Litigation and T.A.R.

ABA TECHREPORT 2016

Stephen Embry is a member of Frost Brown Todd LLC and is a member of the Firm's class action and privacy groups. He frequently defends participants in consumer class action litigation and mass tort litigation. Stephen is a national litigator and advisor who is experienced in developing solutions to complex litigation and corporate problems. His mission is to find simple, successful, and elegant solutions to the problems posed by complex and substantial civil litigation, primarily in the mass tort and consumer class actions, and privacy and data breach arenas. Find him on Twitter @sembry244 or on LinkedIn.

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What’s New?

As they have been for several years, litigation, the use of technology in the courtroom, and e-discovery continue to be some of the most popular topics in legal technology. While there continue to be a myriad of software choices in these areas, much of the hardware and software actually used remain mainstream options.

For example, laptops have gained ground as the technology of choice among many lawyers in the courtroom, while changes in the fields of e-discovery and use of trial presentation hardware and software remain somewhat stagnant. Bottom line: more lawyers are using technology in the courtroom although the purchase of and training on courtroom presentation technology shows little increase.

Second, the technology gap between large firms and small firms continues to grow. In the courtroom, this means more reliance on “do it yourself” methods by small firms, and the use of specialized staff or consultants by large firms. In the hardware and software worlds, this means less investment by small firms and greater access to technology tools by their larger counterparts. In the e-discovery world, this equates to increased use of software and consultants by large firms while small firms struggle along the best they can. And as pointed out last year, the gap has not been closed by simplified apps that deliver a level of sophistication and service.

What Are the Key Takeaways?

  • Both the use of laptops in the courtroom as well as the ways in which they are used have been increasing. The use of smaller mobile devices like tablets and smartphones in the courtroom has stabilized. Laptops have incorporated tablet functionality and ease of use, and, of course, can generally do more.
  • For the first time, over half the respondents now report using technology in the courtroom. However, the purchase and leasing of pure courtroom hardware by both lawyers and courts shows no significant increase; in some instances it is even decreasing.
  • Courts seem to devote their energies and resources to increased support and offerings of evidence hardware as opposed to other hardware options.
  • The gap between large firms and small firms in available hardware and software, IT staff and assistance, training, and overall resources continues to be broad and vast. This has repercussions for the quality of service to underserved legal needs and the continued health of smaller firms that play such a key role in society.
  • Mandatory and voluntary electronic court filings in state and local courts continue to increase and have become the norm.
  • E-discovery requests continue to rise and are also pretty mainstream.
  • Predictive coding and technology assisted review (T.A.R.) have not yet caught on or become mainstream. Simple solutions and keyword searching remain the tools of choice.

Who Responded?

Let’s take a look at demographics: 78% of the respondents were from firms of less than 50 lawyers. This skews the results slightly; firms with 50+ lawyers typically have more IT and technology resources. In addition, the ABA 2016 Legal Technology Survey Report size of some of the larger firms (500+) was only 7%, thus the responses from this limited number may not necessarily reflect what is happening in these larger firms.

In addition, the average age of respondents indicated is 54. 41% percent of the respondents were 60 or older. While many in this age group may be early adopters and fully conversant and comfortable with technology, they also came of age as lawyers when technology was not as ubiquitous as it is today. Whether this skews the result is not known. Finally, it’s important to note that the 2016 Survey was directed to lawyers in private practice only—not in-house lawyers where clients may ultimately drive more changes across the board.

On the plus side, 70% of the respondents were courtroom practitioners.

One other demographic note: the billable hour is still king among our respondents.

Consciously or subconsciously, the incentive to adopt time-saving technologies for those on an hourly pay scale is different than it is for those who are not.

In any event, the demographic of respondents remains roughly consistent with last year, which allows for valid year-to-year comparisons.

Technology in the Courtroom

Significantly, the percentage of lawyers not using technology in the courtroom at all continues to drop. The percentage of those not using courtroom technology in 2016 was 45%, compared to 51% in 2015, 54% in 2014, and 52% in 2013. For the first time, over half the respondents now report using technology in the courtroom.

Whether this reflects the adoption by more states of Comment 8 to Model Rule 1.1 (requiring that lawyers kept abreast of developments in technology), increased availability of resources and cost decreases, or some combination of all these and other factors is unknown.

Laptop Use in the Courtroom: Why?

