August 2005
Volume 1, Number 4
Table of Contents

Anatomy of Trial Technology
By Catherine Sanders Reach

LOA -- Office Automation: Computer Hardware & Software

It would seem these days that, with the proper technology, a case could go from start to finish without ever generating a piece of paper. What little paper exists is scanned in, annotated, organized, searched, retrieved and stored electronically, along with e-mail, word processing documents, spreadsheets, and all other digital data. Trial preparation includes EDD, online depositions, and real-time transcription. Briefs, motions, filings, and documents are all delivered electronically. Timelines and evidence are generated graphically, shown to jurors simultaneously on plasma monitors and a 6-foot screen. Documents are displayed the same way, with a skilled attorney or paralegal annotating, highlighting, and emphasizing on-screen. Witnesses are called in from all over the globe, testifying over live satellite links. CGI enhanced recreations of events educate and enliven jurors. No attorney would dare be seen lugging boxes of documents into a courtroom. But is this reality or still just a technology dream (or nightmare)?

In June 2004, the American Bar Association's Legal Technology Resource Center completed its annual technology survey, published in five parts. The Litigation and Courtroom Technology volume serves as a sobering background for those who crave a total technology trial. Firms are slowly embracing litigation technology, but there is still a long road to follow before the technology is ubiquitous. Courtrooms have yet to provide much technology in the way of hardware or software, citing expenses and implementation as key barriers. Many lawyers are hesitant to spend thousands, much less hundreds of thousands, of dollars on sophisticated hardware and software. So what are the courts and attorneys embracing, and what are they putting off for another day?

Electronic Filing

According to this year's survey data, a little less that one-quarter of attorneys (23%) filed court documents electronically at some time, ranging from 4% reporting that they did so one or more times a day to 10% indicating that they did so 3 to 11 times a year. The number of attorneys who received court documents electronically jumped from 36% last year to 45% this year. Solo firms had the highest percentage of attorneys who had never received court documents electronically (73%), compared to roughly half of attorneys in larger practices (2-9 attorneys: 52%; 10-49 attorneys: 49%; 50 to 99 attorneys: 52%; 100 or more attorneys: 49%). The most popular types of court documents filed electronically were pleadings (78%), motions (76%), appearances (47%), and discovery documents (42%). Similarly, the most popular types of court documents received electronically were pleadings (68%), motions (63%), discovery documents (40%), and appearances (30%). Most lawyers had a positive experience filing court documents electronically, with 45% very satisfied with the experience and another 50% somewhat satisfied. Attorneys had equally positive experiences receiving court documents electronically -- 46% were very satisfied and 44% were somewhat satisfied.

Electronic Discovery

A great majority of the survey respondents had never received an electronic discovery request (75%), with little to no difference displayed in the responses of large firms (64%) (see Table 1). Of those who had processed requests, large firms occasionally used Web-based electronic discovery tools (19%), electronic discovery software (23%), electronic discovery consultants (29%), or litigation support software (35%). These findings suggest there is no pervasive way to process these requests. When asked to report on how often they made electronic discovery requests, 71% of large firm attorneys responded with a resounding "never" (72%). For those who had made such request, the pervasive method was in-house (94%), followed by electronic discovery consultant(s) (31%). While electronic discovery is on the rise, very few respondents have yet to engage in the activity.

Online Depositions

Lawyers' participation in online depositions is similar to that of electronic discovery. The vast majority of respondents (95%) had never been involved in an online deposition, with large firms sighting a lack of knowledge about the technology (22%), a lack of knowledge about the process (39%) and having no need to do so (72%) as the reasons why not.

Courtroom Hardware

Courts are not supplying hardware for use in their courtrooms as a whole. There are a few examples of high-tech courtrooms, and projects such as Courtroom 21 show the potential for technology in the courtroom, with wireless networks, flat panel monitors, rolling presentation stations outfitted with gadgets galore, and a judge's bench with more controls than a Boeing 747. However, these courtrooms are the exception, rather than the rule. For example, color video printers, light pens, telestrators, and touch screens were available to less than 10% of the attorneys surveyed. However, in each case, roughly 40% of respondents admitted that they did not know whether or not the device in question was available. Much more readily available were familiar devices like analog audiotape players (32%), closed-circuit television (28%), CRT monitors (26%), overhead projectors (49%), televisions (59%), and VCRs (59%) (see Table 2). Technically sophisticated devices such as plasma monitors and electronic whiteboards were only available to 3% and 9%, respectively.

The most readily available evidence presentation device was a laptop equipped with presentation software (22%). On the other hand, the availability of barcode readers (5%), evidence cameras (10%), and integrated lectern/evidence presentation units (13%), was limited. On the digital front, 22% of attorneys reported the presence of real-time reporting equipment capable of delivering a transcript to their personal notebook or laptop, and another 19% of respondents said that real-time reporting equipment that could deliver a transcript to a court monitor was also present.

