that existed in the US 10 years ago without any of the competition that exists there now.

In a recent survey of general counsel at Ftse-100 companies, 80% of the heads of legal at companies say electronic litigation services are useful, yet only 13% of the legal departments interviewed said they had been consulted by law firms over IT strategies. So why is it such a major industry in the US, but under-utilised in the UK?
Litigation technology, in its broadest definition, is any technology that assists the litigation process. Therefore, all of us have already been using some aspect of litigation technology for decades – online legal research such as Westlaw and Lexis are clear examples. The truly innovative litigation technologies, however, are of a far more defined class:

discovery/case management; case analysis; and trial presentation softwares.
The first step in the discovery/case management software is the digitisation of each page of each document. That is, each document will be scanned into a database in a format that is the equivalent of a photocopy. This will allow the user to view the actual document on screen.

Finally, each document will be loaded in such a way that the user may search the full text, allowing the user to undertake what is called an optical character recognition (OCR) search. OCR software converts the scanned photocopied image into a text file so that the letters and words in the text of each page of each document can be recognised and, therefore, searched by the computer. By utilising such software, the lawyer can search the database for necessary information in the fraction of the time of traditional methods. For example, a search could be performed to locate all records authored by John Doe and sent to Mary Doe.

The OCR search is unfortunately not 100% accurate as it depends upon the quality of the original scanned documents so that if the document is in a poor condition or there is mistyping of a word or phrase the search may not be complete. OCR searches are also ineffective when dealing with handwriting, graphs and drawings, but not figures. In order to effectively search handwritten notes or documents, the authors’ practice is to have a typed transcript scanned in alongside the original document.
However, new software on the market is allowing the user to undertake what are called ‘fuzzy’ searches that identify words and phrases similar to those being searched for. The results can be printed so that in a matter of a few minutes, several hundred pages of documents in, say, chronological order, or those authored by a particular individual, can be produced. This is a great saving in the preparation of the schedules for lists of documents and the products referred to in those schedules.

The scanned image and OCR capabilities are by themselves usually insufficient and what is required to support them is a separate text database. That database contains a number of fields, which can be specifically designed for the case or matter in question. Many of these fields can be completed, such as author, date, type of document and when the documents are being scanned. But other fields have to be completed by lawyers. Nevertheless, by undertaking word and phrase searches of this database, as well as the results of OCR searches, the lawyer is able to capture almost 100% of the data contained in the scanned documents.

The advantages of using a document management system, particularly in large cases, is self-evident. Fewer lawyers and legal staff are required for the collation, storage and management of documents, meaning lower fees being submitted to clients.

Document management also helps the lawyers’ consideration of the case because it uses the systems to co-ordinate and highlight the issues or the facts that should be adopted in pursuing the case. For instance, the authors regularly use the searches to place all of the documents received, whether from the clients or the other parties, in chronological order to ascertain the history and development of the case from various perspectives.

Case presentation software is really quite simple. After the case is ready for trial and the lawyers have distilled the numerous documents produced during discovery to the necessary documents required for trial, each of those documents (in their electronic format) will be loaded into the case presentation software.

The software then allows the lawyer to access each document by using a barcode and handheld scan gun. At trial, when the lawyer wants to present to the court and witness exhibit one (for example), a computer operator would simply scan the bar code for exhibit one, which would then be displayed on monitors and projection screens around the courtroom. The trial lawyer is then able to zoom in on relevant paragraphs and highlight relevant language within the documents.

The process of accessing the document takes approximately one second and eliminates the need to fumble through hard-copy documents, hoping and praying that judge and witness alike are all on the same page. Even more impressive is that the trial lawyer is also certain that everyone is focused on the precise language being discussed.

Examples of these products are Trial Director by inData Corp and Ipro by Ipro, Inc.
There is nothing quite as impressive, not only to the trier of fact but also to the clients, as dimming the lights at the beginning of a hearing, rolling out the screen and presenting your case, including the examination of witnesses, using electronic images thrown up on to the screen.

By utilising the software that we have highlighted in this article, lawyers are able to provide a much more streamlined, efficient and cost-effective service to their clients, particularly in those cases that are large document matters. While we are using these systems described to present our clients’ case, the other side, in our experience, is employing a group of lawyers to collate and present their documentary evidence which is usually prepared using what they consider to be state of the art equipment, namely an overhead projector.

But identifying and purchasing the software is just the beginning. To enjoy the benefits of litigation technologies such as discovery, case management and case presentation software, the legal advocate should become knowledgeable of its abilities and trained in its functions.

Many lawyers in the US have made the error of assuming that litigation technology is something the IT department provides. Your IT department will definitely have a role to play but however good they are, unless the lawyers have an understanding of the products and are properly trained, litigation technology will hurt more than help.

As courts, panels and clients alike begin to recognise and demand the benefits of litigation technology, we, as litigation lawyers, will stand at the beginning of a new standard in advocacy and trial preparation in this country. The question remains: will we let ourselves be passed by with the intimidation of technical mumbo-jumbo or will we engage in the market research and understanding to improve the value and product we offer to our clients? Clients are now demanding new technologies not only on a costs basis, but also because it gives them more involvement and control over their cases. In the authors’ experience, having utilised these systems in case preparation and hearings, we know the clients’ response.

Steven Blair is a partner in the London office of Bryan Cave. Matthew Browndorf is an associate in the firm’s commercial litigation practice, based in the New York office.