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Are Litigation Support Systems Providing Any Support?

January 1, 2000







Richard Honey is a chartered quantity surveyor and litigation support specialist at Cyril Sweett in London. He is a member of the Technology and Construction Solicitors Association IT Sub-Committee (rhoney@cyrilsweett.co.uk). This article reflects his research into litigation support system use.



In his Access to Justice Inquiry, Lord Woolf identified the management of documentary evidence and the process of discovery1 and inspection of documents as one of the major barriers to access to justice. He recommended the use of litigation support systems and protocols for computer-aided disclosure in order to improve the situation.


Now, three years after Lord Woolf’s final report, and with the Civil Procedure Rules in place, this research set out to investigate how and to what extent litigation support systems were being used in practice, and how this would change in the future. In particular it looked at the benefits of and barriers to the use of litigation support technology, its application to electronic disclosure and inspection, and the use of the Technology and Construction Solicitors Association (TeCSA) IT Protocol.


The basis of the research was a questionnaire survey, sent to 280 solicitors from 96 firms in London and regional centres who specialised in construction law – an area which gives rise to much complex, technical and document-heavy litigation. The questionnaire was sent out in July 1999. It received 90 responses – a response rate of 32%.


Pressure to Use IT


The survey began by asking the solicitors from which sources they felt that they were experiencing pressure to use IT. 76% felt that they were under pressure from clients, reinforcing the conclusion found in other surveys that clients are the most important factor in achieving change within the legal profession,2 and that clients represent the ‘ultimate pressure’3 for the wider use of IT. Pressure from competitors was the second most highly rated source, noted by 44% of respondents, who are it seems ‘motivated by a desire to keep pace with opposing parties who have indicated they are using IT (or where it is suspected that they are)’.4 Other sources of pressure were the courts and counsel at 37% and 24% respectively. Despite this evidence however there are still some 29% who do not feel they are under any pressure at all to use IT more.


When asked if the Woolf reforms would add to the use of IT in case preparation, the majority (79%) felt that it would, with only 17% believing that there would be no change. The questionnaire also asked if solicitors felt that IT was being used to achieve Lord Woolf’s aims of greater access to justice. 73% felt that IT was being applied as a tool to aid justice, rather than a weapon to further their clients’ cause to the detriment of justice.


Electronic Exchange of Information


On exchange of information the survey found that 92% of respondents had submitted documents to an opposing solicitor in electronic as well as hard copy form, 57% doing so occasionally and 43% doing so often. The figures for electronic exchange by counsel were similar: 96% of the solicitors believed that counsel submitted or exchanged documents electronically at some time – 53% doing so occasionally, and 41% doing so often. There was however little correlation between the two professions, indicating that ‘wired’ solicitors do not necessarily use ‘wired’ counsel. Statistics on the electronic submission of documents to the court were significantly lower, with some 30% stating that they never did so. However, a significant middle band, some 61% of respondents, do submit electronic documents to the court occasionally.


Use of Litigation Support






Figure 1

The survey asked some detailed questions about the use of litigation support systems and their perceived benefits. In response to the question, ‘in what proportion of disputes do you use a litigation support database?’, the questionnaire found that 24% did not generally use litigation support systems at all. The percentage ranges are best illustrated as a graph (Figure 1).


The single largest category of use was in the 1 to 10% range, covering 30% of respondents, followed by the 11 to 20% range, covering 18% of respondents. This leads to the conclusion that 80% of respondents used litigation support systems in 30% or less of their cases, and 54% of respondents use them in less than 10% of their cases. The average proportion across the range was a little over 19%; if a few high volume users were discounted to produce less skewed results, the average fell to 12.9% (against a median for the whole sample of 10%).


The dispute resolution processes where litigation support systems are applied in the main were litigation (by 71% of respondents) and arbitration (by 58%). The use in ADR, some 12%, was small but not negligible. This suggests that the technology is not only applicable to structured decision-based dispute resolution fora.


Looking forward, the survey asked solicitors in how many years they expected the use of litigation support technology to be common-place. Although there were some minorities who felt that the systems were commonplace now or imminently, or that it would take 10 years, or would perhaps never happen, the majority of 75% felt that litigation support systems would be commonplace within five years, and 42% said within three years. This accords with the widely-held industry and expert assessments of three years.


