Time to blow our own trumpet

There were two main themes to Matthew Browndorf’s article on litigation technology in the November/December 2002 issue of Legal IT. The first is that the latest challenge to IT departments “may so dramatically change the way cases are prepared in the UK courts that law firms unable to cope with the demands of their litigators will be second choice”. The second is: “Litigation technology is at its dawn in the UK…”

We agree that there are certainly challenges ahead and any law firm that cannot meet them will lose out. However, we do not consider that litigation technology is at its dawn in the UK.

The latest statistics and our own experience indicate that the UK is more advanced. One survey in July 1999 on the use of litigation support systems found that 92% of respondents had submitted documents to an opposing solicitor in electronic form. In the intervening years, we would have expected usage, if anything, to have increased. That is certainly Lovells’ experience.

Lovells’ first foray into this field was more than 15 years’ ago with BRS, a text-based database system. As our needs became more sophisticated, and as the market changed, we arrived at our current product, JFS Litigator’s Notebook, which is an image-enabled database based on the Lotus Notes standard.

Our belief in litigation support was such that we created a dedicated department to look after our software and users. The extensive experience of the department means that we can support a wide range of products, from Concordance through to Introspect and Ringtail, in addition to our standard litigation support software.

Along with many other UK law firms, we have been active in the promotion of technology in litigation and we have taken part in Legal Tech and initiatives such as the Courtroom of the Future and presentations for the London Solicitors Litigation Association (LSLA). Speakers such as Janet Day are regulars on the seminar circuit explaining Berwin Leighton Paisner’s use of technology. Richard Susskind is also well known in both the UK and US as a speaker on the future of the law and its use of technology in particular.

Current UK experience

You need only visit the Methodist Central Hall in central London to view the latest technology at work in the Bloody Sunday inquiry. This is a shining example of the appropriate and creative use of technology.

The inquiry uses, among other things, LiveNote, a computerised transcripts system. All the court bundles are scanned and displayed on desktop monitors or on larger overhead monitors for court visitors. Most impressive of all is the inquiry’s use of a three-dimensional computer model to recreate Derry as it was in the 1970s to refresh witnesses’ memories. The use of technology allows interested parties in Northern Ireland to witness the proceedings in London almost as fast as the press in the gallery. None of this would have been possible without the use of technology.

The Bloody Sunday Inquiry is not an isolated example of the use of technology; other examples include the Maxwell case and the Shipman inquiry.

The courts’ view

The courts are aware that technology can be used to make the legal process more efficient by speeding up proceedings and by clarifying the issues. On one of our recent cases, as the statement of case alone reached 1,000 pages and was still growing, we were instructed by the judge to use technology to make the process of navigating through the documentation easier. We developed a hyperlinked bundle produced in Adobe Acrobat PDF format that contained 11,000 hyperlinks and 10,000 pages of information that could be circulated on a compact disc. Although produced two years ago, the disc is still in use today. On one case, before either party had even broached the idea of using technology, a senior judge indicated that technology should be employed.

The courts in the UK are working hand in hand with Courtroom 21 and Professor Fred Lederer in the US to develop initiatives that are likely to assist the Court Service and court users in developing systems designed to improve the efficiency of the court and integrate with the litigation support systems used by practitioners in the run-up to trial.

A ‘virtual reality court’ pilot scheme has been set up as part of the Government’s programme of reform of the criminal justice system to enable defendants in certain preliminary hearings to e-mail the judge with guilty or not guilty pleas. The new scheme, launched on 9 October, 2002, is designed to cut down criminal court waiting lists and remove the need for defendants and their lawyers to attend court in certain specified instances.

The Technology and Construction Solicitors Association has developed a protocol regarding the use of IT for cases heard by the Technology and Construction Court which is now in its second edition.


Since the evidence proves that the UK is actively using technology in the litigation context, why does Browndorf reach the conclusion he has?

One possibility is that the technology is used in a different and possibly more visible manner in the US than in the UK. Indeed, unlike the UK, the typical case in the US takes place in front of a jury and the use of technology is undeniably a good way to explain difficult concepts in an accessible format.

