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Simon
Lewis, LLB,
Director sinch software pty ltd &
Litigation
Support Consultant with ShowCase Systems
1 CHOOSING A SYSTEM
Computerized Litigation Management is only just being
"discovered" by Australian lawyers. For a few years now, computers
have been used in connection with handling litigation matters in
solicitors' offices, barristers' chambers and even by the courts and
in the courtrooms. "Litigation support" has gained a certain currency
within the legal profession and the computer industry.
However, complete litigation management is something more than the phrase "litigation support" implies. It is worth examining the difference. In short, it is this:
Computers have, until recently, been thought of as providing just typing, editing, storage and retrieval facilities to a sophisticated degree. This amounts to assistance in managing litigation information. But now computers can directly assist with the lawyer's own work in litigation - analysis of litigation information. This distinction parallels the line that is drawn between "back office" computer applications and "front office" uses on the lawyer's own desk: "back office" computers aim to increase support staff productivity while "front office" computers aim to increase fee-earner productivity.
North American lawyers have used the expression "litigation support" for many years. They usually use it to describe a wide range of services. For them it is the combination of word processing and full text retrieval, used to prepare pleadings and briefs and to search for items from databases crammed with summaries or full texts of relevant evidentiary material. The Americans have used litigation support systems to assist them in generating depositions, discovery lists and interrogatories. This has also been called "computerised litigation support" and is by now a common expression as well as a common practice. The emphasis was on what Australian lawyers would call "office automation" facilities. These are "back office" or behind-the-scenes uses of computers, not intended for and not very easily exploited at the lawyer's own desk.
"Litigation support" has additional meanings. These include access to case-law research and legal literature databases such as LEXIS and DIALOG, using spreadsheets and project management software tools to help run a case, using electronic mail systems to send copies of documents around the country to various destinations, and the aggressive use of videos, films and computer generated graphics and slides to provide and summarise evidence, particularly in long and complicated court cases. These are examples of "technological litigation support".
Finally there is the human resources aspect of litigation support which specialises in getting expert witnesses into court (this once meant arranging accountants to give financial opinions, but is now an industry in itself). The use of paralegals and the different use of conventional support staff is another example of using people in the litigation support processes.
This expression means using computers, that are right on the lawyers' desks, for the complete control and management of a litigation matter. It does not operate in a vacuum, however. The newer forms of technology and management now work alongside the traditional methods of litigation support (word processing and retrieval functions), each with their part to play. The management of paralegal and secretarial staff remains a key feature too. But the emphasis is on computerising traditional lawyer activities in a way which minimises the reading and rereading, organising and reorganising, of litigation information, which provides a discovery list instantaneously, and which permits strategic analysis and review of the case at every stage, including during examination and cross-examination.
4 COMPUTERISED LITIGATION SYSTEMS
Systems have now been developed which outstrip existing generic full text and bibliographic packages and which supersede conventional word processing for data entry (though they incorporate aspects of both, with custom-made enhancements that simplify their use, speed up the usefulness and emulate the things lawyers have been doing manually for generations).
These new systems are to be distinguished from the full or free text databases and the bibliographic style database systems.
Full, or free text, databases, permit every word to be indexed and lets invited users load in even the longest documents. The biggest free text systems are often complex and cumbersome to use. PC versions are better.
Bibliographic packages permit searches to be conducted only on designated portions of an entry, eg on the "title section" and/or the "author" section of a summary of a document. These can be quite powerful and still permit extensive texts to be entered.
The emphasis of all of these packages is search and retrieval. Few offer custom-built data entry and checking within the database environment itself. None of the full text and only a few bibliographic packages offer flexible reporting capacities.
