Paperless courts to leave profession crumpled?

The introduction of new technology has changed the way the legal profession operates. Instead of darting back and forwards between their desks and trolleys, sifting through dozens of documents, lawyers are tapping away at keyboards, making notations on real-time transcripts of witness testimony and conversing with learned colleagues and witnesses in different time zones.

But the technology has brought with it a multitude of new issues for the legal profession. Some of these were addressed by the NSW Supreme Court when it released Practice Note No SC Gen 7 in 2006 – setting out the protocols of technology use in the Supreme Court and providing guidelines for its use in civil litigation matters. The note provides a framework and default standard for managing hardcopy and electronic documents, and outlines trial requirements with respect to technology.

The need for such a practice note is clear. With new advancements changing the nature of litigation, some legal professionals are finding it difficult to keep up with innovations in technology.

“Most clients expect law firms to engage in some form of e-litigation,” says Neeraj Chand, the NSW branch manager of document management company Law in Order. “If you look at the latest practice notes for the commercial and technology division of the Supreme Courts, you see that they encourage all lawyers to exchange documents electronically. But lawyers have to be proactive, rather than responsive.”

Chand believes the use of technology in the discovery phase of litigation is invaluable to the legal profession, and he is seeing more legal professionals taking up training in e-litigation.

“Historically you had about 90 per cent of documents in hard copy and 10 per cent electronic. Now you generally see about 40 per cent in electronic format, with some cases going as high as 75 per cent. In the future I expect it to be somewhere around 90 per cent. And more and more you see it being used by smaller and mid-tier law firms, whereas in the past it was confined to the larger matters.”

Freehills partner Graeme Johnson worked on the landmark C7 litigation, which utilised many elements of electronic courts, and believes technology is particularly useful in the discovery phase of large cases.

“I think one of the advantages is that once you have documents electronically, you can have them on databases and you’re able to make comments on documents that you can then share with your team, which means to an extent you don’t have to reinvent work,” says Johnson.

“It makes things a lot easier. These days you can have everything on your computer and you can work in your office with all your documents in place, or you can log in to the system from home or another office and get access to all those documents whenever you need it.”

Not only is the technology useful in the discovery process, but it is also revolutionising the experience of clients and lawyers in court. With the advent of such tools as real-time transcripts, lawyers are able to deal more effectively with witness testimony, and better engage in cross-examination.

“It was used very much in relation to the C7 trial. We had real-time transcripts, we had documents, statements, expert reports – all those sorts of things loaded on our computers, which was available for instant access by the judge and all the parties,” says Johnson.

Clayton Utz senior associate Alan Blinder believes elements of technology and electronic courts will soon be used in almost all cases.

“The electronic courtroom is something that’s very convenient … It allows a much faster turnaround. Being able to check transcripts as and when they appear in real time, and follow on with further questions, make your submissions in slightly different ways – that’s all quite terrific in terms of being able to react to things properly and quickly and push the judge over the line.”

According to David Tait, University of Canberra senior law lecturer and coordinator of the Court of the Future Network, embracing the new technology will also lead to greater access to expert witnesses.

“Theoretically it is now possible to have the very best witness for every single case, because there’s such a cut down in cost and inconvenience. It’s really a gateway to the courts. It’s now possible for courts to have access to witnesses who would otherwise be unavailable. An expert may want to continue their work and might not want to travel for a trial … if they’re able to remain in their own facilities with access to all of their own technology that they can display online, they’ll be in a much better position to accommodate the increasing demands for their services,” says Tait.

But while the courts seem to be encouraging a greater uptake of electronic litigation, and though it does provide greater efficiency for cases, the introduction of electronic elements into the courts has not necessarily cut down on the workload for lawyers and barristers.

While the conversion of documents into digital formats has greatly improved the efficiency with which lawyers can deal with large discovery sets, it has also made the discovery process more complex, and has raised clients’ expectations as to what lawyers can do.

“It has made the processes easier, but it can increase the workload because there are higher expectations on what you can do and how quickly you can do it,” says Clayton Utz’s Blinder. “When you get to things like discovery, there’s quite a lot more analysis to be done, and in some occasions you have to engage experts. It brings its own challenges as well as the rewards of being able to do it quickly.”

Though e-litigation is a booming sector experiencing much growth and innovation, those who have experienced the technology first-hand believe it may take time for it to be embraced on a wide scale.

