Using Technology to Prepare for Trial

Vol. 31 No. 5

By

Daniel K. Gelb, Esquire, is a partner at the law firm of Gelb & Gelb LLP in Boston, Massachusetts, where he practices in the areas of general and white collar criminal defense, regulatory and academic proceedings, complex civil litigation, and arbitration.

One of the most—if not the most—crucial components of the American legal system is the trial. Whether it be before a jury or a judge, the trial is the ultimate fact-finding mechanism used to resolve disputes, and it is a process that is constitutionally guaranteed. Although the trial process may be guaranteed, the results are not. However, lawyers are more likely to obtain a favorable result for the client when they provide an efficient, state-of-the-art effort in both the preparation and presentation of the case.

Regardless of whether they concentrate on civil, criminal, regulatory, or probate litigation, it is imperative not only that counsel know the law and facts of their cases but that they stay ahead of the technological curve. Trials are the culmination of the process by which the facts are presented to juries, judges, arbitrators, and regulators, and in most instances appellate review is limited to the application of law rather than evidentiary issues.

It is incumbent on today’s practitioners to understand the types of technologies available and how best to implement them in order to increase productivity and reduce costs. The purpose of this article is to provide readers with an overview of how to leverage computer technology to best position the claims/defenses that clients look to counsel to purse/defend for them effectively. The brands identified herein are simply examples rather than endorsements, and readers are encouraged to research and review as many service providers as possible to determine the best fit for their practice.

The “Office Update”

The proliferation of computer technology—and the “cloud” in particular—has reinvented the practice of law. Technological advances have redefined traditional notions of law practice management, unifying access to remote document review and collaboration solutions across devices. If practitioners properly host case documents and data in the cloud, it no longer matters—for the most part—whether a litigator is at his or her desk or in the courtroom. Additionally, such platforms facilitate collaboration with clients and other team members.

Hardware: Pick your preference. The first step when integrating technology into trial practice is to make sure your office undergoes a technological update with respect to computer hardware. It is important to budget for productivity systems used for preparing one’s case as well as presentation tools for use outside of the office—for example, a tablet computer such as Apple’s iPad (apple.com) or Microsoft’s Surface (microsoft.com), projector and/or mobile scanner, printer, etc.

In the past, the brand of computer purchased could prevent counsel from using certain software. Now, thanks to dual-operating software such a Parallels Desktop (parallels.com), the range of available options has expanded whether one uses a “PC” or “Mac.” Lawyers can purchase an Apple computer or a Windows-based system (e.g., Dell, Lenovo, Acer, HP/Compaq, Asus, etc.) based on their preferences and, for the most part, still run the desired software.

Software: Strategic convenience. The second step in updating one’s office is the “software” update. Choosing computer software is an important decision for trial preparation. Although the software that counsel elects for trial preparation is in many ways a strategic commitment, the reality is that many solutions and products are delivered to the end user as “services,” which typically can be canceled or reconfigured at any point in time. This concept is commonly referred to a “SaaS” (Software as a Service). The consumer pays for a license to use centrally and remotely hosted software on a subscription basis.

Most SaaS providers charge subscription fees; however, numerous SaaS models that rely on cloud technology, such as Apple’s iWork for iCloud (icloud.com) and Microsoft’s OneDrive (onedrive.com; formerly “SkyDrive”), can be used free of charge. (Certain “in-app” purchases still may arise.)

Apple’s iWork suite offers word-processing productivity (Pages), a spreadsheet numerical analysis program (Numbers), and a slide presentation program (Keynote). The productivity software is accessed via the iCloud website under each user’s iCloud Apple ID profile. The data residing on Apple’s servers also syncs across other iCloud-compatible devices such as the MacBook, iMac, iPad, and iPhone. However, accessing and syncing changes to files and data locally on one’s device—and not through the web-client version of the programs—requires users to purchase the applications for their Apple devices (laptop, tablet, desktop, etc.).

Microsoft’s OneDrive provides a similar service. Like iCloud, OneDrive offers cloud-based productivity solutions and data hosting. OneDrive integrates with Microsoft’s Office 365, which, like iWorks, provides a hosted platform on Microsoft’s servers for applications such as Word, Excel, PowerPoint, Outlook, Calendar, and OneNote (office.com).

Cloud-based productivity software allows collaboration during trial preparation. Many firms have multiple attorneys working on a single case, and although they may use productivity platforms hosted in the cloud, large firms, like many businesses, rely on an enterprise model where the data resides on “in-house” servers or remote servers dedicated to the firm, thereby allowing many users to access simultaneously the same electronically hosted information.

However, remote data hosting and productivity tools are not available only to large firms. Many SaaS providers offer services that are perfectly adequate for small firms and solo lawyers to handle their cases. Examples include Uptime Systems (www.uptimesystems.net), Clio (goclio.com), and Needles (needles.com).

Attorneys using any SaaS products that entail hosting client data in the cloud should address the following issues:

  • Disclose the firm’s use of cloud-based document hosting and productivity services (i.e., SaaS) and have the client provide express consent by integrating the disclosure into the firm’s client fee agreement/engagement letter or by otherwise obtaining written permission.
  • Confirm that the data that counsel stores is securely backed up in case of a system failure.
  • Confirm that the data that counsel stores is encrypted in case of a data breach. Many solo practitioners and small firms practice in areas of the law where litigants often redact documents they will ultimately produce to the opposing party, especially as many of these documents contain personal information (e.g., Social Security Number, date of birth, bank account numbers, medical information, etc.). This data can be protected by privacy statutes such as the Health Insurance Portability and Accountability Act (HIPAA) for medical records, the Gramm-Leach-Bliley Act for financial records, and the Wiretap Act for communications.

