Long gone are the days of multiple reprographic hard copy productions to several parties in a complex litigation matter. So too are the many trips to and from the court house for purposes of retrieving and initiating legal filings. The many hours paralegals spent reviewing pages of every deposition transcript to digest important facts for review by the litigation team and in-house counsel are no longer necessary because of advanced transcript management technologies. Likewise, trial presentation technology has made exhibit blow-ups and multiple copies of exhibit binders obsolete in the court room.
In the past five years technology has made trial lawyers and their clients reconsider their litigation strategies, especially for large document cases. Advanced technology has a cost and, for some cases, may not make economic sense, but, for the right matter this initial investment will pay significant dividends in the form of time, cost savings, and success at trial. The key, however, is successful planning from the outset.
Planning should begin well before a complaint is filed. Under developing caselaw in many jurisdictions, a client has a duty to preserve potential evidence when it could foreseeably be anticipated to be discoverable in ensuing litigation. This has been an increasingly burdensome task because so much data now resides in electronic form in multiple locations. The trial attorneys, corporate legal team, and corporate IT department should be fully cognizant of the client's document retention systems, policies, and procedures. Rather than risk breaching a duty imposed by caselaw or statute, there is a simple rule to follow to avoid trouble: once you are aware of a potential suit you should make sure potentially responsive electronic documents - e-mails, instant messages, and electronic databases, among others - are preserved.
Once litigation has commenced, the use of the court's Electronic Filing System (ECF) is necessary (indeed, in many places, it is now mandatory) and enables the attorney and client to stay informed of current court events involving the litigation. ECF, and other fee-based web systems are great tools for monitoring not only the current matter for the client, but any new matters that may potentially be adverse to the client. Dockets can also provide a treasure trove of useful information about a party's past litigation, an attorney's conduct in other cases, and even decisions concerning the admissibility of expert witnesses.
Discovery Stage - Documents And Data
One of the most difficult tasks in any complex litigation is the trial team's ability to gather all the documents that potentially relate to the litigation. For hard copy materials, this may involve no more than reviewing several filing cabinets of documents. Unless the scope of discovery leads you to a warehouse of several thousand boxes of documents, the most cumbersome chore today, however, is the ability to identify and retrieve all sources of relevant electronic data. To do so requires a timely planning meeting with the trial team, corporate counsel, and the client's IT staff. The nature and scope of electronic documents used in business today is constantly expanding. Your strategy must consider e-mails, voicemails, instant messaging, database applications, server configurations, back-up protocols, and even storage facilities. Suffice it to say, an attorney cannot adequately comply with the Federal Rules of Civil Procedure simply by asking the client to print up a few responsive e-mails.
Once the population of potential documents and data have been identified, strategies to implement the appropriate technology include the following steps:
1. Identification of third-party vendors for potential assistance with scanning, OCR (Optical Character Recognition), and coding of hard copy documents. The physical quality of the documents should be assessed before making a decision to OCR the documents. Handwritten documents, unusual fonts, faxes, and several copy generations are typically poor candidates for OCR.
2. Identification of third-party vendors for data retrieval and processing, including restoration of back-up data, de-duplication, and metadata extraction of electronic data.
3. Determining the best database solution for the project. Will the system be used only by the law firm - or will there be a need for in-house counsel, co-counsel, or experts to access the data? If the circle of users expands, care must be taken to preserve attorney-client and work product protection.
4. Coordinating with opposing counsel to seek agreement on the scope of production and on a format for producing discovery documents. This is especially important because electronic spreadsheets and databases do not lend themselves to being "printed" and produced. Be certain to exchange test data in an effort to avoid misunderstandings.
5. Preparing a manual for use by the coders that outlines the specifications for coding documents. This is crucial. The coding at this stage is largely objective (i.e., date, type of document, document title, author, recipient, etc.), but this step is where mistakes could mean missing a key piece of evidence. Using a reputable and experienced firm, checking on quality assurance/quality control, and constantly monitoring the process are all critical to success.
After locating, gathering, scanning, and coding has begun, the most important step is to make sure the entire legal team is well trained in the use of the selected database as they undertake their substantive review. Law firm network databases better control the flow of data, but can be limiting on the client's need to participate in the review process. For this reason, secured website repositories are great solutions because of their flexibility and multiple access ports. In either case, training is fundamental to ensure proper use and output from these sophisticated systems.