“It’ll definitely take time, but gradually it will [be embraced],” predicts Johnson. “For example, people who have come through in the last 10 years have probably done a lot of work with computers. As such, they’d be very well acquainted with them, and comfortable using them. But people who are in their fifties and sixties and haven’t been brought up that way naturally aren’t used to it, so it’ll take a little while. But gradually it will permeate everything that’s done in litigation, I suspect.”

While Johnson suggests that one barrier to widespread adoption of new technologies may be a reluctance felt by the older generation, Tait claims that it also has much to do with exposure.

“I would agree that many of the older generation can be reluctant, but there are exceptions,” Tait reveals. “Some of the leading proponents of the new technologies are judges who have already retired, or who are on the cusp of retirement. So it’s not just an age thing. It’s to do with familiarly with technology.”

Blinder believes that the key to making judges more comfortable with e-litigation is for them to experience the changes for themselves.

“Just like anybody else, some judges will jump on it very quickly, and once they have experience with it they see the possibilities, while others will hesitate and will still expect you to hand up something in a paper form rather than searching through a database for a document. People take time to adapt to new strategies and new technologies.”

Another hurdle for the new technologies being embraced are perceptions about costs. However according to Blinder, if systems are set up it properly to begin with, with an analysis as to the needs of each individual client, cost should not be an issue.

“There doesn’t need to be a large upfront cost. There are ways of setting up efficient systems without spending an absolute fortune. It will largely be dictated by the case … But ultimately, if used properly, it will definitely result in a saving.”

Many lawyers and barristers are wary of using e-litigation because they fear it might be too difficult for them to operate. Johnson says that in his experience the new technologies are not complex however, but training is important so that lawyers and judges become familiar with them. He believes this is particularly important at the court level.

“The courts, the judges – they probably need training. They’re probably being given that training so that they know what technology people are using, what can be done with it, and the limitations, so that when people are addressing things to them at an early part of litigation, they can make informed decisions.”

Allison Stanfield, executive officer of computer forensics company e.law Australia, says that when implementing new technologies, e.law offers a range of training and education programs for clients, and attempt to raise awareness about future technologies by visiting law firms and conducting continuing legal education seminars.

“We actually provide a lot of training and education,” she says. “We spend a lot of time in law firms doing continuing legal education. We also teach at universities, because I always say this ought to be taught at undergraduate level.”

Johnson predicts that while the legal profession is currently in a transition period, technology will soon infiltrate all aspects of litigation.

“There will be a transition period, working through the teething problems. I don’t know how long it will take, but it’ll work its way through. And probably in 10 years’ time people will look back and say ‘why was this ever contentious?’.”

6-Dec-2007

Related Tags

technology , courts

Related News

A reasonable person Wednesday, April 23, 2008
With less than a year until his retirement from the High Court of Australia, Justice Michael Kirby reflects on his experience on the bench and discusses the future of the nation’s superior court. He speaks to Michael Romei and Zoya Sheftalovich

Hold-up on changes to barristers rules Friday, April 18, 2008
PROPOSED CHANGES to the NSW Barristers’ Rules on cross-examination in sexual assault matters have hit a roadblock in the consultation phase.

What attracts top graduates? Tuesday, April 15, 2008
Competition is tough for the top university graduates every year. As the talent shortage continues to bite, organisations need to take a smarter approach to attracting and retaining such graduates. Sarah O’ Carroll speaks with two top graduates about what attracted them to their current employers

Judicial appointments debate reignited Tuesday, March 25, 2008
THE NEW South Wales opposition is calling for the establishment of a “judicial appointments commission” to improve the transparency of the state’s judicial appointments process.

Vic Supreme Court masters no more Tuesday, March 25, 2008
VICTORIAN SUPREME Court masters will now be known as “associate judges”, and will take a more prominent role in mediating cases under new legislation introduced by Victoria’s Deputy Premier and Attorney-General Rob Hulls.

E-NEWSLETTER

Browse Firms:

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

W

X

Y

Z

Browse News Topics:

A

B

C

D

E

F

G

H

I

J

K

L

M

N

O

P

Q

R

S

T

U

V

W

X

Y

Z

News | About Us | Privacy Policy | News Archive | RSS | Advertising | Contact Us | Add My Firm | Industry Links