Based on survey results from the 2004-2005 Legal Technology Survey Report, this article provides an in depth look into how law firms and the courts are both adopting and utilizing technology including: Online Research, Electronic filing, Mobile Technology in the Courtroom, Courtroom Hardware, Litigation Support Software, and Electronic Discovery. This article first appeared in LJN's Legal Tech Newsletter, Volume 23, Number 10, January 2006

By Catherine Sanders Reach

Litigation and trial practice is an area ripe for the benefits of technology. Over the past few years the adoption of technologies by firms both large and small has increased, but rarely exponentially. With a few minor exceptions tried and true technologies prevail, while newer, more expensive technologies are approached cautiously. The courts on the whole, with limited budgets and resources, are not making strides toward bringing in hardware to match the dream of projects such as Courtroom 21.

However, lawyers are becoming more savvy and more competitive with their use of presentation technologies to get their message across to the judge and jury. The pervasive logic is that both courts and attorneys adopt technologies that make sense. In July 2005 the American Bar Association’s Legal Technology Resource Center completed its annual technology survey, published in five parts. The Litigation and Courtroom Technology volume shows increasing adoption of litigation-specific technologies in use, while the availability of technologies in the courtroom made little headway. Lawyers are taking matters into their own hands, and bringing in technologies that they hope help win the case. As today’s jury pool gets increasingly younger, and jurors are accustomed to a multimedia barrage in their daily lives, attorneys must learn to present evidence and information in ways that appeal to as many senses as possible without overwhelming. A tough challenge to be sure, and one that attorneys will increasingly face in the courtroom.

The courts have adopted electronic filing rapidly because the benefit to the court and the practitioner is immediate and obvious. That is not to say that the concept and implementation of electronic filing was a rapid transition, but the benefits were apparent to all involved. Similarly, litigation support software enjoys a home in many law firms. The most perplexing is the state of electronic discovery. Although the topic seems to enthusiastically discussed for several years, until the Federal Rules amendments and the fear of the unknown are resolved the actual pervasiveness of electronic discovery will remain low.

BUDGET AND STRATEGIC PLANNING

How are law firms fitting technology into their planning and budgeting? Are they planning for technology to give them a competitive edge in the marketplace? While 61% reported that their firm did not have a multi-year strategic technology plan, firms with over 100 or more attorneys reversed that number with 58% reporting that their firm did have a multi-year strategic technology plan (see Table 1). This trend is again reflected when questioned about the existence of a technology committee and a multi-year technology budget. However, firms of any size would benefit from the exercise of seeing how technology fits into the firm’s strategic plan, or creating a technology committee to make suggestions on technology to adopt. Today there are technologies to meet the needs of all firms sizes and budgets. Creating a plan, watching the trends, and budgeting for technology will increase the effective use of litigation support, electronic discovery, and trial presentation technologies to present a winning argument.

ONLINE RESEARCH

Litigators rely on competent and comprehensive research to make their points and construct arguments. From the Online Research volume of the survey we see a trend towards use of online resources for primary law research. Ninety-one percent of respondents asserted that they performed legal research online, starting that research with fee-based online resources (45%), legal specific search engines (28%) or general search engines (22%) (see Table 2). The format used most often by respondents for federal case law was online fee-based (55%), followed by online free resources (16%), with print (13%) in third place. This trend continued with federal statutes and regulatory research, as well as state case law, statutes, and regulations. Research using secondary resources is the only type of research in which print is the most oft used format, with 45% specifying print versus 30% using fee-based online resources. As more secondary resources appear online, and publishers perfect pricing, format, and ease-of use, it is likely that most legal research will be performed online with preference to fee-based resources that provide value-added materials. This widespread use of online legal research, and the enhancements offered by the vendors, creates new opportunities for the courtroom. The ability to create electronic briefs, linking directly into the full opinion or statute via Westlaw or LexisNexis, will reduce wasted paper both in court and in the office. Judges have started accepting e-briefs, using duel monitors or extra large flat-screen monitors for reading comprehension from the screen. Cost savings for ink, paper, and space, in addition to ease of storage and accessibility, make this trend a positive one.

ELECTRONIC FILING

While there has been little change in technologies such as light pens, touch screens, and integrated lectern/evidence presentation units made available by the courts for attorneys, electronic filing has seen a sizable increase. While less than one-quarter of the survey respondents (23%) had filed court documents electronically in the 2003 survey, the 2004-05 survey indicates that almost half (46%) have filed court documents electronically (see Table 3). In the federal courts, all of the bankruptcy and district courts are either using or implementing e-filing. The appellate courts are nearly all in the implementation stage. Over 13 state courts systems have adopted e-filing. Attorneys are filing by either sending documents via e-mail attachment (58%) or uploading documents at a Web site (62%). The most popular types of documents filed electronically were motions (79%), pleadings (74%), appearances (45%), and discovery documents (30%). Users of the e-filing systems were either very satisfied (44%) or somewhat satisfied (45%) with the experience.

