Lightening litigation

Electronic case presentationAre we on the brink of a new era with the way that litigation, including arbitration and alternative dispute resolution, will be handled in the future thanks to the IT revolution? Increasing demands by litigation lawyers are being placed on IT departments for new and better technology within the practice of law.

From automated voice dictation to desktop scanners and fax products, IT departments have many challenges. The latest however, may so dramatically change the way cases are prepared and tried in UK courts that law firms unable to cope with the demands of their litigators will be second choice to those firms capable of understanding and embracing the needs of a techno-savvy litigator.

Litigation technology is at its dawn in the UK and one thing is for certain, it is not going away. Why am I so certain? – because it has already revolutionised the practise of law in other countries such as the US, creating a billion dollar industry. In the UK you now have many of the opportunities that existed in the US 10 years ago without any of the competition that exists there now.

Let there be no surprise then that these techno-savvy litigators will be knocking at the door of their favourite IT office shortly. Will you be ready? Will your firm be ready? Will your practice be ready? To help you prepare, a thorough description of what is on the horizon and how to cope is in order.

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. These technologies are: discovery/case management and trial presentation software.

Discovery/case management software operates in a database structure associating each document from a particular case in .tif and OCR format with a record in the database. The structure allows the user to code each document with vital information such as document date, document author, document type, while permitting viewing of the .tif image and full-text searching of the associated OCR text file. The lawyer and legal assistant alike will utilise the database from instruction through trial. Unless you have a single lawyer firm, you will also need to network the software and data.

The software network could come in two forms, external or internal. An external version is best operated through a third-party vendor running an ASP (application service provider). The ASP will typically have their own version of discovery/case management software. Lawyers would collect and divide the documents then send them to the ASP for scanning and optional coding. It is imperative that specific instructions be given; otherwise, you get what you are given.

Outsourcing the process has many advantages. For starters, it is outsourced. You send the documents off and next thing you know they are on the internet and anyone – including the clients – anywhere (with the appropriate security clearance) has instant access to all the data and documents that form the case. However, there are downsides.

The providers are new to the UK and it is more than likely that you will be shipping documents to the US where these services have established. In addition, they usually charge a monthly service fee that can run as high as £2,000 per month, per case. Unless you stick with the same provider for all of your cases, you will be learning new software for each provider because they all have their own proprietary twist on the database.

The internal version is the Bryan Cave preferred choice, but it too is not without its problems. Internally, you would first select a software. Examples are iBlaze, by Summation Legal Technologies, and Concordance, by Dataflight Software. Next, you need to establish a proper network protocol. The worst thing you can do is have a great tool for litigation that no one can access.

Accordingly, how we access the database and the speed with which we do so are critical decisions and can be a major problem depending on your network. For example, if you operate an international law firm utilising a hub and spoke network, access to the database by multiple offices can only be accomplished in two ways. First, you can use Citrix (or an internally-owned ASP alternative). Load the database and all data at the hub of the network and nowhere else so that speed is maintained. Users access the database via Citrix (or an internally operated ASP) from whatever office or external location they are at. Alternatively, load the database in each office. The problem with this alternative is obvious. No multi-office case work can be done owing to wide area network (WAN) speeds and network configuration. Further, synchronisation is almost impossible to keep up with. Simply put, forget about it.

Server space to store the .tif images will also be a consideration owing to the size of multiple .tif images. It is perfectly appropriate to keep the application on an application server, keep the standard case data files on a data server and then keep all the .tif images on a separate data server. This allows a quick and efficient (nightly) back-up of the standard case data files while allowing the large .tif images to be backed up separately on a monthly basis. One should think in the 100 gigabyte size for a 10-person litigation section and permit archives of old cases onto DVD (or similar device). Having learned the hard way, RAID 5 should not be a substitute to backing-up data, even the .tif images.

The advantages of the internal version are many: consistency in the software utilised; no extra cost for the service once the learning curve is met; ability to utilise multiple scanning/coding vendors; and security and proximity of documents, removing the need to send documents to the US.

The downsides are that unless you provide a fast and truly multi-office enterprise solution on the network (whether it is Citrix, an internal ASP, or direct access outside the typical hub and spoke network) you might as well use the external version.

In addition, the software usually requires a load file that tells the software which .tif and OCR files form each document and populate each coded file in the database. For example, Summation is utilising a load file called .dii for loading the images. These files are a touch above the knowledge level of typical techno-savvy lawyers and require an IT skill set because the vendors will typically fail to path the images properly for the loading process, given the unique networks of each particular firm.

