Use of Litigation Support

April 30, 1999

This article is based upon research intolitigation support, which she undertook at six London solicitor’s firms for her Masters dissertation.

It is now nearly a decade since the first articles on litigation support(used here to refer to document-indexing using a database, full-text retrievaland/or document image processing) appeared in the pages of this magazine, and UKlawyers first began to consider the possibilities offered by informationtechnology for improving litigation. During that decade, litigation support hadwon influential advocates (notably Lord Woolf) and its potentially impressiveadvantages have occupied many column inches.

The most frequently-cited advantage is improved efficiency. Once documentsare loaded into a litigation support system, the time-consuming tasks of findingand organising documents can be accomplished much more quickly than by manualmeans, saving valuable fee-earner time. Paralegals can be used to codedocuments, leading to a more efficient division of labour. Litigation supportmay also improve effectiveness: a system can act as a central repository of theknowledge about a case that is built up by the lawyer(s) working on it overtime, reducing the likelihood of lost insights and/or duplication of work.

The list does not stop there. The use of imaging in particular allows formobility with documents without a team of porters, and can facilitatehome-working. It can also save office space, which could be particularlysignificant for solicitors, for whom the cost of premises generally constitutesa more significant proportion of overhead costs than in most other industries.

All this should be music to the ears of a beleaguered profession. But thedepressing fact is that, ten years after the first flurry of interest,litigation support has yet to take off in a big way. No countrywide figuresexist, but the evidence which is available suggests that regular usage oflitigation support is currently confined almost exclusively to the largest ofthe City giants. A 1997 study commissioned by the Law Society specifically toconsider the IT needs of litigators found that, for tasks other than producingdocuments, manual procedures were still the order of the day.

In seeking explanations for the tortoise-like progress of litigation support,a kneejerk reaction might be to cite the innate conservatism of the profession,or to point out that many smaller practices lack funds for investment and accessto technical expertise. Both of these factors have no doubt played a part in theslow uptake of litigation support, the latter demonstrably so, but they do notprovide a complete explanation. Despite our legendary resistance to change,information technology has moved out of the back-office and onto the lawyers’desks during the 1990s; not only in the largest practices, but in mostmedium-sized and many small firms too. Litigation support, the evidencesuggests, is lagging behind other applications of IT in legal practice.

Investigating Use

In an attempt to shed some light on the question of why this should be,interviews were conducted last summer at six London firms: three large (over 120partners) and three medium-sized (between 10 and 50 partners). Lawyers, ITpersonnel and litigation support managers were asked about their experiences ofusing litigation support and their views on its advantages and disadvantages.

All six firms use information technology quite extensively, but in the use oflitigation support a division emerged. The large firms each have an internalparalegal department providing litigation support services: at the time of theinterviews, two used litigation support relatively extensively, and the thirdwas committed to extensive use once a newly-purchased package was implemented.The three medium-sized firms were making much more limited use of litigationsupport, if any (two had each employed litigation support on one very largecase, and the third did not use it at all).

When litigation support arrived on the scene, it was predicted that externalpressures, from the courts and from clients, would ensure its adoption by lawfirms. Despite this, all interviewees reported that specific requests fromclients for the use of litigation support are very much the exception ratherthan the norm, and that client documents still almost invariably arrive in paperrather than electronic form. The unanimous opinion was that in practice there isno consistent approach to litigation support from the courts at present, withattitudes varying from court to court and from judge to judge.

For the firms interviewed at least, it appears that external pressures to uselitigation support have so far failed to emerge. However, given its potentialadvantages in terms of efficiency and effectiveness, this alone does not explainits comparatively slow diffusion.

Cynics have suggested that, as long as lawyers charge by the hour, they willnot embrace a technology that may reduce time spent on a case. This rather harshopinion was unanimously refuted by those interviewed: in today’s competitiveenvironment, the view was, efficiency and quality of service are key. Theadvantages of litigation support in terms of efficiency and effectiveness shouldhelp firms to get an edge on the competition, or at least to maintain theircompetitive positions. Are those advantages accepted as achievable by theprofession?

The good news for Lord Woolf and everyone else with an interest is that allinterviewees agreed that the use of litigation support could lead to an improvedquality of service, and a substantial majority agreed that litigation supportcould reduce the costs of litigation. The potential for increased mobility wasalso unanimously agreed to be a real advantage. However, on the question of thetype of cases to which litigation support could profitably be applied, opinionswere divided.