MOBILE TECHNOLOGY IN THE COURTROOM

Respondents who use a notebook computer in the courtroom primarily use litigation support (22%) and presentation software (22%). Other activities include connecting to the court’s audio/video system (11%) and calendaring (12%). While few are checking e-mail (5%), sending e-mail (5%), or accessing the Internet (4%), those who are communicate primarily with the office (9%). Handheld devices are mostly used for calendaring (30%) and sending (12%) or receiving (13%) e-mail. Court policies vary on allowing cell phones inside the courtroom, with special intolerance for phones with cameras. This makes the use of smartphones in the courtroom necessarily difficult.

COURTROOM HARDWARE

There was little to no change in the availability of courtroom hardware from the previous survey. Color video printers, light pens, telestrators, and touch screens were available to less than 10% of the attorneys surveyed. However, in each case, roughly 30% of respondents admitted that they did not know whether or not the device in question was available. Much more readily available were familiar devices like analog audiotape players (35%), closed-circuit television (31%), CRTmonitors (25%), overhead projectors (56%), televisions (65%), and VCR’s (69%) (see Table 4). Technically sophisticated devices such as plasma monitors and electronic whiteboards were only available to 3% and 12%, respectively. The most readily available evidence presentation devices were a laptop equipped with presentation software (16%) and integrated lectern/evidence presentation units (16%). On the other hand, the availability of bar code readers (8%) and evidence cameras (11%) was limited. For transcription hardware, 19% of attorneys reported the presence of real-time reporting equipment capable of delivering a transcript to their personal notebook or laptop, and another 15% of respondents said that real-time reporting equipment that could deliver a transcript to a court monitor was also present.

LITIGATION SUPPORT SOFTWARE

Firms are embracing litigation support software, with almost half (49%) reporting availability. Over half of the respondents asserted that they either regularly (30%) or occasionally (24%) used the software. As expected, solos far surpassed regular personal use of litigation support software (68%), compared with personal use by lawyers with 100 or more attorneys (18%). Lawyers in large firms were more likely to have support staff with specialized litigation training use the software regularly (50%) or occasionally (23%). (see Table 5). Litigation support software features that were deemed very important included transcript and document management (64%), document imaging (56%), access to evidence (54%), and trial presentation functionality (42%). The desired features were similar across all firm sizes. Bar code scanning (43%) and real-time transcription tools (29%) were ranked not at all important. Common tasks accomplished with litigation support software include searching for documents (82%), scanning in documents (64%), and coding/filing documents (43%). What motivates a firm to purchase a litigation support software package, as opposed to building a database with commonly available business software? Respondents identified motivating factors very likely to prompt the purchase of litigation support software to be cases with a large volume of documents/transcripts (38%), a client’s request (36%), and well-funded (30%) or high profile cases (26%). Interestingly, opponent’s use of litigation support software was not very likely (39%) or not at all likely (31%) to motivate the purchase of the software; nor was a personal interest in technology (34% not at all likely), even in solo firms (37% not at all likely).

ELECTRONIC DISCOVERY

Consistent with last year, a great majority of the survey respondents had never received an electronic discovery request (73%) (see Table 6), with little to no difference displayed in the responses of large firms (63%). Of those who had processed requests, firms seldom used Web-based electronic discovery tools (12%), regularly (10%) or occasionally (10%) used electronic discovery software, seldom used electronic discovery consultants (12%), and occasionally use litigation support software (21%). When asked to report on how often they made electronic discovery requests, 75% responded with a resounding “never.” For those who had made such request the pervasive method was in-house (80%), followed by electronic discovery consultant (13%). The figures seem surprisingly low, but electronic discovery advocates quote that electronic discovery is used in perhaps 1% to 2% of all cases. The confounding fact is that electronic discovery has been one of the hottest topics in law for quite a few years, among legal technology pundits at least. The amendments to the Federal Rules of Civil Procedure, specifically addressing electronic discovery are slated to be adopted on Dec. 1, 2006, pending Supreme Court and Congressional review. Will these amendments spark the wholesale adoption of electronic discovery as a regular part of the discovery process? Attorneys must be aware that in the business world nearly all records and much correspondence are electronic. To ignore the preponderance of electronic data, to not request documents in native format to make use of metadata, or not to learn about the nuances of electronic discovery is a dangerous practice. It will not be long before every case, from patents to family law, will need to consider the electronic data to provide zealous representation on behalf of the client.

CONCLUSION

Online legal research, electronic filing, litigation support software, and mobile technology in the courtroom have seen moderate growth over the last year. Electronic discovery continues to stagnate. Courts have not made huge increases in the amount of hardware made available to attorneys in the courtroom. Technology brings great change to the legal world and both makes the practice of law more complex and more robust. Firms and courts are slowly learning which technologies make sense by saving time and money or providing a benefit such as multimedia court presentations that was beyond their grasp only a few years ago. Law firms should assess technology in terms of long-term goals and objectives. A proactive stance in technology planning and adoption will help the firm succeed in court and with clients.

* Mention of a company, product, or service does not indicate endorsement or support by the American Bar Association or the author.