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November 30, 2020 TechReport 2020

2020 Litigation & TAR

Stephen Embry

The 2020 ABA Legal Technology Survey Report was conducted between March and May of 2020, just as the COVID-19 pandemic was beginning. As a result, it may not wholly reflect the usage of technology and trends today. Nor may it necessarily reflect practices once courts fully reopen—in whatever fashion that may be. The “Litigation Technology & E-Discovery” volume was last fielded in 2018 and returned in 2020.

Key Takeaways

The key takeaways from the 2020 Survey regarding the use of technology in the courtroom, training, and e-discovery are as follows:

  • The use of the billable hour is still the primary method of billing by respondents. The average percentage of fees billed by respondents using the billable hour method was 70%.
  • The respondents' demographics significantly skew toward older, more experienced lawyers.
  • The number of lawyers not using technology in the courtroom continues to decline sharply. The use of trial presentation technology by large firm lawyers is pretty standard but not by smaller firms. The types of tasks lawyers are performing with technology in the courtroom are becoming more diverse, suggesting a greater sophistication and comfort.
  •  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 mainstream. Yet many lawyers still use no e-discovery solutions, and a sizable percentage (almost 25%) still do no early case assessments.
  • The percentage of lawyers using predictive coding and technology-assisted review techniques significantly increased, perhaps suggesting these tools are finally catching on. Simple solutions and keyword searching remain the primary e-discovery tools of choice.
  • The troubling technology gap between large firms and small firms in overall resources and technology use continues to exist. In the courtroom, this means considerable advantages in various ways, including trial presentations. 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. This gap continues to have repercussions for the quality of service to under-served legal needs and smaller firms' continued health that play such a key role in society.
  • While the use of litigation support and trial presentation software is increasing, the percentage of firms actively investing in these types of software in 2018 was below 6%. This could suggest a general belt-tightening or at least increase caution. Again, keep in mind that the 2020 Survey was conducted at the beginning of the pandemic.

Demographics

Sixty-seven percent of the respondents were from firms of less than 50 lawyers (compared to 83% in 2018). This skews the results slightly: firms with 50+ lawyers typically have more IT and technology resources. Also, the survey size of some of the larger firms (500+) was small (16%), thus the responses from this limited number may not necessarily reflect what is happening in these larger firms.

The respondents' average age was close to 58 (similar to 2017) and 57% of the respondents reported practicing 30 years or more. The most significant number of partner respondents were 60+ (54%). These ages and years spent in practice may also impact the results. 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.

It's also important to note that the 2020 Survey was directed to lawyers in private practice only—not in-house lawyers who, as clients, may ultimately drive more changes across the board.

On the plus side, most of the responses were from those whose primary practice area was litigation (29%). 69% of respondents report they practiced in the courtroom.

Most of the respondents remain male: 69% were male versus 65% in 2018.

The Billable Hour

One remarkable finding: the billable hour is still the primary billing mechanism (used by 70% of the respondents compared to 60% in the 2018 Survey). From 2017 to 2018, this number declined some 10%, but the 2020 Survey found that this method remains popular.

Use of Mobile Devices in the Courtroom

The percentage of lawyers not using technology in the courtroom continues to drop: 17% in 2020 compared to 21% in 2018, 43% in 2017, 45% in 2016, 51% in 2015, and 54% in 2014. 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), the increased availability of resources and cost decreases, or some combination of all these and other factors is unknown.

Laptop use in the courtroom has increased to 57% of respondents versus 50% in 2018, 57% in 2017, 55% in 2016, and 49% in 2015. The high reported use of laptops may reflect attorney preference over tablets and other mobile devices, or perhaps this can be explained by the fact that laptops continue to morph into hybrids (like the Microsoft Surface Pro or Lenovo Yoga), and the old terminology and distinctions between the traditional laptop and tablet continue to blur.

Respondents from larger firms (100+) are much more likely to use laptops in the courtroom.

The top uses for laptops in the courtroom have shifted a bit since the 2018 Survey:

  • 39% to access critical evidence and documents (29% in 2018)
  • 34% to access email
  •  32% to access court dockets and documents (25% in 2018)
  • 31% to do legal research
  • 25% to deliver presentations (a percentage that interestingly has remained relatively constant despite improvements in technology).

New uses include connecting to court audio and video systems (23%), calendaring (22%), and accessing firm networks (21%). These additional usages indicate more sophistication.

The gap between the percentage of large firm respondents who use laptops and other technology to deliver presentations in the courtroom and solo and small firm respondents continues to exist. This discrepancy in the use of the persuasive techniques afforded by technology remains troubling.

83% of respondents report using smartphones in the courtroom, which has remained relatively consistent with that reported in the 2018 Survey. As expected, the most significant use of smartphones in the courtroom is to check for email and calendaring. The least-cited use was for online research.

The number of respondents who reported using tablets in the courtroom (33%) remained the same as in2018. The top uses of the tablet in the courtroom were calendaring, accessing court data, and real-time communications. The number of large firm respondents using tablets in the courtroom decreased slightly from 32% in 2018 to 26% in 2020. The remaining categories of firms using tablets also dropped slightly.

Training

Again, the number of respondents with training in courtroom technologies, while low, continues to improve (43% in 2020 versus 34% in 2018, 31% in 2017, and 28% the year before that). As suspected, the large firms (100+ attorneys) lead the way in training.

