Putting litigation support on trial

Julian Baker

Although great strides have been made to accommodate litigation support technology in court rooms in recent years, a much greater and wide-ranging take-up is needed for its full potential to be realised, says Julian Baker

‘The use of such systems will, in any event, soon be expected by clients with any degree of IT sophistication.’

This statement in relation to litigation support systems was made in 1996 by Lord Woolf in his report, Access to Justice. One of the key aims of this report was to reduce the costs of litigation.

Although many clients do now expect such technology to be used, there needs to be a much wider adoption of this technology by lawyers and significant technological advances within the court service, if the full potential of it is to be realised.

A lot has changed since the case of CDC v IBM in 1971 legitimised the use of technology in supporting litigation. In that case approximately one million documents were scanned onto microfiche and indexed into a mainframe database by a team of 120 paralegals. As the technology has evolved, so has the perception that litigation support technology is only applicable to matters where there are very large quantities of documents to be processed or where information in documents has to be identified and extracted rapidly.

Litigation support technology has moved beyond the basic indexing of documents and there are now an array of technology tools available which can be used to assist litigators in preparing the case for court and in the courtroom itself. This technology can be applied to cases across the size and complexity spectrum.

Potential costs savings and efficiencies mean that clients will come to expect the use of this technology as an industry norm. Judicial and government imperatives to modernise the civil courts, partly through the adoption of effective technology, further mean that the penalties for firms that do not make effective use of this technology could be significant.

Pre-court technology

Imaging and indexing systems

Traditionally litigation support software has been built around a structured database/file system which is used to index documents. The indexing is usually a combination of objective or bibliographic information (e.g. type of document, date of document, sender, recipient etc) and subjective indexing (e.g. which issues the document relates to).

The range and type of information indexed is customisable and built around the case in hand. Depending on the quantity of documents, the urgency of the case and the size of the firm conducting the case, the indexing may be carried out by in-house staff or outsourced to organisations that maintain large banks of paralegals specifically for this purpose.

Indexing will generally be accompanied by scanning the documents so that the documents can be viewed on screen, annotated electronically and shared electronically with other interested parties without the need to print and distribute expensive paper copies.

Optical character recognition (OCR) has now reached the point where there is still a small margin of error, but where it adds significant value in terms of being able to search the full text of any typewritten document which has been scanned in.

An interesting development is the use of artificial intelligence-based software to automatically identify common themes and concepts within a large quantity of documents with only a minimal amount of information being indexed manually. This can also be used to overcome problems with OCR accuracy, to eliminate the need for a manual check of OCR results and potentially to eliminate the OCR process entirely.

Products such as Autonomy and the LexisNexis/ Dolphin search solutions enable full text concept searching by automating the categorisation and cross-referencing of information. They employ advanced pattern matching technology to extract the digital characteristics which give a document meaning and are able to relate documents which have similar meanings. As they do not rely on keywords they can work across languages and some even work with other media (e.g. videos, images and audio recordings).

Generally, it will still be desirable for a lawyer to personally review each document at least once, but systems of this nature can identify issues and areas of concern much earlier in the process.

An interesting use of this technology is to assist the identification of possible legal and commercial conflicts, which may not be immediately obvious, from a large batch of complex documents. Linking these systems into other information feeds, whether within the law firm or externally, can further help this process.

The indexing and imaging process represents a considerable up-front cost at the start of a matter, but the potential savings and benefits further down the line are significant. Litigation support systems generally become uneconomic to deploy at the later stages of a particular matter, due to the time and effort which has already been expended in manually reviewing and indexing documents. This, of course, leaves the dilemma of whether to invest up-front in the use of this technology if there is a chance that the case could settle early.

There is an emerging trend to use litigation support systems which are hosted by specialist companies and accessed securely over the internet or another network connection. The investment required to equip a law firm with a litigation support system is substantial and the ability to effectively rent a system for the duration of a case, with someone else looking after the maintenance and support of it, is very attractive for many firms. It also tends to be charged for via a fixed monthly cost, based on the number of documents involved, which is more easily charged back to clients as a disbursement.

E-discovery

With more than 90% of business records originating in electronic form and at least 30% kept only in electronic form, the task of discovering and utilising this information is big business in the US and is becoming so over here.

The electronic version of a document or an e-mail contains a lot more information, some if it hidden from ordinary view, than its paper equivalent. This makes the electronic version richer and more valuable than the paper copy. E-discovery is about finding electronic documents, extracting the maximum amount of information from them prior to feeding the information gathered into a more traditional litigation support system where it can be indexed, searched, exchanged and manipulated. E-discovery is generally a prerequisite for e-disclosure.

For example, many word processed document files effectively contain a history of the document in terms of who has worked on it, what changes have been made, what previous versions looked like and what has been deleted. This information is hidden from ordinary view and most users are ignorant of it. However, specialist software can easily extract such information.

Similarly with e-mails there is a range of hidden information and audit trails used by the systems to move messages around which can be valuable in terms of finding out who originated an e-mail, when it was really sent etc. One of the challenges is in identifying the relevant electronic repositories of electronic information that need to be examined during the e-discovery process.

Many of the traditional litigation support companies are now providing e-discovery services. There are also specialist computer forensics firms which are able to recover information which has been deleted from systems or deliberately sabotaged.

In summary, e-discovery has the potential to uncover information, which would otherwise have remained hidden or which may not otherwise emerge until a much later and hence expensive point in the proceedings.

Collaborative technologies

Secure web-based systems are increasingly being used to allow distributed teams of lawyers, counsel and other parties to view and work on documents during the case preparation stage. This avoids the need to print, duplicate and distribute paper bundles and means changes/updates are immediately available.

