I am often asked, by members of the Society, about the various public sectorprojects with which I have been involved, especially those that relate to thecivil justice system in England and Wales. What have been the most significantinitiatives? How do they relate to one another? And how do they bear on the useof IT by practitioners?
To answer these and other questions, I have taken the opportunity to adaptand personalise a report written for another purpose. 1My aim here is to seek to provide an overview of past, current and future usesof information technology in the civil justice system of England and Wales. Istart with a brief historical analysis that identifies some key events in thedevelopment of IT-based civil litigation: the founding of the Society forComputers and Law in 1973; the establishment of the ITAC committee in 1985; andthe innovations in the Official Referees Courts in the early 1990s. I suggestthereafter that in the decade from 1994 the major influence in the developmentof IT for the civil courts will be Lord Woolf’s Access to Justice Inquiryand its various recommendations on IT (summarised in this article). I then showthat the Bowman Report on reform of the Civil Division of the Court of Appealencourages and develops similar applications of IT. Thereafter, I seek todescribe and evaluate English lawyers’ exploitation of litigation supporttechnology. Finally, I summarise the consultation document known as civil.justice– the government’s initiative to develop a 5 to 15 year IT strategy for thecivil justice system in England and Wales.2
A Brief History
In England and Wales, there has been strong interest in the use of IT insupport of civil litigation at least since our Society was founded (on 11December 1973). Although a handful of pioneers had worked in the field prior tothat date, it was only thereafter, with a formal body in place, that it waspossible for English lawyers, judges and officials to work together in asystematic and sustained way in assessing the actual and likely impact ofcourtroom and litigation support technologies.
After a decade of experimentation and modest progress, the next milestone wasthe establishment in 1985 by Lord Mackay (then the Lord Chancellor) of ITAC, theInformation Technology and Courts Committee. ITAC was inspired and then chairedfor the first 11 years or so by our immediate past-president, Sir Brian Neill.The chair then passed to the current holder, Lord Saville (who also chairs theJudicial Technology Group,which focuses on the short and medium term IT needs ofEnglish judges). Strong leadership from top judges is and always has beencrucial for securing support for IT in the justice system.
Still very active today, the purpose of ITAC has always been to provide aforum at which a very wide range of participants in the justice system (civiland criminal) could come together and exchange news about their respectiveinvestments in IT and their plans for the future. I joined ITAC in 1990, while Iwas chairman of SCL and have represented the Society on the committee sincethen. Although ITAC has never had executive powers, it remains, for me and manyothers, an invaluable body, whose very existence encourages collaboration andcompatibility across the civil justice system. Around the ITAC table, solicitorsare represented by The Law Society and barristers by the Bar Council, while theyare joined by judges representing all levels of courts and by senior officialsfrom numerous government bodies, including the Lord Chancellor’s Department, theCourt Service and the Legal Aid Board.
In the late 1980s and early 1990s, one part of the civil justice system thatalways came to ITAC with exciting news of innovation was the Official RefereesCourts (now The Technology and Construction Court). It was in this court thatmuch of the speculation about civil litigation technology became reality. Theearly success in these courts is a case study worth recounting. In 1991, TheOfficial Referees Solicitors’ Association (ORSA) set up an IT sub-committee toestablish some standards for the use of litigation support systems (documentmanagement systems) in the courts of the Official Referees (those judges inEngland who specialise in technical disputes, largely in the construction,engineering and IT industries). While these courts had frequently been facinghuge document loads which were ideal for litigation support, law firms had beentending to argue with one another over the selection of systems, with eachboasting unrivalled merit for their own preferred packages. The sub-committee,with representatives from a number of major litigation practices, sought to cutthrough these debates and wrote the ORSA Protocol which laid out standardformats for various aspects of litigation support.
I was one of the main authors of the Protocol and its publication was duringmy time as chairman of SCL. The Society decided to support the initiative andindeed funded the printing and wide-spread distribution of the document.Although it was in no sense binding, a number of the judges strongly encouragedits usage, most solicitors accepted its recommendations and it motivated thosewho were previously unaware of litigation support to take it far more seriously.3
Also in the Official Referees Courts, just after the ORSA Protocol waspublished, an important experiment was conducted in relation to what has becomeone of the most successful uses of IT in the English courts computer-assistedtranscription (CAT). Again under the auspices of SCL, a short study wascommissioned, which sought to explore the impact of this technology. As is nowwidely known, through CAT, the words spoken in the courtroom as captured by thekeystrokes of stenographers are converted into text that appears almostinstantaneously on the judge’s monitor. Additionally, there is a facility toannotate text as it appears. The original study suggested 4that the use of this technology could reduce the length of hearings – a findingsupported by later projects and by the widespread anecdotal evidence of judgeswho have used such systems.