Pretrial Preparation

Technological considerations for effective case management. Major issues facing trial lawyers are how to integrate technologies without over-complicating cases and incurring unnecessary costs for firms and/or clients. Although there is no single solution, counsel should consider the following issues concerning the use of technology:

  • How many parties are involved in the dispute?
  • What are the budgetary guidelines for the dispute?
  • How will case information be organized?
  • How many witnesses and depositions will be required?
  • How can counsel streamline discovery and motion practice without compromising thoroughness and strategy?
  • How many custodians will likely be subject to discovery requests?
  • What type of case is at issue, and is electronically stored information (ESI) central to the dispute or collateral?
  • Where does the data reside, and what efforts have been undertaken to ensure its preservation?
  • Can evidence be presented to the fact finder at trial as is, or does the information require technological interpretation?

Once ESI is captured and collected, counsel must decide on the format for reviewing, producing, and ultimately presenting it at depositions and trial so it can be authenticated in order to constitute admissible evidence.

There are numerous software solutions—most of which are hosted online—to effectively manage ESI. For example, CaseMap (casesoft.com) integrates features such as optical character recognition (OCR) software for searching across documents and other tools to facilitate collaborative efforts among trial team members. CaseMap employs Microsoft integration and features “DocManager” to view, annotate, Bates stamp, print, and convert files into traditional discovery production formats such as TIFF and PDF.

Uniform pleadings. Utilizing services such as the Westlaw Doc & Form Builder (legalsolutions.thomsonreuters.com) and LexisNexis Research for Small Firms (lexisnexis.com) enables practitioners to streamline the drafting of pleadings and more routine tasks in order to free time for counsel to strategize, communicate with clients, and prepare for and conduct the trial.

If one does not want to spend money on services that automate pleadings with suggested content, practitioners can build their own database using Microsoft Word (office.microsoft.com) or Corel WordPerfect, which includes a dedicated Legal Edition (wordperfect.com). Practitioners are also encouraged to seek out software solutions tailored to their jurisdiction (e.g., TurboLaw; turbolaw.com).

Pretrial Practice (AKA “E-Discovery”)

Digital forensics. Using professional certified digital forensics consultants when capturing and imaging ESI is a crucial component of effective discovery and trial preparation. The volatile nature of ESI can impact admissibility. A defensible chain of custody and expert certification of the procedures used for data capture is important for evidentiary value and subsequent authentication at trial.

Many electronic discovery (e-discovery) vendors provide forensic collection services in addition to managed, hosted review. Regardless of the company chosen, the forensics technician should have credentials such as the Certified Cyber Forensics Professional certification (CCFP), Digital Forensics Certification Board membership (DFCB), and training on forensic software preservation and collection tool kits such as EnCase (guidancesoftware.com) and Forensic Toolkit (FTK; accessdata.com). Effective trial preparation requires practitioners to employ court-accepted forensics practices so as not to place a client’s case in peril by lacking an indispensable foundational element of a piece of ESI.

Document review. Complex litigation matters involving large volumes of documents in the form of ESI are no longer relegated to large firm practitioners. Small firms and solo practitioners can effectively manage large volumes of data for review and production.

Web-based document hosting and review tools have become increasingly powerful and affordable in contrast to traditional hard-copy review. Computer-assisted review may be appropriate if the volume involved in a given matter makes traditional hosted review of documents impractical or otherwise cost prohibitive.

Numerous online document review tools leverage cloud technology to create an “omnipresence” of one’s data. In other words, attorneys can access work product and document management projects wherever they have an Internet connection. More than ever before, practitioners are utilizing cloud-based data hosting and productivity services for the management of information and projects. Services such as FilesAnywhere (filesanywhere.com), Dropbox (dropbox.com), and ShareFile (sharefile.com) provide tools including but not limited to file transfer protocol (FTP) and related mechanisms for the management and transmittal of large amounts of data. Google (google.com) also provides such services.

Examples of e-discovery review services are Cicayda (cicayda.com), Case Logistix (legalsolutions.thomsonreuters.com), Nextpoint (nextpoint.com), Relativity (kcura.com/relativity), Epiq Systems (epiqsystems.com), Driven (driven-inc.com), Recommind (recommind.com), and ImageDepot (imagedepot.com). Some e-discovery review software, such as Concordance (lexisnexis.com) and Summation (accessdata.com), can run both locally on counsel’s own systems as well as off-line. Some vendors offer propriety review tools and others have alliances with hosted e-discovery SaaS vendors that provide the review platforms on which the software runs.

There are many review options across the e-discovery marketplace, and practitioners should examine as many platforms as possible to determine which best fit their clients’ needs and budgets.

Depositions. Depositions are critical to building a case. The litigation support technology sector recognizes this and has developed tools to monitor testimony in real time, securely stream it over the Internet, and link exhibits by embedding hyperlinks into the transcript.

Examples of this technology include deposition management tools that integrate with the above-cited Summation and Concordance. There are also emerging technologies and services such as LiveDeposition (livedeposition.com) for taking web-based depositions.

Document production. Not only are the aforementioned tools helpful for the review of data, they also can be utilized for the organization and production of documents—unless a specific format must be adhered to in a case. In addition, PDF annotating software (e.g., Acrobat XI Pro; adobe.com) enables solos and small firm practitioners to process large volumes of documents in-house with Bates stamping and redacting features.

Find Your Leverage

The latest technologies, when leveraged correctly and effectively, provide tools that are essential for trial lawyers. There is no case too large or complicated for small firms and solo practitioners who keep themselves informed and current regarding the technologies available for the preparation and trial of their cases.

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