General Practice, Solo & Small Firm DivisionMagazine
Volume 17, Number 4
PUTTING THE PIECES TOGETHER
Utilizing Technology to Educate Yourself, the Court, and the Jury
BY Bob Moss
As an attorney and a judge I have seen many a case go awry because a lawyer did not know what evidence he or she had in her possession, or knew it existed but couldn't remember where to find it. Unfortunately, PCs often have the opposite effect than what was originally expected by the business world. People are creating more paper than ever. To paraphrase a familiar saying, "Lawyers can't see their cases for all the paper."
By eliminating the paper forest, counsel can spend their time on analysis and development of a winning strategy. Instead of rummaging through files and boxes, spend time effectively reviewing material. Avoid retyping of agreements or pleadings received from the other side via e-mail or fax/modems. Did the opposition just dump a pile of unsorted documents on you? No problem. Search through them electronically.
Many people confuse a case management program and a document management program. The first is used to keep track of all the information on the case, such as people and addresses, filings, settings, documents, deadlines, and timesheets. The latter is used to locate, manipulate, and effectively use data and images.
The first step to organization is to have a good, user-friendly case manager, such as Amicus Attorney® or Time Matters®. This program can also be used to keep track of all documents created for the particular case.
The second step is to develop a meaningful file-naming structure. I recommend that the data and image files be kept in a separate directory and maybe even a separate drive from the application. The next level is the area of law. I prefer this to client name because it makes it much easier to find a form or pleading you once used. You do not have to remember the client name in order to begin your search. The next subdirectory is the client name, followed by the last subdirectory-the opposition name or the primary cause of action. With the advent of long file names there is no reason that anyone should have to guess what a file contains. Spell it out clearly (C:\wpdata\family\jasper\support modification\resp_interrog.wpd).What You Will Need
- A document management program such as Worldox® or PCDocs® to help make organization and recall of your documents easy.
- A litigation support program such as Summation®, Gravity Verdict®, or TotalVzn®, which links the facts and issues to the documents.
- Large-screen monitors-19 to 21 inches-for all staff and lawyers involved, so they can read documents online comfortably.
- A good communications server with both Internet connections and several fax modems.
- A good flatbed scanner with automatic document feeder. The speed and resolution will vary depending on whether you plan to do all necessary scanning in-house or just small jobs. A scanner that scans 15 pages per minute at up to 600 d.p.i. is adequate for most offices and is available at a relatively affordable price these days. It is recommended that large jobs be outsourced. Scanners that print more than 80 pages per minute are available for those who plan to do all of their own scanning.
- A CD-ROM burner and software. To uphold the integrity of the material, it is essential to use a WORM (Write Once Read Many) CD-R, not a re-recordable CD-RW. You do not want anybody to be able to copy over the CD.
- A good fax program such as Winfax Pro® or Procomm Plus®. Microsoft fax included with Windows 9x is not sufficient.
- To be able to produce to any format-PC, Mac, or Unix-I suggest having a copy of Adobe Acrobat® on your system. This is particularly helpful when you are producing a disk for an expert or accountant and you do not know what type of system or software he or she uses.
- A good consultant!
How to Do It
Although the average divorce or custody case does not produce the extent of documents found in some complex civil cases, there is still enough to cloud the picture. Using a divorce case as the example, this article will highlight a few areas where improvements can be made:
- Minimizing the paper created.
- Managing documents.
- Assembling the evidence.
- Analytical litigation preparation.
- Effectively using documents at deposition, mediation, and trial.
- Using electronic briefs.
Electronic case and document management saves time, lowers expenses, and simplifies case handling. If a hard copy is needed, print it out from your desk. No costly, time-consuming trips to the copy room by support personnel. Fax any of the documents directly from your desk. With enabling software, faxes and scanned documents are integrated with word processing, spreadsheet, database, and e-mail files in easy-to-navigate online file folders.
