Jason Alvares and Alexandra Kirby take stock of how their use of technology to resolve disputes and litigation has changed in the wake of the pandemic.
Over the last few years, innovations in legal technology have played an increasing role in contentious matters. This has been chiefly seen in the collection and processing of clients’ data, through the deployment of forensic and predictive coding technologies during disclosure and investigative stages, and through the development of digitalised trial presentation platforms. Despite this trend, there remained a broad reluctance to move away from the conventional conduct of trials and hearings. The current crisis has quashed this resistance and demanded that parties, clients, Courts and regulators now adapt and find virtual solutions. This has resulted, in some cases, in a complete digital transformation of hearings.
So what are the consequences of this transformation?
For interlocutory, small regulatory hearings and straightforward party-to-party trials, there is little doubt that the transition to remote hearings has and will continue to have, costs savings. Simple features are available within established technologies that can facilitate the smooth conduct of a hearing. For example, programmes such as Adobe professional and Nuance Power PDF Advance allow for the consolidation, creation and pagination of electronic trial bundles. These programmes can also apply hyperlinks to indexes to aid in the management and navigation of multiple volumes of documents. Functions within readily available video conferencing and instant messaging software can be used in various ways – allowing parties to establish open lines of communication between the client and legal teams throughout a hearing. These and other simple solutions serve to reduce time spent by a legal team in preparing and attending hearings, and in urgently reacting to issues from the Bench, a regulator or the other side, as and when they might arise. Practically, they allow specific exhibits and text within a given document to be located with ease. There is also an immediate and obvious reduction in associated hard costs, such as copying and printing of hearing bundles. All of these costs have historically been simply “factored in” and accepted as a part of the price of litigation.
For large and complex trials, the co-ordination and conduct of often multi-party and potentially multi-jurisdictional virtual hearings presents complications. Given that parties are in separate locations, the success of any hearing is reliant upon parties’ and witnesses’ own technologies and their understanding of the same. In longer hearings, time is likely to be wasted on matters not previously necessary for the Court to contemplate, such as latency, connection and equipment issues. During one recent High Court hearing in which we were acting, the Judge’s own internet connection dropped out repeatedly over 3 days, during the course of Counsels’ submissions resulting in the hearing being unexpectedly adjourned each time. In addition, virtual hearings will doubtless impact upon the presentation of a complex case. Indeed, advocates will likely have less opportunity to respond directly to issues as they arise, witnesses appearing over video link will have more time to consider responses during cross-examination, and parties’ written submissions and materials will be subject to greater reliance and emphasis .
From a technology perspective, the move to virtual hearings offers organised parties willing to invest early in hardware and digital support the opportunity to mitigate some of these issues and to achieve even greater time and costs savings. Planning for and using eDiscovery software (such as Nuix Discover and BrainSpace) in tandem with developing digitalised trial presentation platforms (such as Opus 2 and Epiq’s TMX) from the outset of a case enables fully digitalised case management. This can include processing raw data, support in drafting witness statements, expert reports and exhibits, and the sharing of electronic bundles for trial preparation and presentation. We have extensively used tool such as EDiscoveryTools and Nuix Discover to process clients’ data from an early intervention, investigatory stage (in both potential litigious and regulatory matters) and subsequently (and seamlessly) moved to Opus 2 for the creation of witness statements and in preparation for hearing. Of course, using different applications across the whole workflow does come with its challenges. One which stands out is ensuring that you, your client and counsel have the right infrastructure, hardware, equipment and security in place from the outset to guarantee compatibility, including reaping the benefits of all features. Naturally, this process ensures an early, increased familiarity with a party’s own documents (both in support and adverse) and achieves real savings in the production of written materials. The ability to distil information, together with the increased focus on parties’ written cases at virtual hearings, is also likely to enable a better understanding and articulation of a party’s case, offering the opportunity for early settlement or the use of other ADR processes. Investment in other support services, such as real time transcription, means that commonplace technology issues, such as delays and/or frozen images, will cause minimal disruption to the conduct of a hearing.
This is just the beginning. The increase in remote hearings has caused significant investment into the legal technology sector, which, in turn, will result in further feature-rich enhancements to the products mentioned above, alongside innovation, and the development of new custom-built, bespoke applications and tools. We would expect to see a rise in cloud based end-to-end technologies which will incorporate; data collection by connecting to client servers directly, automating the process of data processing as well as the inclusion of custom-built workflows for a review, redaction and production of documents. Ultimately, we anticipate that this will result in the trial preparation and presentation all taking place within the same application. In addition to this we envisage hearing technologies will start to gradually incorporate video conferencing and advance communication features into this all-in- one application, allowing for better remote collaboration during the trial.
The overriding objective of the Court is to enable matters to be dealt with justly and at proportionate cost. Remote hearings and associated technology advancements (for both large and small matters) offer the Court the potential to meet this objective. It is clear that remote hearings will remain a feature of the litigious and regulatory landscape, even once restrictions have been lifted. As such, the need for continued and increased investment in the development of all-encompassing platforms capable of facilitating suitable trial presentation and video conferencing is only increasing.
From the client’s perspective, it is clear that the early intervention of technology in the conduct of a case (from the receipt and processing of data, to the preparation of bundles for a remote trial) will take on increased significance and present considerable opportunities for significant savings.