Elsewhere in the civil justice system at that same time, there was also someacceptance and exploitation of the same techniques and technologies that hadbeen used in the Official Referees Courts. Some larger law firms andtechnologically enthused barristers began to work with litigation supporttechnologies (inspired often by their counterparts in the USA), while judicialtechnology received a boost in 1992 with the launch of the JUDITH (Judicial ITHelp) pilot project – the Lord Chancellor’s Department provided the funding forthe provision of computers and training to 25 judges. 5The JUDITH experience valuably laid the foundations for the gradual adoption ofIT by the English Judiciary – there are just over 1,000 judges in England, ofwhom about half were IT users as at the end of 1998.
Nonetheless, although there were some law firms, barristers and judgesembracing IT in the early 1990s, the general uptake of the technology across thecivil justice system was neither rapid nor enthusiastic. Most acknowledged(often with some reluctance) that it was in some sense inevitable that IT mightat some time come to pervade the lives of everyone involved with civillitigation. No-one knew that that time would come as soon as 1994.
Lord Woolf’s Reforms and IT
| For current purposes, it is vital to know that the introduction of new and improved information technologies are central to Lord Woolf’s main recommendations. IT is a key part of the civil reform process. |
In March 1994, the Lord Chancellor, Lord Mackay, appointed Lord Woolf (atthat time a Lord of Appeal in Ordinary in the House of Lords; now the Master ofthe Rolls) to review the rules and procedures of the civil courts in England andWales.
I was delighted to be appointed as Lord Woolf’s IT Adviser in early 1995. Itseemed to me then, as now, that the very appointment of someone who specialisedin IT in the law was of itself significant. I did not know of any other priorlaw reform initiative in the UK that had taken IT particularly seriously.
The aims of Lord Woolf’s review were, in summary: to improve access tojustice; to reduce the cost of litigation; and to reduce the complexity of therules and terminology. Lord Woolf’s review became known as the Access to JusticeInquiry. In June 1995, he produced an Interim Report. 6In July 1996, he published his Final Report 7together with a set of draft rules, proposing a unified body of rules to replacethe Rules of Supreme Court and County Court Rules.
Lord Woolf proposed a radically new landscape for civil litigation. In thenew world he advocated, he suggested civil litigation should be:
- avoided wherever possible
- less adversarial and more co-operative
- less complex . more certain with shorter time scales
- more affordable, predictable and proportionate.
He recommended that:
- parties should be placed on more a equal footing (financially)
- there should be a clearer division of judicial and administrative responsibilities
- the courts and judges should be more litigant-oriented
- there should be more effective deployment of judges
- the civil justice system should be more responsive to litigants’ needs.
When the Labour Party came to power in England in May 1997, the new LordChancellor, Lord Irvine, invited Sir Peter Middleton to review Lord Woolf’srecommendation alongside other proposals for the reform of the Legal Aid system.8 The new government’s general approach is nowcaptured in a White Paper, published in December 1998, entitled `ModernisingJustice’. 9 In summary, the first phase of the civiljustice reforms, as proposed by Lord Woolf, is to begin on 26 April 1999 andthese will include the coming into force of the new Civil Procedure Rules,signed by the Lord Chancellor on 10 December 1998.
And so, the most fundamental reforms to the English civil justice system forcenturies, as proposed by Lord Woolf, are to be taken ahead. For currentpurposes, it is vital to know that the introduction of new and improvedinformation technologies are central to Lord Woolf’s main recommendations. IT isa key part of the civil reform process.
Taking his interim and final reports together, Lord Woolf made a wide rangeof recommendations in relation to IT. 10 Mostfundamentally, Lord Woolf proposed the introduction and use of what are oftenknown as `case management systems’. Before detailing the proposals themselves,it should be said that there has been some considerable confusion over the veryterm `case management system’. In an attempt to clarify the issue, it has beenfound helpful in England to recognise that there are at least five categories ofsystem, each of which can meaningfully (but unhelpfully) be called casemanagement systems. Each, in fact, is best regarded as a sub-system of the nextgeneration of court systems:
- management information systems – to help (politicians, officials, judges and others) monitor the throughput and performance of our courts (consistent with the recommendations of Sir Peter Middleton)
- case administration systems – to support and automate the formidable back-office, administrative work of court staff
- judicial case management – including case tracking, case planning, telephone and video conferencing, and document management, intended for direct use by judges
- judicial case management support systems – being the systems used by court staff in support of judges who are involved with case management
- non-judicial case management – to help court staff progress those many cases which are not disposed of judicially.
Absolutely fundamental to the Woolf reforms are two quite differentcategories of case management system. First, for the `fast-track’ (very broadly,for claims up to £15,000 in value, other than small claims), it will be vitalthat the Court Service has efficient, reliable and effective ways of monitoringand administering all those cases that are following fixed timetables. In termsof the classification above, this will require first-rate case administrationsystems.
