Last month The Lawyer published the first-ever Offshore Litigation Survey, which revealed the cases on which the top firms have been active as well as firms’ bench strengths. As part of the survey we also asked offshore firms about their technology-related innovations and how they project manage their litigation matters.
Offshore firms have introduced a number of products for general efficiency purposes and have taken a variety of investment approaches.
Bedell Cristin has brought in INTAP technology for time recording, while Appleby operates an internal portal that houses high-level information from a variety of data sources and presents them in an intelligent format in a single point of view.
Advances in technology over the past year “have resulted in significant improvements around litigation processes and within the teams that support those functions”, says the firm.
Conyers Dill & Pearman and Harneys both use Relativity for document management and disclosure purposes, while Conyers is piloting litigation-specific file management software.
We asked: what will be the most significant technology-related risk or challenge facing global law firm litigation teams and/or courts in the context of litigation in the next two or three years?
“Corruption of IT systems, cyber security and the resulting restriction of access IT systems impose on us.”
“Adapting to new technology, and the new best practice that comes with it.”
“Cyber security. We commit to an annual third-party penetration test and ensure any findings are immediately resolved each year. All externally facing systems are subject to a daily threat vulnerability scan. Data leakage prevention technology is employed to ensure that it is not possible for data to be removed from the internal systems.”
“We can expect that the move to electronic filing and processing of documentation will continue. This does present a challenge for the local courts as implementation of such systems comes with high front-end costs.”
“We are seeing increased confidence in cloud-based systems, fuelled by important advances in encryption technology. This means jurisdictions with business continuity challenges (for example the BVI, where the prospect of impactful hurricanes is predicted to increase) can get back up and running almost instantaneously.
“Technologies based on blockchain such as ‘smart contracts’ are emerging and these have the potential to automatically trigger proceedings (or other events) when certain contractual clauses are triggered; in some cases this may remove the need for legal services altogether, in others it could require expert legal help with very little, or no, notice.”
“The risk is that if firms do not embrace document review technology for disclosure matters, whether as part of a court process, regulatory matter or any other contentious matter, they will become uncompetitive on price and scope of service available. This is something that we are focusing on with potential external providers.”
“Cyber crime/hacking; costs budgeting and data protection. The ever-increasing volume of potentially discoverable material generated in the ordinary course of business remains a challenge when managing discovery processes.
“The use of (semi-) automated technology to review documents may seem time- and cost-efficient but is unlikely to replace legal teams in reviewing privileged or highly sensitive information.”
Nevertheless, Conyers warns: “It is not clear at this stage whether it has led to marked increases in efficiency.”
Carey Olsen is investigating various legal technology-related products such as e-discovery platforms capable of being logged in to remotely and by lawyers in a number of jurisdictions. The firm is currently using Safelinks.
“This allows us to have the ability to connect and work simultaneously with our offices, the courts, clients and lawyers in multiple jurisdictions, regardless of time zones,” says Carey Olsen. “This means we can work alongside our stakeholders in a streamlined way to ensure we are meeting the needs of our clients and the demands of the courts. To accord with the move by the courts to rely more on electronic resources and become more environmentally friendly we ensure we have the ability to provide the courts with electronic bundles for court cases, and can produce and file documents electronically.”
Carey Olsen also reports that in upgrading its federated search to allow litigators more intuitive access to research resources it now uses a product provided by Solcara/Thomson Reuters. It has also upgraded its digital resource library catalogue to a hosted site provided by Bailey Solutions that extends across jurisdictions.
“Magnum allowed our team – consisting of lawyers in the UK and Cayman – to create, update and share electronic trial bundles in a private online workspace” HSM Chambers
The growing size and complexity of offshore trials has demanded that firms respond to the logistical challenges with technological solutions. For example, says Bedell Cristin, Crociani & Ors v Crociani & Ors (2017), in which the firm successfully represented the plaintiffs, marked a key development in trial management.
“This was the first paperless trial in Jersey, led by us, which made the trial shorter and was widely regarded as ground-breaking,” says the firm. “We expect future trials to adopt this more efficient approach.”
Campbells reports that it used the Magnum software provided by Opus 2 for a 12-week trial that streamlined trial preparation and, as a result, saved significant time and expense.
The firm says: “The software was helpful in marshalling documents, preparing for trial, the electronic presentation of evidence at trial and when preparing closing submissions. Its use undoubtedly shortened the trial and saved vast quantities of paper.”
HSM Chambers, which uses Aderant Total Office software across the firm, used Opus 2 Magnum software on a 129-day trial in the Cayman Islands.
“Magnum allowed our team – consisting of lawyers in the UK and Cayman – to create, update and share electronic trial bundles in a private online workspace,” says the firm.
During the trial the electronic trial bundles were used in conjunction with the Opus2 real-time transcripts.
Walkers is another customer of Opus, which it implemented for the year-long Saad trial. Ogier commends the use of Opus Magnum 2 as its case management software in the courtroom in the recent Carlyle trial.