Laptop use in the courtroom experienced an increase over last year, with 55% reporting using a laptop for various tasks, compared to 49% in 2015, 46% in 2014, 48% in 2013, and 50% in 2012.
Why the upswing? In previous years, smaller mobile devices like the iPad were stealing a chunk of the laptop business. Laptops continue to morph into hybrids (like the Microsoft Surface Pro or Lenovo Yoga), and the old terminology and dichotomy between the traditional laptop and tablet is becoming less and less relevant. As predicted in last year’s analysis, as laptops continue to get lighter, thinner, and incorporate multi-touch screens, their use is increasing.

We are seeing the benefit across the board by incorporating this type of tablet functionality in laptops. This—combined with the fact that laptops are versatile, easy to use, and can perform so many other non-courtroom tasks—has made them, at least for now, the choice of litigators. The usage pattern continues to evolve.

The top uses for laptops in the courtroom according to the 2016 Survey include:

  • 35% to access key evidence and documents (28% in 2014) (still the top use)
  • 32% to access internet (25% in 2014)
  • 30% to conduct online research (24% in 2014)
  • 30% to check emails (27% in 2015)
  • 28% to deliver presentations (24% in 2014)

What is interesting, though, is the significant increase in use of technology almost across the board from 2014 to 2015 for firms of all sizes (except the 2-9 attorney range).

The biggest increased use continues to be in accessing key evidence and documents in the courtroom. As expected, firms of 100+ attorneys are most likely to use a laptop to access key evidence and documents, with 64% reporting use. However, some 46% of solos reported that they would use a laptop for online research—a significant gain that also reflects increased competence.

Given the increased development of mobile apps, tablets, and cloud computing, it is no surprise to see this increase in accessing key evidence and documents in the courtroom. Evidence is being stored in the cloud using low-budget tools like Dropbox/Box, and higher-end e-discovery tools like Relativity (and everything in between), and then accessed from mobile devices like laptops, tablets, hybrids, and even smartphones.

What About Tablets and Smartphones?

Use of tablets in the courtroom continues to remain level (or perhaps maxed out), with 37% of respondents report practicing in the courtroom with a tablet device, compared to 35% in 2015, 37% in 2014, and 34% in 2013. Not surprisingly, the top uses of tablets in the courtroom are the same as last year: email (30%), internet access (23%), calendaring (22%), and online research (23%). 12% report using their tablet to access key evidence and documents, compared to 16% in 2015; another indication that laptop hybrids earned back some of that market share.

Smartphone use in the courtroom shows a slight increase from 76% last year to 80% this year, compared to 77% in 2014 and 74% in 2013. This continued increase, likely reflects the larger screens, greater capability and general increased use of smartphones. As expected, the greatest use of smartphones in the courtroom is to check email and calendaring. The least popular use was for conducting online research and accessing court documents. This reflects the clear preference to use laptops over tablets to conduct these activities.

What Hardware is Supported or Provided by Courtrooms?

The number of courts that reportedly provide or support audio and video display hardware has remained fairly consistent over the past several years.

Annotation hardware is provided/supported in courtrooms at fairly low levels (the highest reported available hardware were touch screens at only 16%). Only a few courtrooms were reported as having things such as telestrator and light pens available.

The audio hardware supported or provided also reportedly stayed fairly constant, or, in some cases, slightly less than last year. Also remaining very constant:

  • 57% reported again in 2016 that projection screens were provided (versus 56% last year)
  • 46% reported that digital projectors were provided (39% in 2015)
  • 50% reported having a single monitor for the courtroom (the same as last year)
  • 34% reported having individual monitors for trial participants (29% in 2015, which is an encouraging increase)
  • 14% reported having a whiteboard (10% in 2015)

These numbers represent no significant change, which is disappointing.

Real-time reporting equipment to court monitors only increased from 13% reported in 2015 to 18% in 2016, and real-time reporting equipment delivering the transcript to individual lawyer monitors also only increased from 15% last year to 18% in 2016.

The largest increases, however, were in evidence hardware:

  • Evidence and document cameras increased from 17% in 2015 to a whopping 26% in 2016.
  • Laptops with presentation software increased from 14% to 22%
  • Integrated lectern/evidence presentation units increased from 13% to 20%

These are significant and encouraging gains and may reflect both the decreased costs of these goods and greater availably of the integration of these tools with existing hardware.

