General Practice, Solo, and Small Firm Division
The Compleat Lawyer
Summer 1997 copyright American Bar Association. All rights reserved.
J. Michael Jimmerson
J. Michael Jimmerson is a technology consultant and founder of Legal Counsel & Computing. He is the co-author of A Survival Guide for Road Warriors, a best-selling book on mobile computing for lawyers, published by the American Bar Association. His next book, Windows for Lawyers, is scheduled to be released in the fall of 1997. He can be reached by phone (773/506-9870), e-mail (firstname.lastname@example.org) or the Web (www.legalcounsel.com).
Be prepared, recommend the Boy Scouts, and in truth the difference between a good litigator and a great one is preparation. Too often we learn this lesson the hard way. Managing and developing your case using technology can give you a competitive edge and prove the difference between winning and losing.
You can start to apply technology tools at the inception of every case. Before you take on a new case, you need to investigate the facts and determine the applicable law in evaluating the strength of your case. During your investigation, create an "electronic note" that details the facts of the case. These early notes can serve as the preliminary outline for your trial notebook, detailing the available facts and those requiring further development. Some litigators begin preparing their closing argument and presentation at the very inception of the case, honing and refining them up until the moment of trial.
In addition, you will need to determine the applicable law. Using either automated legal research (ALR) or the Internet, you can quickly determine if there are any holes in your case. Or check for expert witnesses that you might consult. Also, you can check for similar cases or fact situations to your case.
If your research locates any useful information, capture this data in electronic form. Doing so will allow you to quickly retrieve that information without pawing through sheaves of legal pads and random notes. Too often, we capture critical details on a yellow pad or Post-It note, throw it in the file (hopefully) and promptly forget about it. If you organize the case and its information from the outset, you will have instant access to anything bearing on the case.
Naturally, you will use a word processor to draft the complaint (or answer) as well as any motions. Take the time to collect these pleadings in electronic form in a central repository set aside for the case. Consider requesting copies of any pleading filed by the other side in electronic form. You can accomplish this by offering to do the same. If interrogatories and answers are filed, these should be converted to electronic form for easy retrieval and cross-referencing.
If you are not using a document management program, you will have to make do using a system of file directories (folders) and file-naming conventions. Create a central directory for all of your documents (e.g., C:\Data). Then create a subdirectory for each of your clients (e.g., C:\Data\Smith). If you have more than one matter for any one client, create additional subdirectories. This system will make it easy for you (or your secretary or paralegal) to find client documents quickly. In the event that the folder gets too large, consider creating separate subfolders for pleadings, deposition transcripts, memos, etc.
Windows 95 users can take advantage of long file names when creating documents. A file named Smith Complaint - First Amended.doc is certainly easier to locate and recognize than one named smithcmp1.doc. Windows 95 also gives you the ability to find documents by file name or contents across your entire hard disk. You have the tools - use them.
Some specific software tools can prove invaluable in handling a hefty docket. Case management software can track the entire course of the case, apprise you of important deadlines, and organize random notes and key issues. The calendaring system in these programs often provides reason enough for purchase. Malpractice carriers have even begun requiring electronic docketing and calendaring systems.
The discovery process is the ideal environment for using technology. Never leave a completed deposition without ordering a copy of the transcript on a diskette. The cost of an electronic transcript is minimal and can be quickly recouped when searching for critical information. Rather than spend hours poring over a deposition for a certain bit of testimony, search the transcript in seconds using your computer. Your client will appreciate the cost-savings.
Also, in certain situations, you will need the transcript on a short turnaround. Many court reporters are using real-time transcription to create transcriptions as the deposition proceeds. If you are linked to the court reporter's computer, you can see the questions and answers as they are given. At the end of the deposition, the court reporter gives you a diskette that you can immediately use for the next day's deposition, hearing, or trial. Taking advantage of these timesaving methods can provide a winning advantage. If the other side is not using these tools, you have gained the edge in preparation. If the other side is using the latest technology, you may be committing malpractice if you are not.
In more complex cases, you may need to create document or image databases or to use litigation support tools. You must decide early on if this technology is appropriate in the case at hand. You should always err on the side of caution. Better to be over-prepared than to be caught short just before trial. If you suddenly have to organize hundreds of thousands of documents just before trial, you will not be able to do so adequately. Deciding when to use technology is just like applying any other resource to the litigation process. The key question is whether the cost of the resource (technology) can be justified to the client as necessary in pursuit of the claim.
During the pretrial stage, you can continue to apply technology tools to the case. Evaluate the damages using a simple spreadsheet program. This is an effective way to summarize the various elements of the damages claim and to make updates right up to the day of trial. In cases involving structured settlements, a spreadsheet can help evaluate various "what-if" scenarios.
By this stage, you should have assembled an electronic file of the pertinent precedents and authorities. This information will prove invaluable as you prepare your electronic trial notebook that sets forth the elements of the case that must be proven to prevail. Missing an element of proof is a recipe for disaster but an electronic checklist or outline can prevent such a grievous error. Case authorities are also valuable in preparing non-standard jury instructions. Cases are often won or lost on the instructions. Too often, lawyers wait until the last moment to prepare them.
During the trial, you will have several opportunities to apply technology when presenting your case. Presentation software is extremely useful in outlining your points as you develop your argument. However, you must be comfortable using the technology and you should always have a fall-back position if things go awry (remember Murphy's law). Always check the courtroom facilities in advance of trial and get the judge's permission before using any technology in the courtroom.
If possible, have an assistant with you to run the computer while you are presenting to the jury. If you are a solo, this could be your secretary, legal assistant, or law clerk. If you attempt to do everything at once during trial, you will likely fail to do anything well. Only an accomplished litigator who is extremely comfortable with technology tools would attempt to do a trial without an assistant. And such a person would probably still opt for help.