Secondly, it is central to Lord Woolf’s new landscape that judges are moreproactive in the management and progression of cases on the `multi-track’ (alsobroadly, cases worth more than £15,000). In this respect, a range oftechnologies are envisaged for direct use by judges in support of their newcasemanagement responsibilities, largely on the multi-track. In the languagedescribed above, what is needed here are judicial case management systems. Thisis a rather radical new departure and worthy of special attention here.
Lord Woolf recommended four broad categories of judicial case managementsystem:
- case tracking systems – producing daily reminders, progress reports, lists of outstanding tasks and notices of who has responsibilities for further actions, thus supporting judges in supervising, monitoring and controlling their cases from start to finish;
- case planning systems – simple, PC- based, project management software to enable judges to generate their own plans/charts for cases, depicting time scales, key events and activities;
- telephone and video conferencing – as important tools for judges in maintaining the progress of cases and keeping in direct contact with parties where formal meetings would be impractical; and
- document retrieval systems – to allow judges to gain access to documents relating to the individual cases on which they are working: including full case histories, pleadings, affidavits, orders and document bundles for example; and to be able to retrieve these, either as images or as searchable text, from some central location.
More generally, he stressed that there must also be coherent programmes fortraining the judges in IT and adequate technical support in place as well, forhe recognised that new judicial users would inevitably be less comfortable withthe technologies than the pioneers.
These recommendations on judicial case management technology raise afascinating range of further issues.
In the first instance, as stressed above, it must always be borne in mindthat there are these different kinds of interrelated case managementsystems, such that judicial case management systems are not separate systems. Anemerging objective is to move towards unified court information systems acrossthe country that support all five types of case management application notedabove. Case management systems for judges will not, therefore, be separate anddistinct applications. Instead, they will draw on much of the same informationthat is needed for judicial case management support systems and for non-judicialcase management systems. It is perhaps best to regard the English courtinformation system of the future as one single system, with a range of differentusers – and judges will be one category of user with their own specificrequirements.
Early thinking suggests that case tracking will be the priority for judges inthe short term. However, it is vital to bear in mind that we are currently atthe beginning of an evolutionary path which will lead in due course to aninevitably highly automated court system, under which the administration ofcases will flow from start to finish in a largely automated environment, withhuman (largely judicial) intervention only for judicial decision-making andmanagement decision-making. Judges involved with analysing requirements aretherefore being encouraged to regard their current work as being the firstbuilding blocks towards such fully integrated case flow management systems.
Consistent with the spirit of the reforms which seek to simplify, unify andrationalise the civil justice system, work on systems today is seeking toreflect the objective of developing court information systems which, insofar aspossible, are common across all civil courts in England. To this end, at thisstage, the underlying database technology should be the same across all courtsand the `front-end’ for all judicial users should be similar in design andcontent. Inevitably, different courts and specialist jurisdictions will havesome different requirements but there should be a strong common element acrossall modules of the unified system.
I should say that the emphasis of this part of the article is on themulti-track. While IT is absolutely crucial on the fast- track, the caseadministration technology which will be so vital there must be able to operatewithout regular consultation or use by judges themselves. Failure to meetdeadlines on the fast-track must automatically trigger appropriate action. Courtstaff will enter data regularly and the systems should be designed to monitorprogress and initiate activity. In contrast, to manage cases effectively on themulti- track, judges will need to have direct access to systems themselves (orto the output of systems as used by the court staff ).
Given that not all judges will be willing or able to use any new systems,there seems to be general agreement that there must be parallel systems (IT andpaperbased systems) for judicial case management for many years to come, toaccommodate non-users of technology. It is a moot question of policy whether atarget date should set for all (or at least the overwhelming majority of) judgesto be direct users of judicial case management systems. What is especiallyencouraging, in any event, is that the current government seems willing tosupply equipment, applications and training to any judge who wants the newtechnology.
And yet, it will not all be down to judges. The benefits of a managed systemwill not be realised simply by grafting judicial case management on top of thecurrent organisational infrastructure (court staff with their existing roles andresponsibilities). Given that some judges will use the systems directly whileothers will not and that some will be more active case managers than others, itis clear that court staff will play a crucial and new role in working alongsidejudges who are managing the flow of their cases.
Much further thinking needs to be done here but there are strong arguments infavour or re-orientating the work of court staff and adopting a `team-based’approach.
Central to the operation of the civil justice system under the reforms willbe the creation of electronic files, which can flow quickly and cheaply throughthe system. Once set up in the first instance, perhaps by court staff, such afile should contain and record information about each particular case.Eventually, all the documents relating to each case will also be attached to thefile. At any time, the file is available, under strict access controls, inelectronic form, to authorised users as an accurate, complete and up-to-daterecord. The Woolf reforms point, therefore, to the need for an electronic filingsystem but this has not yet been specified in any detail.