We have seen this to good effect in the UK at a complex fraud case which took place before a jury. All parties used a litigation support system, LiveNote and TrialPro (a system that hosts images on screens). This appeared to be an ideal way in which to present complex information in a simple format.

However, because of the role of the jury and the complexity of the issues, this case was somewhat exceptional in the UK. Normally, the role that technology plays, although important, is more subtle and behind the scenes.

In addition, it is clear from Browndorf’s article, that a US attorney is able, without reference to or agreement with their opponent, to use technology in the courtroom. The use of technology is viewed as just one more weapon in the lawyer’s armoury to be used against the opponent to gain an advantage. This could not occur in the UK. If attempted, it could be argued that it would put one of the parties at a material disadvantage and would therefore limit their access to justice.

A second explanation is the different way in which the US and UK markets have evolved due to their inherent differences. The size of the US market dictates that home-grown products are, unsurprisingly, developed with the domestic market in mind. As a result the UK comes a poor second in influencing the evolution of products used within the US. Consequently, when US firms go shopping for products they tend to confine themselves to the US market where they will be able to buy products designed for the way they practise law.

Shopping for new products is different for UK firms since so few products are UK generated. Thus, UK firms have no option but to shop worldwide and look for ‘best of breed’ products. We believe this is why products such as Ringtail, which is an Australian product, have a greater market penetration in the UK than the US.

Size is everything

A further differentiating factor between the two countries is the depth of use of technology. This is a reference to the fact that, unlike the UK, in the US it is not just the large, complex cases that are deemed suitable for the use of technology.
In the UK, due to the significant investment in backroom systems that are necessary to host litigation support systems, cost considerations have acted as a real constraint on the acquisition of litigation support systems. However, the arrival of internet-hosted databases that can be shared between all parties, along with the costs will, in practice, give smaller firms much greater access to this technology.

In addition, access to an application service provider (ASP) will make it unnecessary for the law firm to acquire the backroom systems at all since both the backroom system and the litigation
support technology will normally be hosted by a third party. Admittedly, we are still in the early days of this type of support and it remains to be seen how far these services will ultimately penetrate the

However, there is to our knowledge at least one litigation support system which is available in the UK on this basis and which does not involve the shipping of any documents to the US. All services are provided in the UK.

Many law firms, including Lovells, are effectively working as ASPs when providing technology to their European operations.

The new challenges

The UK has, and continues to, embrace technology in the litigation context. But what are the technology issues that currently require attention?

Traditionally, the exchange of documentation even in its simple paper-based format often becomes a bone of contention. Add the dimension of exchange of information in an electronic format and the whole area can become a potential minefield. If implemented without proper planning and the appropriate use of the technology, electronic data exchange will normally lead to duplication of data, increased conversion costs and frustration all round. To counter these problems, on many of our larger cases we have used data exchange agreements that set out in advance precisely the format required and what is to be supplied to each party for their individual litigation support systems. In addition, we settle on a single, neutral bureau to reduce conversion costs as the bureau scans and codes the data on behalf of all parties. The implementation of a data exchange agreement as soon as possible on a case means that a case can be fought on the law not on issues of technology.

The next major issue on the horizon is electronic disclosure – but that is an article in itself.

The British (and the Australians) are coming!

A number of non-US developers are actively seeking to break into the US legal technology market with their own products. The most successful of these products is probably LiveNote, the computerised transcript system, which is supplied by Smith Bernal. The company is based in London although the product was developed in Australia.

Another British product is Briefcase which has been developed by Sellars Legal Services. The idea behind this product is that at the end of a day in court or arbitration, not only can the parties leave the proceedings with the transcript but also, in an electronic form, any documentation that has been referred to on that or any of the previous day’s proceedings.

In conclusion, we think the UK litigation technology market is being sold short both in terms of its extensive use in the domestic sphere and in terms of its gathering influence in the international market. Watch out, Uncle Sam, the Brits are coming!

Bill Onwusah is manager of Lovells’ litigation support department. Serena Cobley is Lovells’ litigation support lawyer.