Benefits, Barriers and Drivers


The benefits of litigation support systems were questioned, with the result that efficiency was identified as the major benefit, being cited by 83% of the respondents. Effectiveness was the second most commonly perceived benefit, cited by over two-thirds of the respondents. On a similar level to each other were mobility, saving cost and saving space with 49%, 43% and 42% respectively. When asked to rank the most important benefit the response was subtly different. Almost half of the respondents (48%) felt that efficiency was the most important benefit, followed by 27% of respondents who felt that it was effectiveness. The physical benefits (mobility and saving space) scored less highly than might have been expected.


Unsurprisingly, aspects of cost were identified as the most significant barrier to the wider use of litigation support systems. The key reason, identified by two-thirds of the respondents, was that they felt that their cases were too small to justify the use of a database. This was closely followed by the high cost of systems and the front-loading effect of implementing a system, on 58% and 55% respectively. Aside from cost, lack of expertise was considered a barrier by 22% of respondents. When ranked by importance, it was found that overall cost is the most important, on 45% compared to 21% and 19% for the size of the case and front-loading respectively.






Figure 2

The factors which will act to drive the wider use, and to overcome the barriers, were improvements in technology and the falling cost of systems – at 74% and 72%. The possibility of the benefits outweighing the barriers without other improvements came in the second rank of factors: efficiency, time savings and effectiveness at 68%, 53% and 46% respectively. The influence of judges was also considered to be an important driver by over half of the respondents (54%), but this must be set against pressure from clients at a relatively low 36%. The widespread use of protocols fared relatively badly, being cited as an influencing factor by only a third of respondents. The graph shows how these factors were ranked first and second most important (Figure 2).


Database Creation


The solicitors surveyed used external litigation support bureaux and in-house departments in equal proportions to develop their systems. There were however some significant differences in the use of litigation support in correlation to how they were developed. The average percentage use of litigation support for those with in-house litigation support departments is 27%, whilst for those who use an external specialist firm it is 16%. Solicitors with an in-house capability expect the use of litigation support systems to become commonplace earlier than those who currently use an external specialist: 58% compared to 36% believe that it will be within three years.







Electronic Disclosure and Inspection


The survey found that only 7% and 8% respectively of respondents always or often undertook disclosure electronically, where a database of documents existed. This may seem small but is a significant proportion. The largest proportion, some 42%, do disclose electronically occasionally. However, over a third of respondents do not make the database available where it exists. Given that on average it seems that litigation support databases are developed in some 13% of actions, one might therefore expect electronic disclosure to be made in only 2% or 3% of all cases. Those solicitors with an in-house department are marginally more likely to undertake electronic disclosure than those without: 72% do so sometimes compared to 58%.


Where electronic inspection was given (a sample of 30 respondents), 68% said that they make a charge. By far the largest group charge the cost of copying documents only (some 55%). This is in line with the Grupo Torras5 ruling. However, some 17% stated that they charged half of the database development costs, which is in excess of both Grupo Torras and the TeCSA IT Protocol recommendation of no more than a third. Not surprisingly, a significant number responded that it depended on the particular case.


The questionnaire then asked if solicitors would be prepared to co-operate in the creation of a database in a contentious matter, scanning common documents and sharing the cost – 97% said that they would, with 95% believing that post-Woolf the courts would encourage such co-operation.


TeCSA IT Protocol


TeCSA developed their IT protocol to assist with co-operation on litigation support and computer-aided disclosure, and was praised for it by Lord Woolf. The majority of the respondents were aware of the protocol and 95% felt that it was useful. Most believed that it was neither too wide nor too prescriptive, although there was some lack of confidence that it was up-to-date with technology.


The IT Protocol has been used in a ‘live’ dispute by 36% of respondents, three-quarters of whom believed that it was successful in ensuring co-operation. Even if these respondents were the only ones from the whole group of 280 solicitors surveyed to use the protocol, it still leads to a useage level of at least 10%. Generally it was a solicitor, rather than the judge or client, who recommended the use of the protocol.