Interestingly, managing partners of firms are most likely to report having received technology training. This training by managing partners may reflect that managing partners are using technology to understand firm economics better.

The training that exists today seems mainly to be learned on the job as lawyers practice before using tools live in courtrooms (68%) and training done by the courts themselves (54%).

Why do some lawyers get no training? Lawyers from larger firms (100+) say it's because they infrequently practice in the courtroom. Solos are more likely to report a lack of availability (25%). Almost 30% of those overall without any training say it's just not necessary for whatever reason.

Thirty-six percent of lawyers using technology in the courtroom say they operate it themselves and 17% say they still never use technology in the courtroom.

Software

The most popular software being used is still litigation support-related (available in 49% of the firms in 2020 versus 38% in 2018), followed by deposition transcription/management software (available in 39% of the firms in 2020 versus 32% in 2018) and trial presentation software (available in 36% of the firms in 2020 versus 27% in 2018). These numbers are all significantly higher than the 2018 Survey, reflecting more significant and perhaps more sophisticated usage.

Eighty-four percent of firms of 100+ report firm availability of litigation software versus 13% of solos, 40% of firms with 2-9 lawyers, and 56% of 10-49 lawyers. This discrepancy continues to reflect the disparity in technology usage between the haves and have nots.

The most popular litigation software remains Relativity (47%), CaseMap (26%), Summation Pro (18%), and Concordance (17%).

Only 5% of the respondents said their firm had purchased litigation support software in the six months preceding the 2020 Survey. In the 7-12 month range, only 6% reported purchasing.

Why the reluctance to purchase? It could be a general belt-tightening or the lack of need for these tools, given the decline in trials. Or 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 besides purely trial practice.

When it comes to trial presentation software, 36% of respondents reported an ability, up from 27% in 2018. This increase reflects a greater understanding of this software as a persuasive device. As expected, the availability was proportional to firm size. 63% of firms of 100+ lawyers had it; only 12% of solos did.

Seventeen percent reported personally using trial presentation software. Again, there was a significant difference between those in large firms and solos. Of those lawyers who used trial presentation software, PowerPoint remained by far the most frequent software mentioned, although other software is gaining ground. 79% of respondents reported using PowerPoint, 26% used Trial Director, 14% used TrialPad, and 13% used Summation. These numbers are relatively consistent with the 2018 findings.

Thirty-nine percent of respondents reported the availability of deposition transcript management software at their firms, up from 32% in 2018. 63% of those in large firms have this tool, but only 11% of solos. These numbers are consistent with those found in 2018.

When it comes to the cloud, 34% still want their software to be housed internally, while 16% preferred the cloud. Remarkably, 20% had no idea; 14% had no preference. This percentage shows either a lack of understanding of the difference or no real interest.

Electronic Filing and Documents

The frequency of electronic filings with court systems continues to increase and has become the norm. Overall, 83% (same as 2018) of the respondents say they now file documents electronically with courts.

Forty-three percent of the respondents who reported never filing said they didn't know how, and 29% said the courts they practice in don't allow it. Some key stats about electronic filing in state courts:

  • 6% say e-filing is voluntary in their courts
  • 47% say it is mandatory
  • 36% say it varies by the court in which they practice
  • 16% say they don't know if it's available

Review and Processing E-Discovery

The percentage of those who have to receive e-discovery requests increased to 70% in 2020. This percentage has continually grown over the last several years. Again, the percentage varies, from a high of 72% at large firms to only 52% at solos.

And the number of firms that report being involved in a case that required e-discovery likewise varies with firm size. 73% of respondents in firms of 100+  versus only 29% of solos.

Forty-one percent of respondents reported they use no e-discovery solution. Most lawyers at larger firms prefer an all-in-one solution to e-discovery mends (45%), while smaller firms prefer a simple review solution. Very few lawyers at firms of any size report wanting a sophisticated review solution. 41% report they never use an e-discovery solution. 23% of all lawyers still don't perform an early case assessment.

The leading solution used by lawyers of all firms remains keyword searching. Significantly, though, the number of lawyers using predictive coding doubled in 2020 to 24%, up from only 12% in 2018. And 31% reported using AI-assisted techniques. 48% of large firm lawyers use AI but only 11% of solos do. This would suggest that these more sophisticated techniques are finally starting to get some traction.

When it comes to outsourcing, the number of lawyers using computer forensic specialists for some reason declined from 33% in 2018 to only 20% in 2020. Some 21% of lawyers report they don't know if they outsource, which frankly is a scary statistic given the ethical responsibilities of lawyers when it comes to e-discovery.

Conclusion

All in all, there were some significant changes from 2018 to 2020—and there are sure to be more in 2021 when the survey will be fielded after we've all been living with COVID-19 for over a year. Where we saw some minor increases in technology use this time, we are almost certain to see higher usage next year. It will be interesting to see whether this impacts the existing resource gap between large and small firms, which is a troubling issue for many reasons, least of which that the health of small firms is critical to the ecosystem of the legal profession. We will also see whether increased telecommuting in this time lends itself to an increased awareness of resources from lawyers in large firms who reported to either not know or not be interested in everything from training to software to e-discovery. Only time will tell!

Stephen Embry

Attorney

Stephen Embry is an attorney focusing his practice on mass tort and class action litigation and is the publisher of TechLaw Crossroads, a blog devoted to law, innovation, and technology.

Thank you to H5 for sponsoring our Litigation & TAR report!