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A major barrier to widespread use of litigation support has been its misunderstanding. As one article said "Ask ten lawyers to define it and you will get about twenty different answers". The article was In Support of Litigation: A Plea for Standards.
Fenwick & West Protocol
In 1991, US firm Fenwick & West received wide publicity for a Protocol for Document Exchange by Disk. They believed that the gains achieved through technology have been internalized to the individual firm, and overlook the substantial benefits that the legal profession as a whole can reap. They suggested that the legal profession needs to explore ways to use computer technology to augment individual practices and the efficiency of the overall lawyering process. Fenwick & West called for opposing parties to serve all pleadings, position papers, settlement offers and routine correspondence on diskettes as well as paper.
This protocol accelerated a trend in computer-literate Silicon Valley, and other parts of the USA. However, claimed worries about potential security issues caused some firms to delay participation. But the sponsors of the protocol maintained that lawyers must get over any residual technophobia that bars them from participating in disk swapping.
Australian Experience
For some time progressive Australian firms have also been leading the move to exchange discovery lists and documents electronically. Occasionally they were ordered by judges in large cases. Often it was the result of common sense and the goodwill built up among members of the Automated Litigation Support Managers group. To facilitate such co-operation, the Sydney group released a Standard for Discovery. This was a modest list of six fields to be exchanged in ASCII text format.
Around the same time, a Report to the Australian Institute of Judicial Administrators entitled Information Technology in Complex Criminal Trials recommended ensuring the courts had adequate power to make directions regarding co-operation and procedure concerning computerised documents.
Singapore
Apart from an announcement that the Supreme Court of New South Wales was planning to ensure each court room had power sockets, little was done in general by the courts to encourage greater use of technology . On the other hand, as part of Singapore’s plans to be the commercial centre of Asia, the Judiciary of Singapore were determined to ensure that the legal system was not a barrier to business. They reduced court delay to a matter of weeks in the higher courts. They guaranteed that small claims would be dealt with, within 24 hours. The Singapore Judiciary acquired litigation support software and training from ShowCase Systems for use in their Technology Court project which was launched in July 1995. At that time, their legal profession was behind their Australian colleagues in terms of computer literacy. Nevertheless, the Judiciary was determined to “encourage” greater use of technology. For example, electronic filing initiatives were launched in 1997. Recently, it was recognised that Singapore was now third in the world as an information society.
Supreme Court of NSW
In March 1999, the Chief Justice of New South Wales, The Hon JJ Spigelman, released details of the Supreme Court's guidelines for the more efficient management of civil litigation using information technology.
"The guidelines have been developed to provide for and encourage the use of technology by both parties in civil litigation," said Chief Justice Spigelman.
"When pleadings, affidavits, statements and lists of documents or interrogatories are served upon a party, the recipient may ask for them to be provided in an agreed electronic form.
"With regards to documents subject to discovery, parties should consider exchanging databases, especially when the number of documents is in the vicinity of 500 documents," he said.
According to the accompanying Press Release, during the early stage of the litigation and prior to the actual hearing, the parties will be expected to have used technology appropriately.
"Each party will be expected to have investigated the number and categories of documents likely to be discoverable; to agree with the other parties on whether and how to use technology to exchange lists of these documents; and to make informed submissions to the Court about whether and how technology should be used," the Chief Justice said.
Practice Note 105
The seven-page Practice Note should be a welcome road-map for those new to the area. It recognises that databases are essential for efficient document management:
“The benefits of a data base of discoverable documents are maximised when the parties agree to exchange information in agreed fields in an agreed format.” The guidelines touch upon a range of issues such as images, viruses, verification and courtroom use of technology.
A highlight of the guidelines is the list of fields and useful explanations for each. For example, part of the Author field explanation states: “Person or persons who wrote the document. To be completed using information on the face of the document. Last name First initial only e.g. "Smith B".”
While sophisticated users of litigation databases might have views on the choice of fields and styles for any particular case, novices will benefit from having a specific starting point. They will also benefit by examining other Protocols, such as the UK Official Referees Solicitors Association Protocol which has more detail in certain area such as formats and compression etc.
Because, as the Singapore Judiciary found that despite the best technology, it is still a “people thing”: the novice still has plenty of challenges ahead and will no doubt find out the hard way about data formats, ASCII characters, image formats and resolution, compression and numerous other hurdles to painless data exchange.
More help will be forthcoming from the Courts as Point 7 the Practice Note states that: “The Court may issue further practice directions in the future about such matters as the exchange of images of documents and the use of technology at trial. Parties are required to consider these issues from the commencement of proceedings.” This will in turn raise the courts expectations in terms of data management, but may also simply widen the gap between the “haves’ and the “have nots” in a computer literacy sense.
The Future
At a time when more small firms are winning litigation work by undercutting larger firms, too many small firms are taking shortcuts by failing to understand and use technology. The burden will no doubt fall on those who invested in database support to provide efficient and effective management of litigation, and who took the time to understand computers. Litigators can expect the same burdens as conveyancing solicitors who have to “carry” underquoting, cut-price and do-it-yourself conveyancers, to ensure the matter stays on track.
By encouraging use of databases, which can be much faster for data entry than wordprocessing, the Protocol will go a long way towards dispelling the myth that litigation support databases are only for large cases.
The Process
Litigation support can include a number of distinct processes:
Each stage is a natural progression, although often a diminishing return on investment. Unfortunately, there is the view held by too many litigation lawyers that litigation support it is an “all or nothing” exercise. The Protocol will clarify this misconception because it only requires Objective Indexing.
Conclusion
Simply exchanging data electronically, dramatically increases benefits. It also gives the parties the data to take the next step on from just controlling their documents: analysis of the material, also known as Subjective Indexing.
It is probably just jealousy on my part, but hopefully, Practice Note 105 will mean there will be less encouragement for those who choose inefficiency, such as the lawyer who ten years ago said to me: “Simon, at $3,000 per day I would prefer to use this pen”.
© sinch software pty ltd, May 1999, Sydney, Australia
