Litigation Showcase

Litigation @ The Speed of Thought

All rules have changed in the last 15 years as technology transforms trials.

By Michael Arkfeld

IN THE 1850s, when Abraham Lincoln practiced, he studied from law books; drafted his own pleadings with a quill pen; held face-to-face meetings; and charged his clients on a "value based" system.

In 1985, 135 years later, we studied from law books; prepared our pleadings with a pen, dictaphone, and typewriter; talked with our clients by telephone; but now billed by the "hour." The technological advances were not significant and generally did not give an edge to a practitioner. The use of brute force -- by using a lot of staff -- was a formidable factor to an opponent.

But then things changed. Later in 1985, the personal computer with its ability to process and store information at phenomenal rates started to move into the mainstream. At the same time, the most powerful communication tool of all times -- the Internet - began its rapid growth. Legal and factual information now could be stored, instantly retrieved, reused, organized and transmitted to the client or anyone at the whim and control of the user. What used to take a lot of personnel to accomplish could be done with less people and more computer and bandwidth power. In less than 15 years, technology has changed the rules of litigation and practicing law.

These changes will affect litigators from pre-complaint discovery to the final appellate argument. Here's an overview:

Pretrial

Virtual law firms: Low cost virtual Internet offices (www.hotoffice.com) allow litigation lawyers to group themselves together from the same locale or different parts of the country and refer clients, share calendars, pleadings and other workproduct, discuss legal issues in chat rooms, and accumulate other resources for the group to use without the necessity of having a physical location. These same "offices" can be set up with a client or clients with the same functions because the entry cost of setting up an "office" is as low as $13 dollars per month per participant.

Law offices: Physical law offices will use less paper, as electronic filing, e-mail and digital litigation collaboration drives law firms to set up digital document depositories. Users will be positioned in the office or at any remote location with a multifunctional device -- printer, fax, copier and scanner -- that will serve as a paper gateway into and out of the "digital" repository. If you need paper copies, merely print them, if you wish to scan/fax a document into the digital repository just insert the document and the document will be sent to the digital center to be available for all.

Office and client communication: With the emergence of the Internet, Extranets and Intranets, office and client communication will grow at phenomenal rates. Using a standard Internet browser you or your client can have access to litigation action plans, case memos, document databases, pleadings, depositions, calendars, case discussions, and any other litigation material important to your case. Extranets combined with the use of e-mail, listservs and Web pages can support many attorney-client functions and solidify an existing relationship. It will provide the virtual platform for collaboration among clients and co-counsel on cases.

Digital case documents, transcripts and calendars: Documents and other case material increasingly will be scanned into a digital format or obtained digitally from opposing counsel such as e-mail, etc. These materials will be available to the litigator either on a CD-ROM, hard drive, DVD or through a digital repository on the Internet. ASPs (application service providers) such as www.casecentral.com and LextraNet now offer storage, retrieval and viewing of litigation documents, databases, and transcripts over the Internet to authorized users. This data will be stored and retrieved by voice commanded natural language queries in full text or database software.

Depositions and trial testimony: Court reporters writing real-time or court "scopists" using voice recognition can translate the spoken word into computer readable text that can be instantly viewed or sent to anyone in the world in seconds, along with the audio and video of the proceeding. Depositions will be conducted via videoconferencing, because it is less expensive, saves time and the quality (depending on the purpose of the deposition) is generally comparable.

Electronic interaction with the courthouse and other branches of the government: E-filing, accessing and viewing court records and calendars, corporate and tax filings, electronic ordering of car license tags and so on will proliferate over the next several years as government realizes that many of their functions can be ported to the Internet. These government organizations will adopt similar live Internet customer chat (audio or text) sessions as shown by commercial sites (such as www.landsend.com) where Web product pages are sent to the online customer's computer real-time. Electronic filing of court documents is rapidly moving ahead on a national and statewide basis, as courts realize the tremendous labor savings in having documents online without the need for paper storage.

Training and CLE course: Many legal related courses are already being offered online, but the number and quality of live and archived courses will see a dramatic jump in direct correlation to the integration of higher Internet bandwidth in the attorney's office. This type of delivery of training will be driven by cost and timesaving, quality materials and we will see learning increase as all forms of multimedia are used for these online programs.

Internet factual and legal research: The Internet provides literally millions of Web sites to locate all kinds of information relevant to your cases. Practical uses of the Internet for discovery include product standards and specifications, locating fact and expert witnesses, locating businesses, products and services, reference materials, medical information, travel information, and so on.

Legal resource portals or centers: We will begin seeing legal portals that will offer a full range of one-stop shopping for the litigator. It will provide process service, court reporters, corporate filings, e-filing assistance, data coding, imaging, hypertext briefs, form pleadings, document and transcript depositories and a host of other electronic services for the practitioner.

Litigation, settlement and damage calculations software: Litigation related software will continue to evolve and will become more full featured as functions such as real-time and outliners become part of the standard package.

Litigation knowledge management software such as CaseMap will grow rapidly as lawyers realize that the issues, witnesses, documents and other information can be easily entered and linked together for use in depositions, opening statements, etc. Either using CD-ROM or online through the Internet the value of cases will be instantly determined as structured settlements, similar case comparisons, etc. will be done instantaneously. Customized spreadsheets and decision tree analysis will be developed to allow for "what if" scenarios in cases and for automatic settlement and damage proposals.

Trial

Multimedia presentations in the courtroom: Classic multimedia studies reveal that using visuals along with a verbal presentation increases the listeners' retention of the information by over 40 percent! This, coupled with the fact that all people, especially "Generation Xer's," receive more than 50 percent of their daily information from sources other than newspapers, will increase the use of multimedia for presentation of a case in the courtroom. Paperless trials will become more commonplace as courts and practitioners realize that 30 to 50 percent of trial time is saved by using a paperless presentation format. Courtroom exhibits will be prepared on the fly in the courtroom with computers and digital presentation systems.

Virtual appearances of counsel and witnesses: Testimony or attorney appearances by video, text and/or audio can be sent real-time from anyplace in the world to a trial or other legal proceeding using a standard telephone line.

Michael Arkfeld, based in Phoenix, is a practicing attorney, speaker, and author of The Digital Practice of Law.