However, large numbers of respondents simply are not aware of which hardware is provided or supported in their courtrooms. Despite over half of the respondents reporting using courtroom technology, a large number still report they use none of the courtroom hardware that is available.

In many categories, the use of the hardware provided and supported is declining or remaining stagnant. This lack of awareness and use suggests there is not enough demand for courtrooms to supply hardware and support for the overall numbers to increase. The “build it and they will come” theory doesn’t work, since large numbers report not using the hardware that is already available.

The increase in laptop use (see above) suggests that future courtrooms will use technology that can support laptops and other, more advanced hardware.

The Have and Have Nots: What are Lawyers Buying and Leasing?

The answer appears to be: not much. 73% of the respondents shared that they or their firms did not own or lease annotation hardware, 52 % had no display output hardware (up from 40% last year), 51% had no courtroom presentation hardware (up from 39% last year), and 88% had no transcription hardware (about the same as last year). On the plus side, 84% said they owned or leased audio courtroom hardware (up a staggering 20% year over year).

Why so little investment? In part, it may reflect a reliance on what is in the courtroom, limited as it may be. Unfortunately, there seems to be the notion that we will simply use what’s available and not seek improvement. In part, it may be due to the declining number of trials which makes the investment hard to justify. This finding could explain why the use of laptops, tablets, and smartphones in the court room is relatively high while trial-related hardware is low. Nonetheless, in the long run, the combination of lack of purchased or leased technology hardware and the lack of technology in the courtroom could represent a significant disconnect with jurors accustomed to learning and being persuaded by technology aids.

As suspected, large firms had much more owned and leased hardware at their fingertips than smaller firms, giving these firms a potential trial advantage. The most purchased and leased hardware were laptops with presentation software, likely reflecting that these devices have multiple uses beyond the courtroom, making the expenditures easier to justify.

Who is Operating the Technology?

Who makes the courtroom technology work depends almost entirely on the size of the firm. While overall, 34% of the respondents operate their own technology in the courtroom, 48% of the solos do while only 10% of the large firm lawyers do.

Importantly, 45% of the respondents report having no technology support staff. As expected, there is a huge gap between small and solo shops (77-50% respectively) and large firms (almost all have support).

What About Training?

Again, the number of respondents with training in courtroom technologies appears low (28% in 2016 versus 26% last year). And surprisingly, some 63% of the litigators and 72% of lawyers report not being trained in courtroom technologies. As suspected, the large firms (100+) lead the way in training.


Why no training? The answers are interesting. The top reason given is that training is not available (41%). This number comes primarily from solo respondents (46%). This is an increase from 34% last year. 30% said the courtrooms don’t have the technology (so in essence, why train?). 30% said they don’t practice in the courtroom frequently enough to justify getting trained, again perhaps reflecting the declining number of trials. 16% said training was too time-consuming, with most of these responses coming from firms of 100+ lawyers (a short-sighted view in my humble opinion), and 23% said it wasn’t necessary (again, primarily fueled by responses from lawyers in large firms).

(Note: remember though, there were fewer responses in almost all categories from large firm lawyers, so these figures can be questioned. Also, many of these firms have IT departments that frequently run the courtroom technology, making individual lawyer training less important.)

These numbers are all pretty much in line with the 2015 responses.

Most lawyers seem to opt for on the job training; that is, they simply practice using the technology that’s available in the courtroom before they go live (70%). This effort may reflect the notion that we learn what we need to learn when we need to, not beforehand. It also reflects that many of us, perhaps, still perceive technology to be an insignificant aid in our courtroom storytelling as opposed to indispensable to telling our stories in the most persuasive way.

What About Software?

The litigation support software available at the respondents’ law firms continues to dip, which is another surprise.The highest number (36%) report that their firms have litigation support software (a dip from 42% last year and from 50% as recently as 2013). Deposition management software (29%) and trial presentation software (27%) has also dipped close to 10 points from 2013.

While larger firms have much greater access to software (69% as compared to 12% at solos), the big firm investment in software declined from 82% last year to 69% in 2016. When asked whether their firm had purchased software in the last six months, 66% said “no” and some 28% said, “don’t know.” This suggests a lack of interest in these technologies.

Why these drops are occurring is uncertain. It could be a general belt-tightening or the lack of need for these tools given the decline in trials. It could be just a lack of demand by the lawyers in the firms. Perhaps some of the software previously purchased is now available in cloud-based applications. It’s disturbing since litigation software has many uses apart from purely trial practice.