When it is time to produce to the other side, give them a CD with the reader on the disk. No need for manual sorting, copying, or production logs. Some of the documents contain privileged information? Simply redact electronically and note it.
Summarizing depositions or entire cases is simple and quick. Go through your documents online, copying and pasting summary-type sentences or phrases onto electronic sticky notes. When you are through, just click on "summarize" and a new document consisting of only the copied material is produced, giving you a running outline.
Document creation. The only paper being created by your enterprise should be paper that is going "out of house" or those documents that are absolutely essential to personnel in non-network accessible locations. Incoming material should be received via e-mail or fax, or on disk. Paper received from the outside should be scanned, databased, and if a pleading, interrogatory, etc., OCR-ed into your word processor.
What is OCR? When a document is scanned into a computer it is received as an image, a picture. The text on the document cannot be edited or searched. OCR-Optical Character Recognition-converts the image to a text file that can be accessed by a word processor. This allows for two important functions: (1) The document can be edited (useful for exchange of drafts); and (2) The entire document is subject to word search (useful for finding the right document or evidentiary phrase).
I recommend the use of an "Electronic Document Sharing Agreement" between counsel in all litigation and other document-heavy matters. This agreement provides that whenever possible, documents presented to the other party, whether images or text, will be provided either on virus-scanned disks, by e-mail, or by fax. Faxes should be sent in fine or superfine mode. (This allows for more accurate OCR-ing.) They should be sent to a fax modem or a fax machine connected to your computer. Using this method, everything can be viewed without printing and then filed in the proper directory on your hard drive.
Inventory and appraisement. Every divorce requires that a full inventory and appraisement of the assets of the marital estate be done, even if this material is not required to be filed with the court. A number of prepackaged programs on the market allow for creation of this material and division of the estate. As a Judge, I normally used a spreadsheet template to track the various lists and reach my own conclusion (see figure 1).
By placing self-calculating formulas in the bottom two lines, I always had a clear picture of what was happening and a summary of the evidence to go back to if necessary. Lawyers should have their paralegals keep this chart on a laptop as the evidence or mediation develops. It is a great aid toward reaching a settlement. As items are moved back and forth in negotiation, the totals and percentages automatically change, allowing for an immediate evaluation.
Put this type of document up on the big screen during the trial so that the judge and jury can see what is really happening. It will aid them tremendously in doing their job.
Custody and visitation. Another program worthy of consideration is Kidmate™. This software assists in working out custody time sharing or visitation schedules. It will calculate the total number of days per year for each party and the percentage of possession time. It also has a module for tracking the child's expenses.
Client and opposition documents. Never photocopy client or opposition documents. Always scan them. Using well-constructed databases, electronic documents can be retrieved in seconds, as opposed to minutes or hours of shuffling through boxes. Additional benefits include: (1) the ability to quickly prove what was produced to the other side; (2) removal of the risk of the document being changed; (3) the ability to place annotations and highlights on a document, through the use of an overlay, without affecting the integrity of the document; and (4) the ability to easily redact privileged information prior to producing the document to the other side. The decision as to whether to OCR a document can be made at any time during case preparation.
Litigation software. One helpful litigation preparation tool is an information management program. The CaseMap and TimeMap combination, for example, is an excellent tool that helps you organize and explore the facts, the cast of characters, and the issues in your case.
A good litigation support program is one that allows for simultaneous boolean or fuzzy searching of document databases, text documents, transcripts, notes, and outlines. When attempting to trace assets or determine commingling of assets, for example, this will allow you to search for every reference to the item, whether it be in the inventory, interrogatory answer, deposition, invoices, canceled check, etc. Just imagine: You are questioning a witness at a deposition or trial. Your assistant keys in a few words, and a document pops out of your portable printer, which you use to impeach the witness on the spot. Or perhaps a counselor/therapist is testifying. Within seconds, you punch up a test evaluation, school report, or social study that shows he did little or no investigation in reaching his conclusion.