Some firms have developed their own solutions; others use add-ons to their litigation support systems, while the emergence and option to use a third-party hosted service is becoming increasingly attractive.

Another technology which has application in this area, but is not currently widely used, is virtual team software. Products such as Lotus Team Workplace or the forthcoming Microsoft Live Meeting allow distributed groups of users to share documents and images in real time to create workspaces where they can hold discussions, annotate documents and use virtual whiteboards. When combined with desktop audio and video conferencing it offers a powerful solution.

Other technologies

With the increasing complexity of cases and the need to manage and adhere to strict timescales, workflow and project management software has a role to play. Being able to allocate and monitor the progress of work and track it against key dates or milestones has clear benefits. Going forward, one would expect to see integration between the court’s case management/diary systems and those used by legal firms. Also of note is the emergence of software such as CaseMap, which helps litigators organise and explore the facts in a case, link them to the issues and the characters involved and understand the chronologies which apply. Essentially a mind mapping tool for litigators, it produces reports and graphics to help understand key relationships and priorities.

In-court technology

To see the latest in court technology means looking abroad. The Courtroom 21 project in Williamsburg Virginia was set up in 1993 as a demonstration and experiment in how technology can improve all aspects of the legal system. It includes the world’s most technically advanced courtroom, embracing all aspects of in-court technology. Along similar lines there is Courtroom 23 in Orange County Florida, which, although slightly less well equipped, is a good example of a regular court using the latest technology.

The technology in these courts typically includes a high capacity infrastructure comprising fibre optic network cabling, plasma display screens for all lawyers, the judge, witnesses, the public gallery and, where appropriate, the jury. Also included as part of this will be high speed internet and communications links and in some US courts the ability to provide live TV and video feeds.

On top of this will be the evidence presentation system which provides access to the case documents and the ability to display them to the court, ensuring that everyone is looking at the same document at the same time and eliminating the need for paper copies. Typically, it is possible to display documents with have been scanned into the litigation support system, videos, DVDs and other material. A document camera is normally available to display ad hoc documents which have not previously been scanned in.

In some US courts it is further possible to file these documents electronically, so paper is avoided altogether. Documents are sent electronically from the attorney’s office to the court where they are generally stored in document management systems and managed via linked case management systems. When the case is heard the documents are available via the in-court presentation system without ever needing to be printed.

Work is underway to develop XML-based standards to facilitate the wider adoption of this technology and a number of service providers are looking to establish common standards and gateways.

In Australia, the Federal Court, the County Court of Victoria and a number of other courts have active e-filing programmes. Canada is also moving forward following successful pilots in Toronto and Ontario. Singapore has gone further, with the world’s first country-wide paperless civil court system. A pilot was launched in early 1997 to allow law firms to file documents electronically and since March 2000 its use has been compulsory in all new legal proceedings.

Finland is probably most advanced in this area having allowed applications to be filed electronically since 1993, although the take-up of the service within Europe has been poor.

In the UK, the Preston and Walsall County Courts allow general correspondence and the filing of a limited range of documents by e-mail. The Preston County Court Prema project goes further and allows solicitors to issue and serve applications by e-mail in respect of existing proceedings, providing certain conditions are met. Finally the Money Claims Online service (www.moneyclaim.gov.uk) allows claimants to issue money claims, enter judgment and issue warrants online.

The high technology courts also feature real-time, computer-assisted court record reporting using an in-court stenographer. The transcript is fed directly to the screens of the judge, lawyers and others within the court. They can then annotate this transcript and circulate notes and questions to each other regarding points of concern. Web enablement means that other members of the legal teams based back in the office or elsewhere in the court can read the transcript, participate in the screen-based discussions, provide advice and so on.

Video conferencing is commonly used to allow remote participants to take part in the proceedings. While video conferencing technology is fairly straightforward nowadays, one of the challenges is how to present the overall court experience to the remote participants. For example, if an evidence presentation system is being used, then this should also be available via the video link.

A number of US law firms have invested in mocked-up, technology-enabled court rooms where their attorneys can practice using the technology and delivering their arguments effectively before having to do it for real. It is also possible to rent such facilities from at least one provider of courtroom and litigation support technology.

The UK lags behind many countries in its use of courtroom technology and this looks set to continue with the recent announcement of reduced funding for the civil court modernisation programme.

Evidence presentation systems have been installed in a small number of Crown courts across the country, but similar presentation systems have yet to be installed in the civil courts. In fraud trials it is estimated that such systems can save 20% of the time it would take if normal document bundles were used.

Video conferencing facilities are installed in a small number of civil court centres and are able to be used in appropriate circumstances to give evidence. Judges in the Technology and Construction Court at Cardiff, where such facilities are installed, have stated that they expect case management conferences, pre-trial reviews, the taking of evidence and where appropriate the hearing itself to be conducted by video conference ‘unless no saving in time and expense would be achieved by its use’. Where video conferencing has not been used and the court takes the view that it should have been, cost sanctions may be imposed.

Real-time reporting and a variety of sophisticated transcription services are available from companies such as Wordwave and Sellers and can be linked to documents on the legal teams’ laptop-based litigation support systems.

The technology available to support litigators in preparing a case is sophisticated, powerful and readily available. It can deliver significant benefits, but the benefits will not be fully realised until court technology catches up, the systems can exchange information and electronic versions of documents can be sent to and used effectively within the court environment.

Julian Baker recently left Osborne Clarke to set up consulting firm, Legal Technology Solutions.

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