The Lovells’ response (Legal IT, March) to ‘Lightening Litigation’ — originally published in Legal IT’s November/December 2002 issue — provides an excellent summary of the many advances in the UK courts and the availability of case and discovery management applications in the UK market. The response begs the questions: what was the original thesis of Lightening Litigation, is it available and why are UK firms trying commercial litigation matters not using more of this technology?

In a recent Infotech article titled Firms Fail to Offer Full IT Benefits to Clients, published on 19 September, 2002, the company reported on a polling of general counsel at Ftse 100 companies by Legal Director magazine, in association with Oyez (a litigation technology vendor in London). The poll found that less than half of their complex litigation matters were outside law firms recommending the use of discovery/case management technology for their cases.

Only 22% of those polled had been recommended cost-cutting technology by law firms. Notwithstanding the embrace by UK courts for litigation technology in the presentation of cases and the fact that discovery/case management applications are available in the market, litigation technology is not being used in the majority of cases. This is especially true in standard commercial litigation matters, where it is needed the most because of the vast amount of documents typically involved. This is not surprising, though, as lawyers are, by their very nature, creatures of habit.

Its limited use by law firms in standard commercial matters (where the most volume of fees originate) causes vendors in the UK to resist substantial investment in the market (simple supply and demand). By outsourcing discovery management expertise to the US, Australia or any other international market, the cost to UK firms is increased, while considerable delay and insecurity results in processing large volumes of documents.

Furthermore, software products and services are not specifically adapted by vendors to the needs of the UK market. It would be nice to see this change, as it would translate into better UK-based litigation technology services and, in turn, better services to the clients. If you build it, they will come.

By instituting law firm policies that both promote and make available the use of litigation technology in everyday practice, litigators in the UK will be more aware of and able to offer these value-added services to their clients. Vendors and software companies alike will be forced to make more investment in the UK market to support law firms on an everyday basis. The larger international firms located in the UK are well under way in this process, creating in-house litigation technology departments and borrowing from the expertise in other markets to meet the increasing needs in the UK.

For example, Lovells’ response correctly points out that the UK courts hearing select criminal and fraud cases are adapted for the use of case presentation software at trial. As stated in Lightening Litigation, the court service reported a 20% time saving by employing this technology in a criminal case. Most commercial litigation matters, however, involve many more documents than criminal cases and would typically enjoy even greater time savings by employing the use of case presentation software.

This time saving occurs regardless of whether the matter is tried to jury, judge, arbitrator or other tribunal. So why are the majority of lawyers not requesting the use of this technology in trial and arbitration? Technology-based case presentation should be the rule — not the exception (as outlined in Lovells’ article) — and the only way to make it so is to begin with the lawyers.

Courts around the globe and in the UK have to be selective about which courtrooms and trials should receive funding to outfit a particular case for litigation technology. Accordingly, it makes sense that the budget for this technology would first be aimed at criminal matters, where society accepts a financial burden to ensure a proper trial. It is up to the lawyers, then, to offer the funding, expertise and equipment to present their commercial cases using technology.

Working hand-in-hand with the court and adversary, clients will see an economy of scale through the broader use of litigation technology. The process in other countries, such as the US, involves making a motion to the court for permission to use the technology, ensuring that it is made equally available to both sides — contrary to Lovells’ suggestion. Litigants in the US are typically required to offer the technology to each other in fairness, a practice that is followed by Bryan Cave’s London office in international arbitrations. Amazingly, fear and ignorance often prevent the adversary from taking advantage of the technology. However, the fairness element is very much a part of US practice, as is arranging for permission to set up the technology in the court.

In order to take this self-initiative, law firms will require in-house expertise on the set-up and operation of this technology so that they can use it for the trial and also outfit the court with the required equipment. Typical courtroom set-ups require a projector, screen, computers and monitors positioned throughout the courtroom. Some law firms lease this, while others make capital investments and purchase it. The average cost is $10,000 (£6,386) per trial, which is a small price to pay for a 20% drop in trial time. Moreover, it is totally portable, so it can be used in most, if not all, courtrooms. It should not, therefore, be the burden of the UK courts to fund and make this technology available for the trial of commercial litigation matters.

On the case/discovery management side, law firms should consider the use of a single, permanent solution — whether provided by an outside service (ASP) or deployed internally. There are plenty of case/discovery management services available online, but if they are only used for particular cases by certain lawyers, there is no uniformity in the law firm’s approach and each client may end up bearing the brunt of the learning curve. For ASP vendors, the monthly fee is typically passed to the client at a whopping $2,000 (£1,227) per month (average) for each case, especially because each service is different in one way or the other. Again, by selecting one solution to provide the ASP service and promoting the technology through internal training and actual day-to-day use, law firms will be more frequent and efficient in offering these services to the client.

The bottom line is action not words. Firms in the UK that adopt and promote a coherent and well thought out plan for the implementation of litigation technology will flourish. By doing so, these firms will also become the impetus of litigation technology being used in commercial litigation matters — not just criminal and fraud matters. This will result in more vendors coming to market to support the UK’s needs. It all starts with us.

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Matthew Browndorf is an associate in the New York office of Bryan Cave.