As for the implementation of the new technologies, this has been the subjectof some minor controversy. Some of the press has noted that the IT which is sovital for the reforms will not be available in April 1999 and so, it has beenargued, the very future of the reforms is at risk.
In fact, there has been some confusion here over the readiness of thefast-track as opposed to the multi-track technologies. Generally, the fast-tracktechnology can be expected to be ready before the range of judicialtechnologies; and, in any event, the latter will not come as one monolithicsystem but should be phased in over a number of years. Nonetheless, it is truethat the new systems for neither will be completed by 26 April 1999 (althoughinterim systems will be running).
Yet, no-one closely involved with the IT for Woolf ever believed that any ofthe serious technology would be ready by then. The projects involved arerelatively complex and take time. A robust view is that it is right not to waitfor the IT to start the reform process. Almost all major IT projects are late;and few systems meet all users’ requirements in their first versions.Decision-makers would rightly have been nervous about the start date for thereform being wholly dependent on IT. Such pressure would inevitably have led tocorners being cut (for example, insufficient acceptance testing and training).
When the IT is introduced over the next few years, there is cause to beoptimistic – it will bring huge efficiencies and productivity gains.
| As for the multi-track in absence of judicial case management systems, it is regrettable that the judges will not at the outset have advanced tools at their disposal to help tackle their new responsibilities; but it is by no means fatal. |
As for whether the fast-track can work without IT to support itsadministration, the general understanding is that the Court Service believe thatthey can put sufficient human resources on the job until the technology is upand running. Although this may look rather antiquated (60 extra administratorswill be on the job, it has been said), it is probably preferable (I think) towaiting for the IT to be in place.
As for the multi-track in absence of judicial case management systems, it isregrettable that the judges will not at the outset have advanced tools at theirdisposal to help tackle their new responsibilities; but it is by no means fatal.I say this with some confidence because it was always known that some judgeswould not be using IT in any event; and so that there would have to be parallel(paper and IT-based systems) in place at the very least.
As for the management of the introduction of the new technologies, this isvery much a joint effort, led by the Head of Civil Justice, Sir Richard Scott,working closely with both the Lord Chancellor’s Department and with the CourtService. 11 Two further factors bode well. The first is that the newly appointedChief Executive of the Court Service, Ian Magee, has a background in technologyand IT management and is already personally involved in many of the ITinitiatives. Secondly, the Court Service and the English judiciary now have avery strong working relationship, in no small measure due to the Head of theInformation Services Division of Court Service, Ian Hyams, who has putconsiderable effort into gaining the confidence of the judges (who are a veryspecial kind of user group) especially through the launch of the `Courtroom ofthe Future Project’. 12
Endnotes
1. The original report, dated December 1998, was for the XIWorld Congress on Procedural Law, to be held in Vienna, 23 – 28 August 1999. Itwas entitled `The Challenge of the Information Society: Application of AdvancedTechnologies in Civil Litigation and Other Procedures – Report on England andWales’.
2. For another appraisal of the impact of IT in the JusticeSystem in England and Wales, see Lord Justice Brooke, `IT and the English andWelsh Courts: the Next Ten Years’ (Keynote Speech, 13 Bileta Conference, March1998) at www.open.gov.uk/lcd/judicial/speeches/dublin.htm
3. Version 2.0 of The ORSA Protocol can be obtained at www.courtservice.gov.uk/not_itp.htm
4. Joyce Plotnikoff and Richard Woolf- son,`Replacing theJudge’s Pen? Evaluation of a Real-timeTranscription System’, InternationalJournal of Law and Information Technology 1 (1993) 90.
5. See His Honour Judge Michael Mander, `The Judith Report’,International Journal of Law and Information Technology 1 (1993) 249.
6. Lord Woolf, Access to Justice – Interim Report (WoolfInquiry Team, June 1995). Also available at www.open.gov.uk/lcd/civil/interhd.htm
7. Lord Woolf, Access to Justice – Final Report (HMSO,July 1996). Also available at www.open.gov.uk/lcd/civil/finalhd.htm
8. Sir Peter Middleton GCB, Review of Civil Justice andLegal Aid. Report to the Lord Chancellor (September 1997). Also available atwww.open.gov.uk/lcd/middle.index.htm
9. Modernising Justice: The Government’s Plans forreforming Legal Services and the Courts (December 1998, Cm 4155). This canbe found at www.open.gov.uk/lcd/consult/access/mjwpcon.htm
10. See Chapter 13 of the Interim Report and Chapter 21 ofthe Final Report. This current article does not seek to address all of LordWoolf’s recommendations on IT. The main focus here is on case managementtechnologies because these are the most vital for the reforms.