There is trade-off here which the manuals do not spell out very clearly. Users cannot run a search for a word anywhere within a bibliographic-style database as they could with a full text system. To achieve this, they would have to repeat the question for each designated section eg find me "gumtree" in the title section, and in the keywords section and so on, rather than simply find me any occurrence of "gumtree". Not only is more key-stroking required of the user, but much massaging and enhancing of text is required of a bibliographic system. Someone has to design and enter abstracts of documents. Full text systems, on the other hand, offer retrieval on any word that is entered into the computer. With Optical Character Readers becoming more efficient, full text applications are becoming less expensive to mount. The risk (often overwhelming) with full text systems is retrieval "overkill". The decision on which one to select will depend on familiarity with the litigation process and any one case in particular, analysing your own needs carefully before you set-up the system, and sometimes non-legal and strategic considerations need to be made. We have included checklists, below, that will help you to pose the right sort of questions you need to ask before you decide what to install.
The creation of databases in a law firm has the potential to become a bottomless pit. New uses for databases occur monthly, and the problem becomes one of balancing the wishes of those whose needs are legitimate against the not-unlimited resources of the systems department.
No matter what applications the database is used for, it should never be a haphazard affair. Creating a database is more like baking a cake than making a soup: once it's cooking, you can't go back and add something that you should have included in the first place.
The key to a database, large or small, is planning. Before any purchase or set-up of the program is done at all, someone must sit down and make some major decisions that will affect the database from that moment forth. What will it be used for? What information will it contain? On which computer will it be resident? Who will keep it up to date? Who will run it? Who will generate reports? Questions of this nature are more important than the length of the individual fields, or the number of sort parameters. If these questions are not answered at the very beginning, much work could be done that would require redoing at a later date. The following is a quick checklist of questions to ask oneself when creating a database.
Statement of General Purpose:
• What is the general purpose of this database?
• Why are we creating a new database?
• Is it really needed?
• Will it be used?
Preliminary Questions:
• What software package will be used?
• On what computer will the database run?
• Who will be the curator?
• Who are the repetitive users?
• Who are the occasional and special users?
Administration:
• How will the information be collected?
• How will the input form look?
• Who will input the initial data?
• How will the database be kept up-to-date?
• How often will there be housekeeping?
For Each Record:
• What information is required?
• In what order should the information go?
• How many entry screens are appropriate?
For Each Field:
• Can you think of possible entries?
• What length should the field be?
• What type of data ? (Characters, numeric, etc.)
• Should the field be coded? (Yes/No, special abbreviations., etc.)
• Should entry in the field be required?
• Should the field be masked? (To permit only certain entries and reject others)
• Should the field be secured against unauthorised access?
For Each Report:
• What is its purpose?
• What fields will it contain?
• In what order will the fields be found?
• What records will it contain?
• How will the records be sorted?
• Are there any calculations required?
• Are there selection parameters that should be made available?
• Should you be able to select records with Boolean operators?
• Should you be able to request a random sampling?
• How will the report be laid out?
• Should it have running headers or footers?
• Where should the page breaks go?
• Should duplicate entries be suppressed?
• Who can represent or obtain the report?
• Is the report to be printed on request, or periodically? 1
Data entry: Data must be capable of being entered to the CLS easily and swiftly. Word processing usually involves too much repetition of keystrokes for complete economy and the conversion of word processing data into "litigation support" form can be a lengthy and technically hazardous process. CLSs usually offer direct entry to databases, with technique to minimise keystroking.
Cross-checks: A good CLS will offer the data entry operator (and the lawyer who supplies the operator with data) with the chance to link references to people, places, events etc. as between a range of documents.
Missing items: Documents, events, etc. which are known about but not yet possessed by the litigation lawyer can be summarised and entered in the database to track the issues to which they relate.
Thesaurus: Careful control of words, especially synonyms, and spelling is also built in to some CLS products.
Retrieval: Speed is important, but so is accuracy. The ability to retrieve references to words and to be able to structure the replies in a variety of formats can be very useful. This is called "reporting" and it should be very flexible.
Management Requirements: Lawyers cannot "pass the buck" for learning how the CLS works, but the task of operating, entering data and overseeing its use in the lawyer's computer should be delegated. Some litigation support systems are so complex that they need virtually permanent technical expertise on the lawyer's staff.
