Do the efficiency savings resulting from installing a database litigation support system justify the costs, asks Josef Elliot. Josef Elliott is a director of Elliott Slone, specialist in litigation support systems.
Litigation support has moved into a new phase, but it is not the systems that have changed; it is the market. Users are becoming more mature and aware of their requirements. We're still a few years away from the Nintendo generation reaching partner level, but many litigators are familiar with the concepts and benefits of building an image-enabled document database.
Litigation support is generally assumed to mean the computerised management of the evidentiary document population. But what do you get for your money when you load your documents into a database?
You get an image of the document, which you can view on screen and print. You also get a coded database – like a classification card, providing you with information about the document such as author, recipient and date, which will enable you to search, sort and group your documents. And you can store the full text of each document, enabling sophisticated Lexis-style word searching across the whole document collection.
With these elements in place you are in a better position to classify and interrogate your own documents; produce a Discovery List (directly or by exporting to a word processor for putting into house style); challenge the other side's list; prepare a bundle of documents to, from or about certain witnesses ready for proofing; compile and print numbered trial bundles; and use the scanned images in court to allow immediate access to your document collection without referring to hard-copy documentation.
There are two types of cost you will incur in the use of litigation support: system costs and document conversion costs. Budget around £1,500 for the hardware and the same again for a single-user text-retrieval and image viewing package such as Concordance.
Document conversion costs are the charges incurred putting your documents onto the system. These vary from around 10p per page to capture scanned images to around £1 per document to use a team of paralegals to capture the basic bibliographic information necessary to produce a Discovery List.
If you require the full text of documents, first-pass optical character recognition (OCR) gives good results on reasonable quality-typed documentation, adding around 5p per page to conversion costs, with a copy numbered set of "blowbacks" costing a further 5p per page.
The advantages of these systems? Imagine you have 100 lever arch files, around 400 pages in each, and that you need to search for all documents authored by, or mentioning, two named individuals. Performing this task manually would involve repeating the search, pull, sort, photocopy and replace cycle for all the files, taking up to four hours.
Using a litigation support system you can perform the search and review the sorted list of documents on screen in less than two minutes and carry the whole document collection around on three CD-Roms to perform similar searching with clients, counsel, witnesses or in court. Moreover, there is a good chance of being able to recover some of these costs at Taxation.
Chief Taxing Master Hurst, writing in the New Law Journal (8 July 1994), says: "There does not seem to be any reason why time spent by paralegals going through documents and entering information into a database should not be recoverable." But not all costs are recoverable.
In the same article, Hurst strongly argues that system costs should be borne by the lawyer, stating: "There does not appear to be a proper basis for the recovery of the capital cost of computer equipment, which will normally be viewed as part of the solicitor's overheads in the same way as other office equipment." Sharing scanned and coded information with the other side is also possible if handled in the right way.
However, a recent attempt to sell scanned and coded information resulted in a judgment which disallowed the recovery of the conversion costs between parties where one party had captured the information for its own purposes in isolation before seeking to sell it to the other party (Grupo Torres SA v Al Sabah, QBD (Mance J) 8 July 1997). If proper application is made to the court in advance, the allocation of costs can be laid down early on.
When implementing litigation support systems for the first time, start with a non-time-critical pilot case if possible, on which you can decide which of the benefits of litigation support systems can help you in the particular way in which you work.
When choosing a system remember that, although the demonstrations look impressive, what you are essentially doing is computerised filing.
The biggest benefit of these systems is that they alleviate the tedious mechanics of maintaining paper sets of documents, and enable lawyers to spend more time on analysis and synthesis – the areas that give their clients best value for money.