11. See the IT Strategy of the Court Service at www.courtservice.gov.uk/itstrat.htm
12. See www.courtservice.gov.uk/hq_ind.htm
IT and the Review of the Court of Appeal (Civil Division)
It should not be thought that the computerisation of the civil justice systemends with Lord Woolf’s recommendations on IT. On the contrary, in many ways theWoolf reforms can be regarded as the starting point, as laying the foundationsfor further investment and development. Two initiatives support thisproposition. The first is the work of the Civil Justice IT Strategy DevelopmentGroup (discussed in the final section of this article). The second, the subjectof this section, was a review of the Court of Appeal (Civil Division), which waspublished in September 1997. 13
In late 1996, Sir Jeffery Bowman (former worldwide senior partner of PriceWaterhouse) was asked by the Lord Chancellor (Lord Mackay) to carry out acomprehensive review of the Civil Division of the Court of Appeal. The contextof this review was concern over the increasing number of applications andappeals and consequent delays in the hearing of appeals in England. I wasappointed to join Sir Jeffery’s formidable and yet very good natured team. Theother members were Lord Woolf (by then appointed Master of the Rolls), Ian Burns(Director General of Policy at the Lord Chancellor’s Department), MichaelHuebner (then the Chief Executive of the Court Service) and Baroness Wilcox (aconsumer specialist). The work that followed was, for me, immensely stimulating.
The recommendations of the Bowman Report were intended:
- to ensure that the Civil Division dealt with cases of appropriate weight for a Court consisting of senior and very experienced judges
- to improve the way the Court worked so that it could deal with its caseload more quickly
- to achieve better access to justice.
Once again, a central role was identified for IT. 14To manage the Court’s workload more effectively and to be able to evaluate itsperformance more easily, the development of management information systems wasrecommended. More fundamentally for the work of the Court itself, it wasproposed that judicial case management systems be introduced to support thebroader recommendation of the report that case management techniques (asoriginally introduced to the English legal system in Lord Woolf’s Access toJustice reports) be adopted within the Court of Appeal. In particular, therewere recommendations for the introduction of case tracking systems, caseplanning systems, telephone and video conferencing systems, and documentretrieval systems.
Much of the chapter on IT focused on the systems for the judges. Especiallyinteresting are the results of a survey which was conducted during the review`to determine the disposition of the Lords Justices towards IT’. It transpiredthat (in early1997) more than half of the Lords Justices already used IT in thecourse of their work (one-third had been using IT for seven years or more). Thegreat majority of the remainder expressed a willingness and enthusiasm to learn.This gave Sir Jeffery’s team confidence to recommend `an ambitious programme’for the introduction of a substantial IT infrastructure (internal network linkedto other court systems, Internet access, and video conferencing) and a widerange of applications for the judges electronic communications, documentcreation, document management, external information systems (on the Internet andon CD) and internal information systems (a Court of Appeal intranet).
In all, the report anticipated that greater usage of IT in the Civil Divisionof the Court of Appeal would result in:
- improved usage of the Lords Justices’ time
- greater productivity
- greater consistency of approach
- compatibility between the Lords Justices and other parts of the justice system
- improved internal communication
- new and improved methods of communicating with parties and their legal representatives
- an environment which would support case management.
It is understood that the Lord Chancellor, Lord Irvine, supports most of thegeneral recommendations of the Bowman Report. Indeed, some are articulated nowas government policy in the White Paper, `Modernising Justice’. 15In relation to the technology, as a matter of fact, planning has already begunfor much of the IT that was advocated in the Bowman Report. This is under theable stewardship of the SCL President, Lord Justice Brooke.
The success of the introduction of the new technology in the Court of Appealis of wide interest in the English legal system. For, as is pointed out in theBowman Report, the Civil Division is a particularly interesting test-bed formany of the general suggestions for judicial technology that have been putforward in the last few years. This is precisely because it is atypical: it ishighly influential and widely respected; it is populated by a manageable numberof users (judges, lawyers and administrators) with (in IT terms) a manageablesize of case load; and the judges themselves are exceptional in their abilitiesand commitment. If IT cannot work well here, this would be challenging indeedfor other courts and judges. Although it was not an objective of the exercise,the Review may well give rise to the Court becoming an influential pilot sitefor new technologies.
