May/June 2003  Volume 29, Issue 4
April 2003 Issue
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Litigation Trends: What's on the Horizon?
 
LPM asked speakers at ABA TECHSHOW® 2003 to tell us what's next for litigation technology. Fasten your seatbelts.

The Multimedia Courtroom
Digital presentations are an emerging trend in the way trials and trial practices will be managed in the future. Currently, digital presentation tools are an extravagance for most and a necessity for few. However, with increasing exposure to multimedia presentations, the day will come when clients, jurors and judges expect the multimedia experience. Images displayed by digital projectors capture and hold an audience's attention-and that makes a difference, whether you're meeting with staff, clients or other lawyers or presenting a case to a jury.

Digital presentations provide an enhanced ability to persuade. Beyond persuasion, they deliver ideas more effectively. By connecting a projector to a computer, you have instant access to electronic information from local and network files and Web sites. With digital projection, everything you need is as close as your keyboard. What's more, by projecting data from your computer onto a screen, you can use meetings as real-time document editing and revision sessions.

David L. Masters ( dlm@masterslawfirm.com) is Principal Attorney of The Masters Law Firm, LLC, Montrose, CO, www.masterslawfirm.com.


High-Tech Bricks and Mortar
More and more, judges and court administrators are recognizing and implementing the infrastructure that will support high-tech trials. "If you build it, they will come" is a recognition that the tools must be in place to allow the entire administration of justice to consider, develop and incorporate new ways of conducting trials. For example, the Supreme Court of British Columbia has built a high-tech, high-security courtroom from the ground up, incorporating many innovative technologies to accommodate large-scale and document-intensive trials. We are seeing leadership and forward thinking in what has been a very traditional aspect of the administration of justice.

David J. Bilinsky ( daveb@lsbc.org) is Practice Management Advisor & Staff Lawyer for the Law Society of British Columbia, Vancouver, BC, www.lawsociety.bc.ca.

Smart Technologies
So far, litigators have shown only modest interest in expert systems, document assembly and other legal "knowledge tools." This somewhat results from the tendency of most lawyers to view their work as less amenable to automation than it really is. And litigation is admittedly more fact-intensive and interpersonal than much transactional practice. But intelligent tools for managing both overall case strategies (such as CaseMap) and vast volumes of data (such as automatic coding software from vendors like Engenium, Valora and Attenex) will find increasingly conspicuous places on litigators' desks. Trials themselves will also benefit from technologies that are smart as well as visually appealing.

Marc Lauritsen ( marc@capstonepractice.com) is President of Capstone Practice Systems, Inc., Harvard, MA, www.capstonepractice.com.

Client-Centric Web Sites
Trial law firms will start marketing themselves by building Web sites that discuss their clients and the results achieved for them. This departs from the current firm-centric approach to Web sites, where law firms talk about themselves, their attorneys and their practice areas. The successful sites will be built around client industries, and not around internal practice groups. Firms that attract new business will describe client successes in business English and recount the case from the client's point of view. Client-centric marketing is the wave of the future for all lawyers, but particularly for trial lawyers.

Larry Bodine ( lbodine@lawmarketing.com) is a Web and Marketing Consultant in Chicago and master of www.LawMarketing.com.

Transparent Relationships
The line that defines where the law firm ends and the client begins will become increasingly blurred, particularly when dealing with institutional clients. Using Internet-based technologies, an increasing amount of legal work product (which is the aggregate of client instructions, general communications, legal steps taken, documents produced and reports generated) will happen in data-space and, thereby, be available to all the appropriate players all the time. Clients want and will get access to the day-to-day progress on a lawyer's files (tracking a matter through the law firm as if it were a Federal Express package, for instance). Clients also want and will get access to real-time internal accounting data (budgets to actuals, WIP, that sort of thing). And clients will want and get all these things delivered to them in a browser.

This complete transparency will be accompanied by the delivery of increased decision-making authority to the law firm to act in the client's best business interests. This will likely result in a concentration of larger portfolios of legal work in fewer firms. The risks will increase, as will the rewards. The ethical implications are significant. Governing bodies and state bar associations will have a hard time keeping up.

Mark Tamminga ( mark.tamminga@gowlings.com), Chair of ABA TECHSHOW 2003, is a partner in Gowling Lafleur Henderson, LLP, Toronto, ONT, www.gowlings.com.

Virtual Court Time
The walls of the courtroom will come tumbling down. In the past, critical interactions among attorneys, judges, witnesses and others occurred inside the courthouse. Everyone wasted time traveling and waiting around. We are moving toward more virtual meetings aided by ever less-expensive, richer telecommunications. Courtrooms will not disappear, but lawyers will connect much more effectively with trial team members back at the office, across the country and around the globe. High-speed "cell phone" networks will extend the Internet and intranets into older, unwired courtrooms, allowing lawyers to communicate quietly and immediately with virtually anyone and any resource.

Wells H. Anderson ( wa@activepractice.com) is President of Active Practice LLC, Minneapolis, MN, www.activepractice.com.