Although it would be desirable for the courts to provide hardware, larger firms (over 100 attorneys) are taking matters into their own hands. Digital slide projectors (54%), notebook/laptop with presentation software (82%), and overhead projectors (76%) seem to be a part of the trial attorneys arsenal. Growing in availability are evidence cameras (34%) and digital audio recording devices (26%). Even for solo attorneys, a laptop with presentation software (21.4%) is becoming a standard tool of the trade.

Attorneys also have to be wary about bringing technology into the courtroom, checking with the judge and the court rules first. Some judges are fascinated by new technologies, but some are not as impressed. Opposing counsel may argue that the technical wizardry creates an uneven playing ground. Other impediments may be a lack of grounded outlets and other necessities. Always check with the court, review the layout, and bring back-up to keep away the worst-case-scenario.

Courtroom Training

The majority of lawyers had not received any training in courtroom technologies (24.9%) (see Table 3, at left). This fact might well explain the high percentage of attorneys that did not know what technologies were available in a courtroom setting. The attorney's firm size did not appear to have any significant impact on the decision to get such training: 76% in small firms (2-9 attorneys) and 75% in large firms (100 or more attorneys). In law firms with 50-99 attorneys, 64% had not received any training, slightly less than the 67% in firms with 10-49 lawyers. Large firm attorneys had received training most often via training materials provided by the firm (64%), training from in-house staff (54%), and vendor-sponsored courses (46%). The survey shows that 31% of respondents found live classes taught by staff to be the most effective, with lawyers in large firms finding this to be the case 78% of the time. When asked why they had not had any courtroom training, 28% of respondents found such training unnecessary.

Litigation Software

Almost half (48%) of the lawyers surveyed reported the availability of litigation support software, up significantly from last year's 25%. Within the litigation practice, two-thirds (66%) have this type of software, up from 43% in 2002. The software was noticeably more present in large firms with 100 or more attorneys (79%) than in small firms with 2 to 9 attorneys (33%) and solo practitioners (21%). In mid-sized firms with 10-49 attorneys, 56% of the lawyers had access to litigation software, and in firms with 50-99 attorneys; the availability rate was 91%.

While the software was readily available to so many attorneys, it was not used as often as one would expect (see Table 4). Only one in four (24%) used litigation support software regularly. Surprisingly, large-firm attorneys (over 100) reported using litigation support software significantly less (12%) than firms with 50-99 lawyers (37%). Large firms reported 27% used it occasionally, while 18% seldom took advantage it. Those remaining (36%) reported that they never used it. Interestingly, the individuals that did use the software regularly included other attorneys in the firm (48%) and support staff with specialized litigation training (44%). Very few support staff with no specialized litigation training (3%) use the software.

Respondents wrote in which specific software packages were being used by the firm. Summation, Concordance and Casemap were the top three products specified for large firms, while Casesoft appeared in the top three for smaller and mid-size firms (2-49).

Over two thirds (78%) of the large firm respondents agreed that transcript and document management are very important features to have in litigation support software, along with document imaging (65%). Features such as trial presentation functionality and access to Internet/Intranet/Extranet were deemed very important by 47% and 43% respectively. For large firms, features such as barcode scanning and real time transcription tools were judged somewhat or not very important.

Motivating factors for purchasing litigation support software are also captured in the survey. For large firms, cases with high demand or potential liability are very likely (27%) or somewhat likely (30.3%) to cause a firm to invest in the technology, while opponent's use of the software was not at all likely (36%) to spurn a purchase. A client's request for litigation support software was by far the most compelling reason for large firms to make this type of investment (66%).

In conclusion, the survey shows that while litigation and courtroom technologies exist, they have yet to be used at the mainstream level as that of word processing, spreadsheets, and other business applications. There are still many processes and procedures to work out to effectively use technologies such as electronic discovery and e-filing. Cost barriers, lack of need, and lack of training still keep hardware and software under the radar, although often the larger firms will embrace the technology earlier. It appears that until clients demand the pervasive use of these technologies, their acceptance and implementation will continue to be slow.

For more information about the survey, see: www.lawtechnology.org.

 

Copyright © 2004 ALM Properties, Inc., All rights reserved; Catherine Sanders

Copr. (C) 2005 West, a Thomson business. No claim to orig. U.S. govt. works. This article is reprinted with permission from West, a primary sponsor of the General Practice, Solo and Small Firm Division.

Catherine Sanders Reach is the Associate Director of the American Bar Association Legal Technology Resource Center. She can be reached at Catherine.Reach@americanbar.org.

 

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