Litigation Support for Practising Lawyers
What do practising lawyers think of all this new technology and theenthusiasm of both government and the judges? In many ways, the numerousdevelopments sit comfortably with much that is already going on in law firms andchambers. Indeed, one of the first front office applications for lawyers(solicitors and barristers) was litigation support. 16Primarily for direct use by legal advisers themselves, litigation supportconvinced many practitioners in England and Wales in the early 1990s that ITcould be central to legal practice and to the actual delivery of legal service.The term `litigation support’ can be a little confusing, however, because it isused by lawyers in a variety of contexts and can refer to one or more of threeapplications of technology in the arena of dispute resolution. 18
First, and most commonly, litigation support is the use of IT to help manageand control the document load which lawyers have to master to advance andprepare their client’s case.This is the type of litigation support system thatLord Woolf recommended lawyers embrace more extensively. 18It is the main focus of attention here in this section of the article but it maybe helpful to introduce and say a few words about the others before delving intoany further detail.
| It is interesting to note that many senior advocates and judges in England harbour reservations about the lack of relevant court procedures to control this use of IT and are alive to the possibility of technology being misused in misleading jurors and judges. |
The second category of litigation support is the use of IT to store and makereadily available the work product of lawyers as they progress through a caseand generate their own sets of documents. This can be called work productmanagement. Hypertext (the enabling technology which underlies the documentbrowsing capability of the World Wide Web) is a most useful technology in thisconnection for linking relevant documents to one another and so enabling usersto browse across crucial work product (including pleadings and witnessstatements) and evidentiary material (files of correspondence, for example).
The final sense of litigation support is where it refers to the use of IT inthe courtroom itself. This embraces laptop computers for judges,computer-assisted transcription (CAT), displaying documents on monitors acrossthe courtroom, graphics for the presentation of evidence, and even videosimulations of events at issue. Judicial IT and CAT are dealt with elsewhere inthis article. As for the use of IT in presenting evidence, this has caused a fargreater stir in the United States and other jurisdictions where civil juries aremore commonplace than in England, where interest in this kind of technology hasbeen confined to criminal cases. Even in criminal cases, however, it isinteresting to note that many senior advocates and judges in England harbourreservations about the lack of relevant court procedures to control this use ofIT and are alive to the possibility of technology being misused in misleadingjurors and judges. At an SCL litigation support conference in 1990, thishesitation was captured by Lord Griffiths – in paraphrasing one of Disraeli’saphorisms – by suggesting that `there are lies, damn lies and graphics’. Whatlawyers will think of virtual reality applications, which will surely come tothe courtroom in due course, one can only begin to guess.
Returning to the most common usage of the term litigation support (in thesense of document management), it should be added immediately, despite the localliterature and bravado, that much (although not all) litigation support is stillin its infancy in England and Wales. In contrast, it was first introduced in theUnited States in the mid-1960s and has been embraced more extensively theresince then. This is not to say that there are not advanced users andsophisticated suppliers in England. On the contrary, some are as leading-edge ascan be found anywhere. However, the technology is very far from pervasive: acomparatively small number of English practices use the technologies. There isconsiderable depth, therefore, but surprisingly little breadth of usage.
To put the application still further into context, the main thrust oflitigation support is to automate various aspects of trial preparation. Ratherthan having teams of paralegals and junior lawyers thumbing through mountains offiles and photocopying extracts well into the small hours of the morning,litigation support technologies streamline these manual processes. Searching,retrieval, cross-referencing and annotating can all be automated using IT.Lawyers can locate relevant papers more quickly than using manual methodsallows. While the cynics are right in saying that litigation support is simplycoping with the chaos IT created through photocopying technology, it is still animprovement that is long overdue.
| The point of litigation support is that the full document load should not need to be read or searched through manually, in its entirety, more than once. |
Whether the facilities reduce the cost of litigation for English clients isin doubt. A common view is that this application generally enables lawyers to dofar more for their clients (more thorough and comprehensive work) in theavailable time and so for the same (but not less) fees.
For the avoidance of doubt, litigation support does not obviate the need foran initial appraisal of each document. In the absence of natural languageprocessing technologies, it is hard to see how any competent lawyer can avoidlooking through case documents once, for it is only then that the relevance orotherwise of the documents can be assessed. The point of litigation support isthat the full document load should not need to be read or searched throughmanually, in its entirety, more than once.
The potential of this technology is particularly clear in complex technicalcases, such as construction or computer disputes, where the party that hasmastery of the documents can enjoy a clear strategic advantage over others. Butlawyers invest for other reasons as well: the overriding aim for some is tocontrol the costs of the dispute by handling the documentation more efficiently;while others are motivated by a desire to keep apace with opposing parties whohave indicated they are using IT (or where it is suspected that they are).
Three techniques have dominated litigation support over the past decade. Oneapproach is to compile a computerised index of all documents relating to a case.Each document can be represented in a database as a collection of `objective’features (eg date of document, author, recipient) as well as subjectivefeatures, requiring lawyers’ classifications (such as whether a document isprivileged or prejudicial to the client’s case or raises a particular point oflaw). Once set up, such a system can sort all documents, for example, in dateorder or by authors’ name.