Relatedly, when asked what features of litigation software they liked the most, 55% said they simply used none! Of those that did, some 34% said the feature they liked the most was full text searching, a tool that is generally available on many software platforms that have no unique litigation features. This was down from 43% last year.

The feature with the biggest increase from last year? Redaction (from 5% last year to 21% this year). Bates stamping, annotation, and generating exhibits also showed modest increases from last last year.
Of those lawyers who used trial presentation software, PowerPoint was the most frequent software mentioned, although other software is gaining ground. 59% of respondents reported using PowerPoint, down from 88% last year, 29% use Summation (up from 21% last year), 25% use TrialDirector, 14% use Time Pad, and 12% use Time Map.

The most popular litigation support software was Summation Pro (29%) and the most popular deposition software was e-trans (33%).

The respondents’ clear choice for hosting software was internal (22%); only 7% would prefer it to be in the cloud. However, a very large percentage either had no preference, didn’t use it, or just didn’t know.

Electronic Filing and Documents

The frequency of electronic filings with court systems continues to increase and has clearly become the norm. Overall, 85% of the respondents say they now file documents electronically with courts, up from 80% last year. Respondents report that the number of courts that allow electronic filings and the number of courts that require it have slightly increased over last year. The unavailability of electronic filing is highest in the Northeast (19%) and lowest in the Midwest (2%). These rankings are by and large the same as last year.
Some 78% of the respondents report receiving electronic documents. This is a slight increase over last year.

E-Discovery

The percentage of those who never receive requests for e-discovery continues to fall, from 44% in 2014 to 36% in 2016. The number of attorneys who never make e-discovery requests also fell, from 47% in 2014 to 37% in 2016. The number of firms involved in cases where processing of e-discovery is necessary remains fairly constant at 45% and increases with firm size.

How Do Lawyers Review and Process E-Discovery?

  • 43% don’t use any sort of e-discovery review solution and one-third don’t use any sort of cases analysis solution.
  • The primary tool used to review e-discovery materials remains keyword searching (78%). Only a few used concept searching and predictive coding. These numbers have changed little from last year.
  • Only 15% report using predictive coding to process or review e-discovery materials. The lowest percentage of use was at solo shops (7%), with the highest being at firms of between 100-499 lawyers (39%).

Of those that review and process e-discovery, 26% prefer a “simple review” solution (a tool focused on the basics of review), with only 11% opting for a “sophisticated review” solution (a tool that includes advanced review functionality and analytics). Ease of use (60%) and price (47%) were the key determining factors in choosing and using a case analysis solution.

Keyword searching remains the most favored technique for processing and reviewing e-discovery materials (78%), with concept searching second (31%), and predictive coding a far distant third (15%).

Use of Predictive Coding

Of those using predictive coding:

  • The key determinative factor whether to use this tool is the number of documents (64%) and the deadlines imposed upon the lawyers (61%).
  • 57% believed that the size of their cases simply did not warrant using this tool.
  • 29% couldn’t justify the cost.
  • Almost 24% of the respondents were prompted to use the technology by inside counsel who are likely more concerned about the efficiencies that predictive coding brings to the table.

Only 16% claimed that they were not familiar with the tool. Interestingly, 44% of respondents at firms of 500+ lawyers had concerns about this technology. The next highest percentage of respondents reporting this concern was 17% among solo practitioners.

Such a striking anomaly may be explained by the small number of respondents from the very large firms who by coincidence may be lawyers who don’t trust this technology. Or it could be that large firm lawyers do not have sufficient hands-on experience with the technology to clearly understand it (larger litigation support staffs and outsourcing resources may handle much of this for large firm lawyers).

When used, predictive coding was primarily used by respondents for document prioritization.

Some Additional Interesting Findings

Another interesting finding: 44% of the respondents never bother to perform any sort of early case assessment.

Finally, the number of attorneys using outside litigation support bureaus (32%) and forensic specialists (32%) remains relatively constant in the 2016 Survey. There is a clear preference among larger firms to use support bureaus and e-discovery consultants (52%); smaller firms are more prone to use computer forensic specialists (25%). Almost none of the respondents reported outsourcing e-discovery work to lawyers outside of the U.S. (2%) and only 12% reported outsourcing to lawyers within the U.S., down from 22% last year.

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