“Everything will be done online with the courts; all trials will become paperless” Bedell Cristin
The firm says: “This was in part because the trial bundle was so large that it would not have been possible to store even one complete copy for each party in the courtroom. The product enabled the team to access all documents in the trial bundle remotely, wherever they were, inside or outside the courtroom. It permitted annotation and note-taking on documents as well as more traditional transcription services. We are looking at what we can do more generally.”
Not all offshore firms have embarked on technology experimentation, however. Cains says that given that the Isle of Man has a fused profession it simply uses Microsoft Outlook, as updated, to manage litigation matters.
“We have a good relationship with our clients, and with law firms in other jurisdictions from whom we receive recurring instructions, and do not have a need, at this stage, to use more detailed project management tools,” says the firm.
Breaking down the phases
We asked offshore firms which phases of the litigation or disputes process – early case assessment, pre-trial/discovery or costs assessment – are of most interest to clients when it comes to using new technology. In almost all cases they pointed to discovery, whether pre-trial or as part of standard disclosure during trial.
Appleby comments that the use of technology to assist with discovery is now “so well-established that it can no longer be described as new”, although techniques for increasing the efficiency of processing large amounts of data and the ease of operation of the various platforms continue to improve.
“The area where we see particular interest in technological solutions is in court, for transcription of hearings and for access to ‘virtual’ court bundles which can save significant courtroom time,” says the firm. “In jurisdictions that permit it we are also seeing increased use of hearings by telephone or video conference, where judges are not physically in the jurisdiction at the time. While this can avoid delays and keep cases progressing, we believe such arrangements need to be used with care and are not always appropriate.”
Mourant Ozannes says: “There is massive development in e-discovery technology at the moment, including the combination of enhanced technology-assisted review tools with predictive coding to significantly reduce time spent in this area.”
The firm notes that this feeds into the wider topic of cognitive analysis of big data, which is seeing some significant developments in the litigation market.
“At the other end of the process,” says Mourant, “courts are getting much more tech-savvy, and are often expecting far more from firms in terms of electronic court filing/electronic court documents. The days of lawyers turning up with piles of paper are numbered.”
Walkers reports that its Guernsey office has been increasingly using e-discovery platforms, most recently Cyfor. “The London office has been impressed by e-disclosure product that allows us to navigate and analyse large quantities of information and electronic datasets effectively,” adds the firm. The provider is Carnoustie Consultants Ltd.
“In Asia our Hong Kong and Singapore offices have utilised the combination of Nuix and Relativity to target documents relevant to the proceedings and then manage them effectively.”
Those particular technologies have been developed for the firm externally with technology support from Law In Order.
Bedell Cristin comments: “Everything will be done online with the courts; all trials will become paperless. We will all need to become adept at using this technology for all trials. Volume of discovery material generated by technology grows exponentially.”
Using tech for better cost estimates
Pricing litigation has never been the easiest task, but will technology help firms give better cost estimates to clients?
Appleby maintains data on fee quotes and cost estimates for particular types of work so that it has a comprehensive pool of estimates to draw on. “We also capture data on cost outcomes to assist us with setting our future pricing strategy,” the firm adds.
Carey Olsen says: “Transparency of costs is very important, so it would be of benefit to our clients to investigate new technology that allows us to easily supply this information, from early case assessment to the breakdown of costs, potentially leading to ‘fixed cost’ scenarios.”
Ogier reports that like other firms, it is increasingly being asked for more detailed cost estimates. “We are looking at investing in suitable software to assist us with more accurate
estimates, both by learning from matters that we have previously worked on and allowing us fees accrued to be measured against estimates provided,” says Ogier.
The firm notes that firms are increasingly having to respond to offshore courts considering budgeting requirements in litigation. “We are seeking to gear up so we are ready for it – we have already seen it in Jersey and are taking proactive steps before it becomes a more general trend,” it adds.
We asked offshore firms whether they were using technology, analysing data or tracking the outcomes of their own cases to predict outcomes and/or inform litigation strategy/decision-making.
On the whole, the answer was no.
“Claims that were previously unable to start may become valid as document management allows wrongdoers to be identified more easily” Harneys
Appleby said: “While we track the outcomes of our cases and have significant data captured in this regard, we do not use this as a predictive tool. Our caseload is too varied and the case samples too small to produce any useful analysis.”
Adds Harneys: “We think claims that were previously unable to start may become valid claims as document management allows wrongdoers to be identified more easily. It is too early to say whether technology will be able to predict outcomes, but data management will enable lawyers to identify the crucial documents of a claim or trace assets.”
Harneys has used Relativity on a BVI/English case concerning fraud allegations and a second claim concerning the telecoms industry in Iraq.
However, Mourant Ozannes is keeping an open mind: “We are seeing most interest from clients in using AI technology on disclosure tasks to cut the costs out of the disclosure phase of major litigation. We are also seeing AI tools being used to predict upfront in the process what the outcome of certain types of litigation might be. If readily adopted, this has the potential to change the shape of the litigation market.”