A second and complementary approach to litigation support uses document imageprocessing technology. This is the process which can be likened to taking`photographs’ of individual documents and so this technology can cope well withmaterials which are neither printed nor typed, such as drawings or documentswith handwriting, signatures, marginal annotations, date stamps and so forth.Users of systems that hold images cannot search for individual words within theimaged documents (the text is not in machine-readable form). Rather, they canview these images as if perusing microfiche on a computer screen.
The third technique is to build a retrieval system that holds not an indexbut the full text of a collection of papers. This should enable lawyers tosearch quickly and easily within the entire text of documents for the occurrenceof single words (for example, names of individuals, companies, places, or termssuch as `warranty’ or `delay`) or for words in combination (for instance, thename of a company within a specified number of words of the name of anindividual or a phrase such as `defective software’).
| If in major cases of the future, all parties have the documents held in litigation support systems (loaded perhaps by some external bureau), a key point of differentiation amongst practices will be law firms’ relative proficiency in exploiting the data in these systems. |
More advanced users have found that the real benefits of litigation supportcome with a subtle combination of these three techniques and withhypertext-based work product management systems as well. The sophisticationneeded here is in selecting one or more of the three appropriate technologiesfor any case at hand, a decision over which lawyers often agonise. While it iscommonly thought in addressing the needs of particular matters that the sameselected techniques should be applied to all the documents, in reality this isunworkable and commercially inappropriate and leads either to overkill or tomissing an opportunity of full analysis of vital materials. A convincingargument can be made to support the view that the selection of techniques shouldbe dictated very largely by the relative significance of the documentsthemselves. In any dispute, the documents can be categorised according to theirlikely impact (which, to make matters difficult, can change as a caseprogresses); in light of which appropriate enabling techniques can be allocatedto each category (for example, vital documents may be subject to all availabletechniques, while peripheral ones may only enjoy superficial indexing).
Perhaps the most common combination of techniques currently favoured inEngland (and generally favoured by me) is indexing together with imaging -useful but not prohibitively expensive.
For clients, developments in litigation support raise challenging questionsabout the suitability of the lawyers they instruct. A further set of criteria inselecting legal advisers now emerges, relating to the extent to which lawyershave appropriate technology skills and support. If in major cases of the future,all parties have the documents held in litigation support systems (loadedperhaps by some external bureau), a key point of differentiation amongstpractices will be law firms’ relative proficiency in exploiting the data inthese systems. Are the lawyers adequately trained in advanced searchingtechniques? What practical experience and track record do they have withlitigation support? Do they have permanent, first-rate support staff? Are theyusing advanced techniques, such as conceptual searching, augmented front-endsand hypertext to enhance the basic systems? Are they capable of advisingproactively on versatile document management systems? Do they understand thecomplex legal questions, regarding issues such as admissibility andauthentication of evidence, that litigation support systems raise?
| Will the children of today feel it vital to congregate together in one physical location to enforce their entitlements or might they find it more natural to `appear’ through video conferencing, or have their disputes resolved through some kind of online adjudication service? |
Certainly, a question today for all clients is whether their current lawyersare investing sufficiently in IT in preparation for the central role it isdestined to play. The stage is set for major change in the world of litigation.Even by the early years of the new millennium, large-scale or complex litigationwithout IT will be virtually unimaginable.
Long-term IT Strategy for the Civil Justice System – civil.justice
The last observation leads neatly to the final topic addressed in thisarticle long- term strategy.
One of Lord Woolf’s recommendations on IT was that a group should be set upto consider and formulate a long-term IT strategy for the civil justice systemas a whole. This idea was taken up in earnest in late 1997 by the Minister ofState at the Lord Chancellor’s Department, Geoff Hoon MP (who was the Shadow ITMinister during the previous Conservative administration). Under the Minister’schairmanship, a Group was set up (known as the Civil Justice IT StrategyDevelopment Group), with the broad idea of making recommendations for the roleof IT in civil justice over the long term. SCL was well represented on the group- Sir Brian Neill and I were appointed as members.
The main piece of work undertaken by the Group so far has been thepublication of a consultation paper in September 1998. Entitled `civil.justice’and sub-titled `Resolving and Avoiding Disputes in the Information Age’, thepaper expressly states that it relates to the civil justice system 5 to 15 yearshence (suggesting that Lord Woolf’s recommendations on IT set the agenda for thecoming five years). 19 In short, civil.justicetakes up where Lord Woolf’s work on IT ends.
The terms of reference for the group can be paraphrased as follows: todiscuss the future of the civil justice system and its use of IT post-Woolf; tolook at the future prospects for the development of IT and consider theirpotential for innovation in the civil system; and to consult relevant groups,individuals and businesses with an interest in civil justice, including thejudiciary, the legal profession, other government departments and others.
The closing date for responses to the consultation paper was 18 December1998, with a view to producing a final report, it is likely, some time in mid tolate 1999.
