Technology is taking over in the courts and the early indications are that professionals are seeing the benefits
Q: How can technology assist lawyers in the trial preparation process?
Joanna Bromhead, partner, Bond Dickinson: On a recent large case the availability of an electronic trial bundle had significant benefits, including in relation to interpartes collaboration on document selection and last-minute amendments to the trial bundle, which were more easily incorporated and shared between the parties.
Andrew Moran QC, barrister, Stone Chambers: I was the trial judge in the huge and complex Bitel litigation in the High Court of the Isle of Man. There had been a long jurisdictional dispute that had run all the way to a final appeal before the Privy Council. The full record of proceedings, some 18,000 pages of documents generated in that phase of the case, had been digitally copied and stored in a well-indexed searchable, hyperlinked file or folder. Recourse to those vital and voluminous source materials was fast and convenient. While the lawyers were free to use paper bundles I used it exclusively and, upon being given the relevant reference – nothing more than a page number in the pdf – I was able to access the document in an instant, highlight or annotate it and store the annotations.More substantively, the ability to search, annotate and compile relevant documentation, and to share the results of that work with colleagues, was valuable when drafting submissions and preparing for cross-examination of our own witnesses and our opponents’.
Zoe Sullivan, barrister, One Essex Court: I’m an enthusiastic recent convert to the paperless system for heavy trials. Electronic trial bundles allow rapid searching for keywords across huge volumes of documents. You have to use the right keywords, of course.
When reading in, it’s just as easy to turn electronic pages as to flip through the contents of a hundred lever arch files. You can highlight, mark up and identify a document as relevant to a theme – say, ‘rectification’ – and search later for all documents on that theme.
You can add documents to customised bundles as you go through them. This is particularly useful when preparing cross-examination, where you can create a bespoke bundle for each witness.
I always want to physically mark up what I consider the most important documents, but having them available in electronic form makes it easier to identify and collate the documents you need, and it’s then simple to print them off.
John Reynolds, partner, White & Case: Technology has led to an explosion of information. For litigation purposes this commonly includes evidence – documents, emails, Bloomberg messages, voice data and so on – witness statements, expert reports and court submissions.
Statements and court documents are getting much longer as the constraints of handwritten submissions and photostats no longer apply. Without technology the task of managing this information and presenting it to prepare for trial effectively would be impossible. It would take longer and cost more. And something might be missed.
Q: What are the benefits of a paperless trial or court hearing?
Bromhead: Our trial bundle comprised over 100 volumes when printed, so having the electronic bundle was a boon in terms of improving our ability to work from home or the office without needing to carry files to and from court.
The ability to cross-refer between documents using hyperlinks and to annotate transcripts and documents as the trial progressed was helpful in the preparation of closing submissions; the judge in particular seemed very keen on its use, and did not take any handwritten notes during the six-week trial. Our clients and experts found the trial much easier to follow than with traditional paper bundles.
Moran: I dealt with more than 60 interlocutory applications – some heavy issues and novel points. The paper bundles for individual applications were themselves often substantial. Since I was only a part-time judge in an offshore jurisdiction, trying to conduct an arbitration and commercial practice of my own in other parts of the world, it would have been impossible to conduct the litigation without digital materials.
The whole case was carried with me on my laptop (the hard copy papers filled several rooms in the court building) and, for example, while engaged in arbitration business in Singapore I was able to conduct fully fought interlocutory hearings by video link, with counsel and advocates in London and the Isle of Man participating. Even late-coming documents were ‘handed up’ by email to my laptop and filed immediately in the trial or application bundles.
When the trial started the digital bundles were uploaded to the most impressive trial document management and recording system, in conjunction with LiveNote, called Opus 2 Magnum. References in recorded oral evidence to documents were hyperlinked for recourse to the document the witness was talking about and I’d place notes on the document while evidence was being given. I’m told the system is to be improved by a merging of the Live-Note and document management elements.
This enabled me to use the agreed lists of issues in the case to highlight evidence and parts of documents (in different colours) relevant to the issues as the trial progressed. I was also able to annotate as I went along. Without this wonderful system it would have been impossible to receive the evidence and take up references to documents at the speed with which it was done. I have no doubt that substantial cost savings occurred in consequence. I was also leagues ahead of where I would have been when coming to write the judgment (in fact, the case settled mid-trial) because I was able to call up all the evidence and documents relevant to particular issues.
Sullivan: In a heavy trial, electronic trial bundles reduce the physical difficulty of manhandling multiple sets of files. Every team member can access the same trial bundle remotely from home or any other location. Updating bundles during trial is also simpler and more consistent.
Teamwork is greatly simplified. Everyone can mark up the same document without version control problems, but each user’s notes can be kept separate and you can choose to view only your own notes.