Once you determine how best to network the discovery/case management software, training will be essential. There are different levels of training that will be required. For starters, you will need to train partners at an executive level so that they understand what the software can do for them and what they can ask more junior lawyers to access for them. Vital at this level is explaining the abilities of the program to search and sort files and the format on which written reports will be produced and how to read them.

Understanding the benefits that litigation technology can offer the partners in a law firm is essential to its success. Otherwise, you end up with IT personnel who know the technical aspects of the product, but do not know why or how a litigator would use it and litigators who know what they need, but do not know how to make the software work for them.

Bridging this communication gap at the highest level will set the law firm up for a winning strategy in the implementation of litigation technology. Moreover, once a partner is familiar with the technology, it can become a great marketing tool for current and prospective clients.

Next, associates and legal assistants need to be trained on the functions and use of the software. It is critical that lawyers and legal assistants are the ones using the software and not the IT department. After all, we would not ask our IT department to review all of our client’s documents and render an opinion about which ones are relevant, would we? In this regard, associates and legal assistants should be trained on document selection and separation, vendor relationships, scanning, coding, searching and all the functions of a typical database. Such training will usually command two full days.

Finally, IT staff should be trained on database administration such as general maintenance, back-ups, security and networking availability. Training can be offered through various vendors that are certified by the software companies or, perhaps, you might be lucky enough to have a lawyer in your firm who really understands the products. Lawyer-to-lawyer training is the most effective because it bridges the communication gap between practising law and practising technology.

After training, incentives must be given to each lawyer to utilise the software on a day-to-day basis, even on small cases; otherwise, the knowledge will be lost. Further, by doing so, a true economy of scale will be noticed as efficiency from consistent use is realised.

With all that said about discovery/case management software, litigation technology would not be complete without preparing for the case presentation phase. Increasingly, UK courts are becoming impressed with the substantial time savings and efficiency that is achieved by presenting trial exhibits in electronic format throughout the courtroom. In July 2002, the Court Service’s In-Court Technology Judicial Advisory Group approved ‘A Guide to the Electronic Presentation of Evidence (EPE) at Trial’. Most notable, was paragraph 2.4, indicating, “An initial pilot trial using the technology demonstrated potential savings of up to 20% in trial time.”

So what will the litigators need now? Thankfully, not that much. Presentation software is no more than a fancy PowerPoint-style program that permits the user to scan in all the trial exhibits; access them by scanning a barcode with a handheld scanner; then highlight relevant portions of the document once they are on screen.

To do this you will need the software. Bryan Cave prefers a single-user licence, as the software will generally be used in a courtroom, arbitration, conference room or other forum. Examples of such software are Trial Director by inData Corp and IPRO by IPRO. The hardware is a little more complex. Although the courts in the UK aim to fit courtrooms with the necessary audio-visual equipment that will allow you to simply plug in your laptop, Bryan Cave’s preferred solution is outfitting yourself with a portable presentation system that enables you to setup anywhere, anytime.

What you need is a laptop, hand-held scan gun, external hard drive for the images, projector, projector screen, expand-a-view (this allows the VGA signal to be sent to multiple monitors and may also be substituted with the brilliant but expensive matrix box) and various flat-screen monitors. If you have all the peripheral cables necessary, you will be able to walk into any hearing a couple of hours in advance and prepare the room for your digital light show.

Planning issues to consider are: how you will get the equipment there; will your IT department set it up for you; and do you have an associate or assistant to operate the software while you are speaking?

There is nothing quite as impressive as dimming the lights at the beginning of a hearing, rolling out the screen and presenting your case, including the examination of witnesses, using images projected onto the screen. By utilising the software that I 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 which are large document matters.

While we are using these systems to present our clients’ case, the opposing side are busy 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 – an overhead projector.

Providing your litigation lawyers with both discovery/case management and case presentation technology now rather then later will truly put your practice and your law firm ahead of other UK law firms. Furthermore, the cost for such an adventure is surprisingly inexpensive as compared with other technology initiatives.

For certain, in 10 years’ time every litigation lawyer will be using litigation technology. Will you be one of the first or will you be one of the last to go forward and explore the future?

Matthew Browndorf is an associate in the New York office of international law firm Bryan Cave.