System Requirements: Ideally, an CLS should be portable between a Notebook, PC and the Web, as the day is not far off when counsel, the client or an out-of-town expert witness demand remote access to your data.
Staff Requirements: Secretarial and paralegal staff may need to be supplemented (on a casual basis) for the intense period of data entry early in a matter's life. A balance between all three, and the economics and management of their time, must be considered.
Training: A lawyer's investment in their own training time is once-off and permanent. But training of paralegal/support staff, where higher turnover applies, can mean that expensive training is wasted when staff leaves the firm. The easier an CLS is to use, the smaller the training investment.
Support: Systems costing more than a few thousand dollars must, of their very nature, be complicated beasts. You will need assistance at some stage. Support can be expensive. A telephone hotline service will be essential, but little more may be necessary. Basic contractual rights (warranties of fitness for purpose etc.) should still apply.
7 DATABASE POSSIBILITIES - CHECKLIST:
Two basic ways to construct a litigation support database are with a full text system, or by means of using only short entries to summarize the information in each document. The latter is a document control system. There are trade-offs between the two systems.
When choosing a full text software, consider:
Equipment: What kind of computer equipment is required to run the software system? For example, a PC with less than 16 MB of RAM is unsuitable.
Cost : Full text software is often quite expensive.
Size limits: Generally size limits are not a critical factor.
Type: Full text software may operate by scanning the text or by creating an index of the text.
Notation/headnotes: Adding notations or headnotes in the text is very important for litigation support databases.
Flexibility of search terms: It provide a full range of Boolean search terms on only a very limited search.
Proximity searches: Search for terms and conditions within a designated number of words of each other.
Report capability: Will it print document excerpts and provide captions for reports and notations within reports.
Documentation: Easy to understand for the inexperienced.
Overall friendliness: The general ease of use is important. If lawyers find it hard to use they won't bother.
If using a document control database, the common types of data together with the usual level of utility, are:
Almost always useful:
• Document number/identifier (beginning and ending)
• Document date
• Document type
• Names of people mentioned in the document
• Summary comments
Usually useful
• Source of the document
• Production status in discovery
• Back-up for interrogatory answers
• Exhibit status (in hearings, pre-trial proceedings, at trial)
• Names of key organizations mentioned in the document
• Subject matter codes
Sometimes useful:
• Author/Addressee names
• Names of all organizations mentioned
• Dates mentioned in the document
• Information about transactions
• Estimated date (about author, date, etc.)
Occasionally useful:
• Significance of the document
• Attachment status
• Problems with the document,( poor copy)
• Cross-references to other databases 2
Below is a set of policies which may assist in the imposition of a standard set of management controls on case-critical, PC-based applications being developed and supported by the firm's litigation groups. A 'case-critical' system means a system that is absolutely imperative to the proper running of a case. Where the term 'end-user' is used it means the person operating the PC. The guidelines attempt to define 'case-critical' applications and the controls that must be applied to them. They also spell out who in the firm is responsible for what aspects of justifying, developing and supporting these critical, end-user-based systems.
Case-critical end-user-based systems may have some of the following traits:
• The system or its data is critical to the management of the case.
Failure or loss of data "would result in serious work disruption or significant financial impact." For example, a litigation support database.
• The application is time-critical.
• The system produces large discovery lists and exhibit lists, or other important documents.
• The system contains sensitive information such as trade secrets, personnel data, client information or confidential client documents.
• The system contains data that is subject to examination by regulatory agencies.
• The system contains data with a requirement for long-term archival storage, such as future cases, client records, precedents, research or opinions.
• The system feeds data to other systems that have the above traits.
End-user-based systems qualifying as case-critical must be developed and supported with certain specific controls. They are:
• A consistent system development approach that includes provision for testing to determine whether the system is doing what it was designed to do. The system also must be consistent with other litigation support databases within the firm.
