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April 2001
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Litigation Support

Use It or Lose It

If you delegate litigation support tools to junior lawyers you may miss the smoking gun that wins the case.

By Jon Sigerman

Use it or Lose it SIMPLY STATED, a mid-sized firm will get the most value out of computerized litigation support system when the firm's top litigators use it. The leaders of the litigation team must be hands-on user, not merely delegate the software tools to junior "briefcase carrier" members of the trial team.

Why? Because if they don't use it, they'll lose its inherent benefits.

Consider a typical set-up for a savvy lead counsel. Let's call her Sally Smith.

Smith's I.T. and/or vendor team have configured her laptop computer so that she can access electronic versions of deposition transcripts, document summaries, and scanned images of documents in the case.

Let's say Smith is trying a case where pricing is a key issue in a contract dispute. She's sitting in the courtroom, listening to witness Ima Bore drone on and on. Suddenly, Bore makes a statement about "Widget 2000" that doesn't ring true to her earlier testimony in depo number three.

A recess is taken before cross-examination commences. Using her laptop, Smith quickly performs a global search for the phrase "Widget 2000" in Bore's three deposition sessions, as well as the documents that were produced from Bore Device Corp. in the first discovery wave.

Smith observes a very interesting interplay between the testimony and document summaries that appear in the search results. She quickly performs a simple, follow-up search of her case-in-chief document collection.

The search results are first presented to her in order of document control number. She clicks on the "sort by date" heading to re-display the search results chronologically, thus enabling her to, in essence, see a chronological slide show of the actual document images.

There it is! She spots a letter written by Bore, and observes faint marginalia containing handwriting, which she recognizes as the defendant's. The content of the marginalia, coupled with later deposition testimony establishing when it was written, turns out to be a smoking gun. She wins case.

Never Found

Typical Support Architecture

Litigation support systems for mid-sized firm typically include:

1. A network, where a central server (or array of computers) acts as the mothership, distributing information to litigation team members.

2. Workstation(s) for coding, scanning, and packaging the underlying information for delivery into the mothership.

3. Attorney workstation(s) that allow them to cut the umbilical to the mothership and still work with the core case information while in transit or in the trenches.

Alternative configurations of networks and "staging" workstations include:

1. A local area network (LAN), coupled with connections to an in-house document conversion/coding center.

2. An in-house Web-server distributing the information over an Intranet (to service the firm and its satellite offices) or Extranet (over which information is shared by multiple firms, or the firm and their clients).

3. The mothership server and infrastructure, as well as coding/conversion/information staging facilities housed, managed and operated by a third party vendor (or vendors), or an application service provider (ASP).

This document may never have surfaced had the global search been delegated to staff. For starters, time was of the essence; cross-examination was going to begin in minutes. More importantly, even if there was time to delegate the search to staff, the key document would not have been retrieved by the initial global search criteria.

It took Smith's experience, familiarity with the case, and intuition for her to be able to explore (and comprehend the significance of) the condensed snippets of testimonial and documentary evidence consolidated in search results display. She was able to cut quickly through irrelevant information and methodically zero-in on the key data.

Strategic ideas -- as well as opportunities to deliver an evidentiary counter-punch while in the courtroom trenches -- live in a narrow time window. Delegation to others, who may lack the litigator's understanding of the nuances of the case, increases the risk that key opportunities will be missed. Lawyers have but a few fleeting moments to impeach a witness or hammer home a particularly salient point. This is especially relevant for mid-size firms, where there may be less staff available to fetch information on a moment's notice.

Delegation

Where should the top litigators draw the line between hands-on usage and delegation? Certainly setting the information stage, and administering the platform should be left to the I.T. and litigation support professionals. Referring back to the operations which led Sally Smith, to the smoking gun document, did the litigation support professionals play a role in the winning that case? Answer: They were essential. Their role included but was not limited to:

* Loading the prior transcripts in the case so they were accessible at Ms. Smith's workstation during trial.

* Making sure the documents and their images, even from the eleventh-hour document productions, were accessible to Smith's workstation.

* Customizing search result report format to Smith's specifications so that she best analyze the displayed results.

* Training Smith to use the integrated search capabilities of the system, so that a minimum amount of her time and energy was invested for her to become totally self-empowered.

Many firms outsource the technically sophisticated operations of coding the documents; associating the search index (document abstract) with the image; implementing security protocols; and getting the stage set so that abstracts, image, and transcripts are funneled into a single point of access -- counsel's notebook.

You can effectively fight lawyer technophobia by showing your litigators that they don't have to be rocket scientists to master these litigation support tools. For example, the computer operations needed for Smith to carry out the global search, scroll down the results display, drill down with a follow-up search, and page down the image chronology are simple.

Support Laptops

The most effective use of litigation support programs is usually not in the office -- but in courtrooms, at depositions, etc. That usually means that you want Smith to use lit support tools via a laptop. In fact, remote use of litigation support often pays greatest dividends (e.g. last minute deposition preparations on an airplane, in the trenches at deposition or in court.)

Be sure the system you choose has a platform architecture that supports heavy laptop usage, so that your lawyers can search, access, and annotate the case information in transit, or under any circumstance where they are not plugged real-time into your network or the Internet. This can be an issue with ASPs. When there is no Internet connection available, there is no access to the data, if no "offline" options are available.

However, some ASPs provide repository access via both a browsers and a distributed client application allowing for either online or offline use. Likewise, some vendors of in-house network-based litigation support systems (LAN, WAN, Web server) provide combination systems consisting of network servers, concurrent-user local workstations, and portable workstations that can operate separate and apart from the network.

Although the typical mid-sized firm litigation support system architecture involves some form of network configuration, a substantial number of mid-sized firms still use standalone litigation support programs. While the basic hands-on usage concepts still hold, the litigation support platform consists exclusively of the end-user workstation, e.g. a notebook computer.

It serves the role of both the stage setting system, where the information is loaded, and the system from which the information is retrieved on the road and in the trenches.

Jon Sigerman is president of Summation Legal Technologies, Inc., in San Francisco.

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