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25 September 2013
In 1994, Lord Woolf was instructed to review the rules and procedure of the civil courts in England and Wales. The report distilled a number of key recommendations. In addition to fairness, certainty, reduction of complexity and other admirable principles for civil lawyers to follow, in practice it appears to be reasonable speed and reasonable cost that are the most persuasive objectives to lawyers and their clients.
Active case management is one of the core values of the Woolf reforms and includes making good use of technology a part of the court’s duty. In practice, are lawyers embracing technology as part of the preparation and presentation of evidence?
Generally the Woolf Reforms have motivated lawyers to find more efficient ways of working, increasingly relying on technology to prepare and present cases more effectively. Techno-savvy lawyers are making the most of reluctance to use technology among their legal and commercial opponents, and gaining a strategic advantage. When implemented correctly legal technology solutions can speed up pre-trial procedure, reduce the cost of litigation and make evidence accessible and understandable for all.
However, the most common reason cited for not using technology is the fear of excessive or unnecessary cost by using state of the art tools veiled underneath arguments about proportionality. In 21st century litigation these fears are simply unfounded and lawyers who choose not to use or understand technology may be losing out and, not only that, must accept the risk that they might not be providing the best service to their clients.
At a basic level, the cost benefit analysis is compelling. If you manage a case which has only one lever arch file of documents, it may take a human reviewer one hour to leaf through the pages of the file and highlight key references on which they seek to rely. In a fully indexed and searchable database, it might take 30 seconds, leaving the rest of that hour to understand the impact of those key references and possibly even explore further lines of inquiry. Using technology helps cases to evolve at a quicker pace, leading to swifter resolution, saving cost, time and emotional pain.
Of course, lawyers are duty-bound to consider at what point in a given case they should migrate their work to an electronic platform. It is a common perception that it would not be worth loading 1000 documents to a database for time and cost reasons. However there is justification when one looks ahead to the allocation of costs among the parties. Parties are required to mitigate their respective costs, so firms which continue to incur reprographic and courier costs by sending multiple hard copies of bundles to counsel, experts and other professionals, will not be greeted with the same enthusiasm as might be afforded to those who make one copy and disseminate it electronically. Furthermore, not charging for these administrative services (as is the billing policy of some firms) merely eliminates the cost, without freeing up any time. It is a fact that technology can reduce the amount of administration needed on any case.
In this age where people are generally expected to be able to and do communicate electronically, using a wide variety of tools, there are now equally wide varieties of evidence which may be relevant to a case. To understand how technology works in this context is not just and advantage, but also a professional responsibility for the lawyer. A search for evidence to disclose in civil cases is carried out subject to tests of reasonableness and proportionality. In many cases, parties have agreed not to conduct full searches of electronic material on the basis that to do so would lead to disproportionate time and cost. However, in a growing number of cases, the proportionality argument is being used as a weapon, to find key evidence (e.g. targeted searches for deleted evidence) instead of a shield, to defend the body of evidence which may be located deep within terabytes of data.
In case preparation, the value of technology to lawyers and the judiciary is inestimable, save for an understanding of the efficiencies it can create. Simply being able to access all the material via a laptop (possibly using a secure web access facility), is nowadays very easy, even for the most traditional of practitioners and must be infinitely preferable to carting around a vanful of files.
Using technology for presenting evidence is certainly more common place in the United States where civil juries are the culture. So far, in England, the most celebrated use of this technology has been within criminal proceedings and public inquiries.
Presentation hardware, software and transcription services in addition to sophisticated and compelling virtual models and graphics can bring evidence to life. The advantages are not only about making evidence accessible, most lawyers and judges who have experience of the electronic presentation of evidence become evangelical about the time savings and efficiency and the reduction in court time and costs.
Over the last 10-15 years esteemed barrister Edmund Lawson QC has had substantial hands-on experience as an advocate using legal technology both inside and outside the courtroom – mainly in the context of criminal trials and public inquiries. Mr Lawson has often commented that there is no principled reason why technology cannot assist the civil courts as others.
“I am not an IT expert, far from it. I can manage the basics, perhaps a little bit more, on a computer. I am, from direct experience, a huge fan of these developments. It astonishes me that that they are not more widely, if not universally, used. With them, one can prepare and present any complex case, civil or criminal, far more effectively – and efficiently”
Mr Lawson QC, notes that the Princess Diana Inquest, to most informed people’s surprise, concluded within its 6 month time estimate. “This could not have been achieved without soft presentation of the barn-full of documents. In contrast the Bloody Sunday Inquiry took years; but, without the use of IT, which was there invaluable, it would still be hearing evidence!”