Data Exchange Agreements


Data exchange agreements have been suggested as the next stage on from a protocol – going into more depth and being of a binding nature.6 The view of many practitioners is that binding ‘agreement between the parties is fundamental if all parties are successfully to advance the IT procedures’ in a case.7 Current use of such agreements is however low, 93% said that they do not normally enter into them. Encouragingly, 78% said that they would be prepared to use data exchange agreements in the future. The development of a standard form data exchange agreement could therefore be beneficial.


Conclusion


The questionnaire recorded the use of litigation support systems within a particular specialist area of legal practice. Although further work to compare construction to other areas, and to provide trends over time, is needed, the survey allows some conclusions to be drawn.


Litigation support systems are used in at least 10% of construction disputes, and it is expected that as a result of increased pressure from clients and the Woolf reforms use will increase so that systems become commonplace in three years. Cost and technology are the biggest barriers to wider use at the moment, illustrating that it is the suppliers who can have the greatest effect on the market, if the products and their value improves.


In the meantime, given that aspects of cost are the greatest barrier to use, there is a need for action to compare the benefits to the costs and develop a business case for the use of litigation support technology. SCL’s Litigation Support Interest Group named the development of a business case as one of its aims, before it died in 1997 through a lack of interest. SCL was also nominated in the Woolf Report as the body to develop the TeCSA IT protocol into a wider protocol for the whole civil justice system. Again the objective has not been achieved through an apparent lack of interest.


Beyond the SCL, the Lord Chancellor’s Department civil.justice consultation paper voiced support for litigation support, but did not appear to move the subject on beyond Woolf. The consultation found that there was widespread support for the Government either to set standards and protocols or seek to achieve consensus. It is to be hoped that the LCD grasps the nettle and sets out a clear strategy for the use of litigation support systems by lawyers and the judiciary following the consultation.


Overall then, it seems that the uptake of litigation support is relatively high and set to grow despite a lack of action from bodies such as SCL and the LCD, and the observed gap between the needs of the lawyer and the products offered by supply-side.


Endnotes


1. Now re-styled disclosure under the Civil Procedure Rules.


2. Wall, David (1998) Information Technology and the Shaping of Legal Practice in the UK at the 13th BILETA Conference, March 1998, Dublin.


3. Kelly, Maureen (1998) Getting Support from Litigation Support at the 13th BILETA Conference, March 1998, Dublin.


4. Susskind, Richard (1999) ‘‘IT in the Civil Justice System of England and Wales’’ Computers & Law Vol 10(1) April/May 1999 at p11; see also Susskind, Richard (1998) The Future of Law (OUP) at p168.


5. Grupo Torras SA v Al Sabah [1998] Masons CLR Rep 90, (1997) The Times, 13 October.


6. Acland, Lucinda (1999) ‘‘Data Exchange Agreements in Litigation – the Impact of the Woolf Reforms’’ Computers & Law Vol 10(1) April/May 1999.


7. Edwards, Anthony (1996) ‘‘Litigation support systems’’ Construction Law Vol 7(1) April 1996 at p24.


1. Now re-styled disclosure under the Civil Procedure Rules.


2. Wall, David (1998) Information Technology and the Shaping of Legal Practice in the UK at the 13th BILETA Conference, March 1998, Dublin.


3. Kelly, Maureen (1998) Getting Support from Litigation Support at the 13th BILETA Conference, March 1998, Dublin.


4. Susskind, Richard (1999) ‘‘IT in the Civil Justice System of England and Wales’’ Computers & Law Vol 10(1) April/May 1999 at p11; see also Susskind, Richard (1998) The Future of Law (OUP) at p168.


5. Grupo Torras SA v Al Sabah [1998] Masons CLR Rep 90, (1997) The Times, 13 October.


6. Acland, Lucinda (1999) ‘‘Data Exchange Agreements in Litigation – the Impact of the Woolf Reforms’’ Computers & Law Vol 10(1) April/May 1999.


7. Edwards, Anthony (1996) ‘‘Litigation support systems’’ Construction Law Vol 7(1) April 1996 at p24.