• A system notifying users when any changes in the system are planned and for testing the effect of those changes on live databases. Also, a system for testing the cost/benefit of running new versions with existing versions for any given time.
• A system for validating compliance with formal procedures such as good cataloguing practices.
• Formal documentation so that a system can survive the departure of its creator.
• Means of securing the physical system, data storage media, sign-on, file systems, and printed information.
• Formal backup and recovery procedures.
• Training at least two people in the operation and maintenance of any critical system.
• A formal system for justifying and coordinating hardware and software acquisitions that includes a definition of the scope and purpose of the system, its business benefits, and a cost-benefit evaluation.
Describe the responsibilities various organizational entities have in ensuring that case-critical systems are developed with the required controls:
• Litigation partners are responsible for ensuring compliance with guidelines and for providing resources to support the case-critical information systems.
• Supervising partners are responsible for identifying case-critical end-user-based applications. Supervising partners are accountable for the decision as to whether applications will be developed and maintained by their own staffs or by the firms information systems department. Regardless of how the system is developed, responsibility for compliance rests with the supervising partner.
• User-developers must implement controls outlined in the guidelines at the direction of the supervising partner.
• End users are accountable for the decisions they make using system-generated information.
• The firms information systems department is responsible for developing procedures to implement the guidelines, including educating partners on the risks of developing systems without appropriate controls.
Taking the time and effort to build systems in a prudent manner may increase the perceived cost of system development and operation. It is important, however, for partners to realize that ignoring the risks is not an acceptable alternative, since the hidden cost of system failure or malfunction must be considered.
1.Ultimately, the computer is still dependent on people for input and output and most importantly, for imagination and the exercise of discretion. To Murphy's law ... 'whatever can go wrong will go wrong'... may be added 'very quickly' if computerisation is mismanaged.
Computerised Litigation Support by Jane Lodge maintains that planning is at once the most important and most neglected part of computerised litigation support. It offers the following basic checklist to help the lawyer assess the specifics of his/her involvement and determine where professional assistance may be required: 3
• Does the action meet one or more criteria for consideration of a litigation support system?
• What are the immediate and the longer term needs for and uses of a litigation support system?
• What work is currently being performed in the law office or by the client to support the litigation. What are the existing or anticipated deficiencies with respect to needs and uses?
• How does a litigation support system fit into the timetable for document discovery, proofing, interrogatories, pleadings and general preparation for trial?
• What are the budget constraints?
• What are the relative costs of manual and machine orientated systems to provide the required support, taking into consideration all of the operations to be performed in the two kinds of systems?
• Are there lawyer or client consideration affecting decisions to acquire either a litigation support system or outside assistance for such a system?
• Which persons from the firm and client will be responsible for deciding whether to acquire a system, assessing requirements, designing a system to meet them and managing the installation?
• What experience does the office have in managing, monitoring and evaluating large scale projects of this nature?
• Is assistance required to prepare discovery &endash; controlling documents, numbering schemes, filing procedures, photocopying, locations etc?
• Is assistance required to define the specific work to be performed in requirements analysis, design and operations?
• What kinds of documents are there? Which of these are of high, intermediate or low relevance? Are these priorities for processing each type?
• Will lawyers and support staff be obliged to learn the system? Do they want to?
2.When deciding on a Database Management Systems (DBMS) the steps outlined below, might be useful. Consider: -
• What information is required?
• Is the information presently available on the computer system? - If not, what method is to be used to capture it?
• What is the database to be used for?
• Who is going to use the database?
• Are different databases required for different users?
• Where will the database be located and who will have access to it?
• Who will manage the database?
• Who will devise its implementation?
• Who will design formats of documents and screens?
• What support and maintenance provisions have been made?
• What documentation is required for the maintenance of the database and what is supplied with any product to be purchased?
• What key features of DBMS software are required? - (Comparative Criteria.)