Digital Smoking Guns
The most remarkable legal IT trend we have witnessed has been the burgeoning of electronic evidence. Evidence has been electronic for some years, but until recently paper production of documents remained the norm. Increasingly, evidence is being produced and then manipulated and managed in electronic form. This is becoming standard procedure in larger cases and is fairly common in federal court cases. In the state court system, the groundswell is just getting under way. The field of computer forensics has been growing by leaps and bounds as lawyers seek, in particular, deleted but recoverable evidence. Perhaps one of the more remarkable statistics is that studies have shown that 10 percent of people told to delete files from their computers will refuse or otherwise fail to do it. Bless them, they make a travesty of document retention policies and often provide digital smoking guns.

Lawyers are still acclimating themselves to the world of electronic evidence and frequently find that their lack of knowledge in this area can be a significant handicap-particularly if their opponent has a fair degree of expertise. Re-educating the profession to think in terms of electronic rather than paper evidence continues to be a challenge.

Sharon D. Nelson ( snelson@senseient.com) is President of Sensei Enterprises, and John W. Simek ( jsimek@senseient.com) is Vice President of Sensei Enterprises, Fairfax, VA, www.senseient.com.

E-Discovery Explosion
Consider that 90 percent or more of business documents are created on computer. Most never make it to paper. E-mail, embedded layers of metadata and deleted-but-recoverable files are the smoking guns dominating future discovery disputes. The bench and bar need to rethink paper-based techniques and learn what electronic documents are and how they're stored, altered and lost. Clients must adapt retention policies and practices to the peculiar tenacity and frailty of digital information. Expect efficiencies of electronic production to be lost near-term to tactical manipulation and allocation of e-discovery costs—and that mechanisms to forestall spoliation of digital evidence will breed unprecedented levels of retention, exploding an already-daunting universe of discoverable material.

Craig Ball ( craig@ball.net) is the principal of the firm Craig D. Ball, PC, Montgomery, TX, www.craigball.com.

Six Steps To Greater Savings -and Lessoned Frustrations
The use of modern technology will allow lawyers to handle litigation more efficiently, more cost-effectively and with lessened frustration throughout the process. Here is a partial list of the types of cost-saving and time-saving changes to anticipate:

  • Lawyers will file and serve pleadings and other documents electronically, paying filing fees with credit cards.
  • Lawyers will have read-only online access to court files, allowing them to review and download filed documents.
  • Law and motion hearings, discovery matters, case management conferences, trial setting conferences and other similar administrative matters will occur via video-conferencing.
  • Documents will, as a matter of course, receive identification numbers, get scanned into a searchable format and then be distributed to all counsel and (if and when necessary) to the court on a CD or DVD.
  • More courtrooms will provide wireless Internet access, allowing lawyers to access files and documents, exchange information with their offices and conduct research as needed during the course of a trial.
  • More courtrooms will be retrofitted to accommodate equipment necessary to allow electronic presentations of evidence and argument aids during trial, encouraging more lawyers to improve the persuasiveness and the effectiveness of their presentations through the use of computer-driven multimedia presentations.

Jeffrey Allen ( jallenlawtek@aol.com) is a partner with Graves & Allen in Oakland, CA, and Editor and columnist for the ABA's GP Solo Technology & Practice Guide and Technology eReport.

Client-Driven Technologies —with Pressure Coming on Strong
Clients involved in litigation are frantically looking for ways to control legal costs. They find traditional law firm approaches to document review, electronic discovery, trial strategy and trial presentation-which typically involve throwing large numbers of bodies at projects-to be increasingly inefficient, costly and unsuccessful. Business clients that know the benefits of collaborative technologies, sophisticated database processing and presentation technologies are confused by law firms that hold on to old techniques. Expect clients to exert heavy pressure to force litigation law firms to adopt technologies that streamline the litigation process, enhance results and control costs. Already, this trend is starting to play out.

  • The trial strategy software CaseMap, from CaseSoft, received a substantial boost when clients who were introduced to useful reports by one of their law firms began to insist that all other outside counsel use the program as well.
  • The benefits of the use of LEXIS's document review management tool (which is based on artificial intelligence technologies developed by DolphinSearch), such as significant reduction in the time and cost of document review, clearly accrue to clients rather than firms-at least under traditional hourly billing arrangements.
  • With several generations now raised on television, most trial presentation methods are seen as primitive, especially when compared to the advertising and video efforts of many businesses. Those business clients will begin to insist that lawyers use updated courtroom presentation methods that are appropriate for today's jurors.

The Consumer Push

A few law firms are trying to get ahead of the curve, but expect a huge push from large consumers of litigation services. Two statistics worth noting from recent Altman Weil surveys ( www.altmanweil.com):

  • The most common reason that law firms are fired is "lack of responsiveness."
  • The most common answer of clients when asked what innovation their law firm suggested to them last year was "none."

In this environment, the trend I call "client-driven technologies" will not only emerge, it may well dominate.

Dennis M. Kennedy ( dmk@denniskennedy.com) is principal of The Dennis Kennedy Law Firm, LLC, St. Louis, MO, www.denniskennedy.com. His Web site includes a page of resources on client-driven technologies.

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