Reynolds: This is where it’s all moving. We recently did a three-week paperless arbitration hearing. It involved 10,000 documents stored on a private, cloud-based service for preparation of trial bundles, presentation of documents on screens and transcripts. We had two co-defendants and the technology enabled sharing and closer co-operation with co-counsel. Once you’ve used it you never want to do a trial without it.
Q: Does using technology in the run-up to trial and at the hearing bring cost benefits?
Bromhead: Much depends on the way the technology is used and the extent of the collaboration (or lack of) between the parties. However, there are cost benefits in addition to the reduced need for printing off hard copies; for example, cross-examination is more efficient when counsel can feel confident the witness was looking at the correct page of the correct document due to the use of ‘slave’ display screens. Preparation of closing submissions was sped up through the use of the annotations made by the team during the trial.
Moran: This depends on the use made of it across the legal teams. I fear it may not bring as much benefit as it could if some members of legal teams are more comfortable using paper materials.
But where the judge has made it plain, as I did, that I was only using digital materials and could get to documents far more quickly than those wrestling with paper, all the legal teams had at least one member – and usually more – adept in using the digital material. Others were soon forced to join in.
Sullivan: Without carrying out a cost-benefit analysis I suspect not. The photocopying bill is lower, but the preparation of the electronic trial bundle is a formidable exercise as every document must be accurately indexed and hyperlinks must work. It’s a useful tool, but it does not shorten the process of reading, reviewing, thinking and drafting.
Reynolds: The system described above is not cheap, although I am confident that on big cases the savings in efficiency will make it pay.
Q: How can you get technophobic lawyers to use technology?
Bromhead: We all have our preferred ways of working which can make us resistant to change. However, a sympathetically presented guide to the benefits of the system can be effective, particularly if it focuses on the ways it can reduce workload.
Ultimately, senior counsel in particular may be unwilling to adjust their tried and tested methods, but even they may be persuaded when they see the technology in action. They may have a different reaction in future.
Moran: By encouraging CPD-creditable training. Training judges (which now occurs) and getting them to take the lead, as most do, is key. There’s currently a huge cost outlay for the parties that makes it only justifiable for the biggest cases, but if systems such as I used are part of the court infrastructure the case-by-case savings will be enormous.
Lawyers’ phobia will, by force of necessity, be overcome. If you want to join in the game you have to play by the rules – and on the pitch provided.
Sullivan: By understanding that it is surprisingly easy to adapt your working practices to electronic working. The technology is now so good you are effectively looking at an electronic photocopy of the document, including manuscript markings. It’s intuitive and user-friendly.
A big plus is the ability to use hyperlinks to click through to witness statements, other documents and authorities. Once you’ve got used to hyperlinks you’ll never want to go back to searching through files on the shelf for that elusive document.
Reynolds: It’s tempting to think that judges – with less day-to-day contact with all the technology we use – may be technophobes, but I’ve found the opposite to be true. At a recent Privy Council hearing, the five judges (all Supreme Court judges, of course) were all working comfortably with electronic bundles and navigating their way around them quickly and easily.
A system proving as pertinent today as it will in the future
The message from the panellists in this feature is that electronic trials are not only the future, they are the present. Advances in technology, not least the emergence of a more secure internet, mean the landscape has changed and it is now possible to benefit hugely from the use of appropriate software, even in the context of a highly sensitive dispute.
Crucially, judges and arbitrators are converts, acknowledging the efficiencies technology delivers at trial by speeding up proceedings and making the task of dealing with the volume of material far more manageable.
Litigators have equally taken to using software for preparing their case and then at the hearing itself. Magnum is now in use on cases of all sizes across the UK, not least because it gives lawyers access to their content from anywhere, fitting in with a more mobile and modern way of working.
Clients are convinced by the cost savings technology can bring, not just through saving dramatically on printing and avoiding the need to update multiple bundles (Magnum uses one common set of documents for all parties) but through making the legal team far more efficient. Users can quickly navigate through the document and transcript set using advanced hyperlinking and searching functionality, while collaborating effectively with their colleagues.
Ease of use has been the key to winning over any technophobes. With the feel of a paper copy and annotations that mimic the use of a highlighter and manuscript note, Magnum users feel comfortable at the screen and less distanced from the traditional hard copy method. The technology is highly intuitive meaning that busy lawyers preparing for trial do not need to invest more than a few minutes of their time getting to know the system. Many have declined the offer of free training simply because it is not necessary.
Importantly, lawyers now realise that it is not a question of using technology at the expense of all paper copies. On the contrary, the two can sit side by side and complement each other so where a QC or judge is more comfortable using the paper method, they can do so while others make use of the technology.
Clearly, trial technology will continue to evolve at pace and its adoption will continue to grow. The next step for Magnum is the full integration of live transcripts with audio (from November) and with it a much greater degree of collaboration across documents and transcripts at the most important stage of all: the trial.