The comparative criteria for assessment of DBMS include: -
• Is a bibliographic or full text database search required?
• Is software that searches structured or unstructured text required?
• Is a database only to be searched?
• Is a word processing interface required?
• Is a specialist system manager required?
• What is the degree of complexity for use and the limitations placed on the system by unsophisticated users?
• Is the system menu driven or solely dependent on a query language?
• Are the reports interactive and storable?
• What type of "key" displays are there and are they meaningful?
• Does the software use natural language, and is there any "artificial" intelligence used to support the use of natural language?
• What are the limitations of the artificial intelligence?
• Does the software search using concordance or the inverted file method? Are the limitations in both methods accounted for?
Presumptions:
This cost benefit analysis is based on the following assumptions:
1. That this matter involves an estimated 30,000 documents
2. The average page length of a document is 2
3. The average number of characters per page is 1,000
4. There are 3,000 material documents
5. Documents abstracted onto the litigation support system at 500 characters per document
6. Solicitor's hourly rate at $120 per hour for a lawyer, $250 per hour for a senior partner.
7. Para legal rate is $80 per hour
8. Data entry/administration personnel $40 per hour
9. There are ten (10) client witnesses and ten (10) opposition witnesses
Hardware costs have not been itemised separately as this is included in the solicitor charge out rate, but specialised litigation support software has been charged out to the client as a separate item amortised over two years. The costs of an MIS/Librarian has been included to maintain the hard copy data base and control the software data base.
The savings using computerised litigation support will be even greater as the time span over which the case is run i.e. from commencement to conclusion, should be shorter as each task will be able to be completed in less hours.
The cost comparison does not include the cost of attending conferences, on-site attendances, telephone attendances, conferences on counsel or solicitors for the opponent. The comparison is restricted to those matters involving document handling and shows a per document cost of $3.12 for a manual system as compared with $2.50 for an computerized system.
1. Solicitor peruse documents to rank into priority order @ 10 documents per minute
2. Admin sort, index & store documents in chronological order @ 10 documents per minute
3. Prepare documents for discovery
4. Analyse & act upon opponents list of discovery
5. Proof witnesses (per ten (10) witnesses)
6. Prepare brief in workable order
7. Prepare documents for cross examining opponents witnesses (per ten (10) witnesses)
8 .Reading & handling transcript
10.1a Estimated Total Cost of handling a document manually:
1. Establish data entry field, issues, key words & build template
2. Abstract, rank into priority order, sort for discovery, assign to witnesses & issues, assign chronology & enter data
3 .Admin sort, index & store documents in convenient order
4 .Prepare documents for discovery
5. Analyse & act upon opponents list of discovery
6 .Proof witnesses (per ten (10) witnesses)
7. Prepare brief in workable order
8. Prepare documents for cross examining opponents witnesses (per ten [10] witnesses)
9. Reading & handling transcript
10. Software set up & Maintenance
11. MIS/Librarian
10.2a.Estimated Total Cost of Computerised Litigation Support:
1.The footnoted checklist is an extract from Technology in Practice by L S Eisen published in 1988 by Carswell Legal Publications of 2330 Midland Avenue, Agincourt, Ontario Canada M1S 1P7; It is part of the Carswell Law Office Management Series which also includes Organizing a Law Office by R A Hodge, 1988, CDN.$45; Marketing Legal Services by D C Wannop, 1989, CDN.$48; A Practical Guide to Law Office Automation; J S Chan & K A Grant, 1988; CDN.$48. [Back]
2.Siemer & Land; WILMER, CULTER & PICKERING MANUAL ON LITIGATION SUPPORT DATABASES; 2nd Ed.; published by John Wiley & Sons. It is available in Australia through Jacaranda Wiley. 377 pp. $A312.50.[Back]
3. Computerised Litigation Support by Jane Lodge is published in Sydney by The Federation Press, PO Box 45, Annandale, NSW, 2038 1990. The recommended retail price is $35. [Back]
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