In the preface to civil.justice, Geoff Hoon explains why it was consideredimportant to take a long-term view:
- to ensure that money spent now on short and medium-term IT is not wasted in years to come
- to help produce a long-term vision that will lead the way for the civil justice system
- to engender greater public confidence; and to attract private sector investment.
In its 40 or so pages, civil.justice covers an enormous amount of ground.Only a flavour of its contents can be given here.
Perhaps the most provocative part of the consultation paper is the secondchapter, which identifies some 16 assumptions that are frequently made about thecivil justice system; and, to some extent, each is challenged in the light ofthe possible impact of IT. The following four assumptions indicate the type ofdebate that is being encouraged:
- civil justice involves the resolution and not the avoidance of disputes
- the work of civil courts must be conducted in physical courtrooms (it is asked: is ‘court’ a service or a place?)
- presentation of legal arguments orally is central to the administration of justice
- not all cases can be reported.
Each of these assumptions (and 12 more) are called into question.
New directions in legal services are also identified in civil.justice.It is postulated, consistent with some of the central arguments in my book, TheFuture of Law, 20 that high value and complex legal work of today’s lawyerswill not be fundamentally changed through IT but will certainly be rendered moreefficient (optimised and streamlined). At the same time, legal work that isfrankly routine and repetitive work will in due course come to be systematisedand, later, delivered online. Finally, and most radically, IT is regarded asvital tool to overcome the grave social ill of `unmet legal need’: the reportenvisages, for example, online legal guidance systems accessible to non-lawyersthrough the next generation of televisions; and online legal information systemsto support and empower voluntary legal workers (both of which may well becentral to the government’s proposed Community Legal Service).
Disputes and the court system are, of course, central to the consultationpaper. Acknowledging that the problems and challenges facing the low-value,high- volume cases are quite different from those of the high-value, low-volumematters, civil.justice does seek to address both categories. A variety oftopics are addressed: the need for an intranet for the Court Service and thejudiciary which is connected to the wider GSI (the UK Government SecureIntranet); unified case management; multimedia electronic files; litigationsupport systems; courtroom technology; alternative dispute resolution and IT;judicial technology; and `virtual hearings’.
This last possibility goes to the heart of all serious questions about thefuture of civil litigation and dispute resolution – will the children of todayfeel it vital to congregate together in one physical location to enforce theirentitlements or might they find it more natural to `appear’ through videoconferencing, or have their disputes resolved through some kind of onlineadjudication service?
So, what has been the reaction to civil.justice? By the closing date,around 60 responses were received (almost all of which will shortly be madeavailable on the Web). In very broad terms, I believe they fall into two camps.One camp, occupied exclusively by lawyers and judges, expressed the view thatthe civil justice system is in good shape and the only role for IT is to renderit a bit more efficient. The other camp (occupied by users of the court system,legal publishers, IT specialists and non-lawyers generally) put forward the viewthat the system is in dire need of modernisation and fundamental change throughIT. (Neither camp tended to make it clear whether they were referring to thepre-Woolf or post-Woolf civil justice system.) Only a handful of responses tooka balanced view between the two extremes. I am pleased to say that one of thesewas the SCL response, which in my view was especially impressive and a credit tothe Society.
What is vital, however, is that some of the most difficult issues are nowbeing debated publicly. In the context of this ongoing discussion, I urge thatwe continue to remind ourselves of the benefits that can reasonably be expectedfrom IT in the English civil justice system in the long term. A powerful pointerhere is given in civil.justice (in the preface). There, it is said thatthe major benefits should be:
- increased efficiency and so cutting of costs
- better productivity and so reduction in delays
- improved justice and access to justice
- greater public confidence in the justice system.
If this is achieved, IT will indeed help to transform the civil litigationprocess in England and Wales in the 21st century.
The field of computers and law has never been more action-packed andexciting.
Endnotes
13. Sir Jeffrey Bowman, Review of the Court of Appeal(Civil Division) (September 1997). Also available at www.open.gov.uk/lcd/civil/bowman/bowhd.htm
14. Chapter Eight of the Bowman Report makes detailedrecommendations on IT>
15. See endnote 9.
16. Another vital application for practising lawyers, whichI will save for treatment on another day, is case management.
17. On litigation support generally, see Richard Susskind, TheFuture of Law (Oxford University Press, 1996 and 1998 (paperback)).
18. See especially Chapter 13 of Lord Woolf’s InterimReport.
19. Copies of civil.justice: Resolving and AvoidingDisputes in the Information Age (September 1998) can be obtained fromdhartley.lcd.sh@gtnet.gov.ukor www.open.gov.uk/lcd/consult/itstrat/civcon.htm
20. Oxford University Press, paperback edition, 1998.