Databasing. Database fields will vary from case to case. Figure 2 shows a typical set that allows for quick and simple searches and application. With this information on your computer, you can easily prepare all-inclusive outlines to assist in pleading, case preparation, deposition preparation, mediation, drafting jury issues, trial, and arguments.
Multimedia. Effective use of multimedia materials can put a case over the top. All depositions should be videotaped and put onto a CD-ROM. When the deponent contradicts her deposition testimony at trial, just type in the search word, hit a key, and play the contradiction on a 50-inch screen. The effect on both the jury and the witness will be far greater than with the traditional reading back. Another very effective use of the video is at mediation to convince the other side that you have the superior point.
Whenever a witness is testifying from a document, that document should be displayed on the screen so that the judge and jury can follow along. Using one of the presentation mice, quietly spotlight the words you want the trier of fact to remember. Zoom in on key phrases. Using the computer capabilities in trial will save the cost of blow-ups and make the documents easier for the paralegal to handle.
Create slides of important paragraphs or interrogatory answers. Zoom them onto the screen in color as the witness is testifying. The jury will remember this important material.
Electronic briefs. How often have you wondered if the judge pulled the cases you cited in your brief when reading it? As a former judge I can tell you that I often did not because I was reading the brief at home. So how do you get the court's full attention and the impact of that "white horse" case you found? Put your brief on a CD-ROM disk together with the full text version of all the cases you have cited. Using your word processor, hyperlink the cite to the case. When the judge right-clicks on the cite, he or she can open the full-text opinion at the same time. (You can also do this using Adobe Acrobat®.) (A demo appellate submission is available for download at www.paperlesstechnology.com/cdbrief.htm.)Using Your Chosen Technology at Trial
Do you have a laptop with a hard drive that has the capacity to accommodate the images and data you will need? If not, you have to decide whether to put it all on CD-ROMs or take a desktop computer to trial.
As trial approaches it will become apparent that you will not need some of the material you have gathered onto your computer. Create a new directory called "trial material" and copy the text, transcripts, spreadsheets, and images you will be using at trial to this directory. Then move this directory to the computer you will use at trial or burn it on a CD.
If you participate in a lot of trials, look into a trial presentation program. For lawyers who have only a couple of trials each year that have a need for this level of preparation, I recommend that you hire a consultant to assist you in putting the material into presentation form that will be easy to use during trial.
If you anticipate that documents will be used at trial that you do not have on disc, rent an overhead projector. This will enable you to exhibit the document to the jury in an easily readable form during testimony.
You also will need a large-screen TV or monitor (35 inches or larger) for the jury, small monitors for the other parties and the judge, switching equipment, and a presentation mouse. A good consultant will assist you in leasing all of this equipment if your court does not have it installed.
Unless you have done extensive work with this type of technology, it is extremely difficult to try the case and also run the equipment. The better choice is to have a consultant, paralegal, or co-counsel handle the computers.The Winning Edge
The number of computer applications aimed at the legal community is growing quickly. By leveraging technology, counsel can reduce the number of new hires, spend more time actually working on a case, gain quicker and more effective understanding of the evidence, and develop the most effective trial and mediation strategies. In making clearer presentations to the trier of fact, your chances of success greatly increase.
Even if you elect to pass up "the winning edge," rest assured that your opposition will not.
Bob Moss, J.D., C.D.I.A., is a Former District Judge and trial attorney from Dallas, Texas. Judge Moss has a Ph.B. in Psychology from Northwestern University and received his J.D. from I.I.T.-Chicago-Kent College of Law. He gained his C.D.I.A. (Certified Document Imaging Architech) certification in 1997. Moss is president of Advanced Paperless Technology Associates, Inc., a consulting firm specializing in legal technology, in Dallas (www.paperlesstechnology.com/legaltech). For more information on this or related subjects, contact him by e-mail at firstname.lastname@example.org or by phone at 972/233-7910.