This is where the investment in technology starts to show its worth. A document database system reduces time for quickly storing and locating key information. The review process allows the legal team to determine relevance and privilege issues and to categorize documents into specific electronic subject or witness files. A key component of any database review is the application's functionality to allow for further coding during the review process. If new issues arise, or if your understanding of core issues is further refined (which is to be aspired to), then a great deal of time will be saved by utilizing a flexible database that can permit the input of new data. If a less robust system is used, then the legal team may have to retool vast portions of work product to accommodate the new information - a wasteful process.
Discovery Stage - Depositions
The specific electronic witness and subject files that were created during the review process play a major role in the deposition phase. Documents are readily available to prepare witnesses or to prepare for taking depositions. Tagging different color post-its to documents based on different witnesses and subjects and then having those documents copied multiple times (hoping that the tags don't fall off or get misplaced) for integration into witness files is a slow, costly, inefficient process. With electronic categories, the legal team has efficiently created the witness and subject files for the case and can share that work product well beyond the confines of a "war room." The attorneys or paralegals also have the ability to hone searches against the entire electronic database to narrow the witness and subject matter files and, in short, to find the best evidence for the case.
Transcript management databases have two main functions: they store an electronic copy or copies of transcripts and allow the attorney to receive a real-time feed during a deposition or other transcribed proceeding. Once the electronic transcript is saved to the transcript management system, attorneys and paralegals can perform a variety of tasks, including searching for key terms across all testimony, annotating relevant portions of testimony, and creating reports based on search criteria or annotations. These functions have, for better or worse, eliminated the task of digesting all transcripts and the large number of hours associated with it.
Real-time feed is very useful to attorneys or others who are not physically present at the deposition. Several transcript management packages have a module for instant messaging between secured parties during the testimony, which can provide the interrogating lawyer with useful ideas while the examination is unfolding.
Deposition exhibits can be scanned, loaded, and linked to testimony in transcript management databases. Alternatively, the exhibit images can be linked to an indexed MS Excel file and downloaded to CD or other media for distribution to the legal team to take on the road. Furthermore, the deposition exhibit index can be used as the foundation for an index of trial exhibits. Proper planning permits an attorney to travel on an airplane with a laptop loaded with hundreds of deposition transcriptions, thousands of exhibits, and mountains of work product. Never before has information been so portable or useful.
Several factors will determine if trial presentation technology is needed, such as case complexity, cost, venue, and the type of case. Many judges have opined that the use of such technology is persuasive, and multiple studies have demonstrated that jurors are more likely to recall key facts when visually presented. Trial counsel should consider using some level of advanced technology presentation, even for relatively simple cases. There are numerous products and vendors to assist with trial technology. The key is finding a system that is easy for the trial attorney to understand, but that has enough flexibility to enhance the visual experience associated with the evidence being introduced, such as Powerpoint presentations, video clips, animations, documentary evidence, etc. There are many bells and whistles available - but a few of the most useful are features that permit you to enlarge or highlight portions of text, synchronize video with deposition transcript, and "smartboards" that permit the lawyer to combine features on one demonstrative exhibit.
The key to trial presentation is the synergy between the lawyers and the trial technician or litigation specialist who electronically displays images, demonstratives, and video at trial. A good trial technician will anticipate the lawyer's needs, but this coordination requires practice and attention from the trial lawyer. If animations, timelines or other demonstratives are needed, the trial team will coordinate with the trial technician, expert witnesses or a separate graphics company in developing the most persuasive presentation.
The trial lawyer has always tried to simplify and distill his or her presentation to the fact finder. This is our art. Trial technology does not change this role, but it augments a lawyer's ability to make a case easier to understand and, hopefully, more persuasive. The effective use of technology at trial begins months or years before opening statements. The trial lawyer needs to begin the quest for key evidence and case themes as soon as the case comes through the door, and trial technology should be used to gather, sort, filter and, ultimately, to present the best data, documents, and facts when the story is finally told.
Matthew White is a Partner with WolfBlock and Christopher Starr is Chief Litigation Technology Specialist with the firm in Philadelphia.