All interviewees at the medium-sized firms subscribed to the view that usinglitigation support is only appropriate when dealing with a `mega-case’,involving massive sums of money and (at the least) tens of thousand of pages ofdocuments. This view seems to go a long way towards explaining why litigationsupport has failed to spread to any great extent outside the largest firms, assuch cases are not the norm. Indeed, if correct, it would more or less justifylitigation support’s confinement to very large firms, and a few niche practices,which deal regularly with such cases.

Should Litigation Support be Widely Used?

Clearly, the problems of document management are most acute in cases wherediscovery involves truckloads of documents, and so such cases may reap the mostdramatic benefits from litigation support. Equally, on a case where the relevantdocuments run to, say, 50 pages, document management is the least of thelawyer’s problems. But what about the middle ground, cases involving, say,upwards of 1,000 pages? Such cases are routinely encountered by medium-sizedfirms, and many small practices too; it has been persuasively argued (in thepages of this magazine and elsewhere) that such cases may benefit from thethoughtful application of litigation support. The interviewees at the threelarge firms agreed. While none of those firms have adopted a blanket approach tolitigation support to date, there was a unanimous view that it could be usedbeneficially on moderately sized cases too.

Consider a case where 2,000 pages are found to be discoverable. To code allthose documents objectively and subjectively, image them and apply OCR (in orderto allow for full-text retrieval) would no doubt be overkill (indeed, to takesuch an approach would probably be overkill on any case, no matter how large).However, it could well be useful to code the documents objectivelypre-discovery. A list of of documents has to be prepared anyway, and enteringobjective coding information into a database should not require significantlymore effort than producing a word processed list: the substance of the list canthen be generated from the objective coding information.

If the case settles immediately after lists are exchanged, the client willnot be out of pocket. Information held in a database is easier to manipulate andsearch than information in a word processed list, so if the case does not settleimmediately, time may be saved when it becomes necessary, say, to isolate allcorrespondence from Mrs A to Mr B. Although with 2,000 pages this would not be aweek-long job in any case, even small time savings add up.

Later on, it might be appropriate to add some subjective comments to thedatabase, if for example a witness throws new light on important documents whilebeing proofed. It might also be desirable to add linked images of some documentsto the database, if they needed to be worked on extensively, or the lawyersneeded to be mobile with them. Or it might be that the statement of claim wasamended to include new allegations, involving supplemental lists and turning thecase into a 5,000-page case. Keeping track of the documents would become abigger issue, but the database of the first list is there to build on.

Limits on Use and the Future

This fictitious case is intended to give a picture of how litigation supportcan assist in medium-sized cases, as well as enormous cases, and brings us tothe question of why those at the medium-sized firms interviewed had in practicetaken a different view.

This is probably partially explicable by the existence of more extensivein-house facilities at the large firms: the need to rely on the services ofexternal bureaux undoubtedly is a disincentive when dealing with small cases,where the rewards from litigation support are likely to be more modest. However,during the interviews it became apparent that perhaps the most significantfactor was that those at the medium-sized firms understood litigation support ina rather different way to the more experienced users at the large firms. Insteadof a flexible, incremental approach such as the one outlined above, they tendedto envisage an upfront, all-or-nothing exercise. Such exercises are costly and,although they may save time later on, they may also `front-load’ the costsinvolved. This is problematic, given that the vast majority of cases will settleat some unknown and unpredictable point before trial, and in turn explains theview that litigation support is only really applicable to large-volume,large-value cases where the difficulties of managing the documents without itare most acute.

The evidence from the six firms suggests that a failure to appreciate thepotential flexibility of litigation support has been an important factor in itscomparatively slow uptake to date. Litigation support enthusiasts shouldprobably take some responsibility for this failure: because gigantic cases arelikely to show the most dramatic results from litigation support, most articleson the subject have concentrated on those cases and more everyday situationshave often been overlooked. If litigation support is to gain widespreadacceptance, those with an interest would do well to work on changing this.

So much for the last ten years. What of the future? On an encouraging note,all those interviewed believed that usage of litigation support was likely toincrease in the future. In particular they believed that the courts would becomemore proactive in encouraging its use and that client documents held inelectronic form would become increasingly important in the conduct oflitigation, although these changes were expected to happen only slowly, littleby little. If the interviewees are right, the progress of litigation support maycontinue to resemble that of the tortoise rather than the hare – but thetortoise won in the end.