The Future Is Now: Global Litigation, Digital Workflows and Electronic Proceedings

Welcome to the new world of digital litigation, which is rapidly emerging in the context of an increasingly globalized world — a world where it is now commonplace for domestic law firms to extend their reach across international borders, engage in legal matters that span multiple jurisdictions, and collaborate with overseas colleagues and foreign counsel on a regular basis. Global litigation and cross-border collaboration are important accelerating trends that are imposing major changes on legal workflows and creating demand for new technologies that can manage those workflows more efficiently and at lower cost.

For the past 15 years or so, electronic discovery has been the focal point of legal technology as the profession has struggled to cope with exponential increases in the volume of electronically stored information, a flood of technological and legal issues associated with big data, and the rapid escalation of costs related to those efforts.

Now, as employers in nearly every segment of the economy — including the legal industry — embrace the concept of an always-connected, mobile workforce that conducts business across borders and time zones, a new category of legal technologies is emerging to address a range of activities across the litigation lifecycle that take place after, or in parallel with, e-discovery. These activities include proceedings in hearing rooms and courtrooms, as we have seen in the example above, but they also include a broad range of collaborative processes that take place internally within a firm or legal department, such as early case assessment, case analysis, case strategy, deposition prep, and transcript management.

Diverse Technical Challenges, a Single Integrated Solution

The logistical and technical challenges of managing a complex international dispute involving large multinational law firms — as well as parties and witnesses who are dispersed across the globe and speak different languages — can be considerable. In Miami, the presentation of evidence and other components of the legal argument, the interrogation of witnesses both in the hearing room and via remote connection, and real-time transcription and interpretation were all accessible in real time within a single platform and a single user interface. The technology made it possible for all participants in the hearing to perform their respective roles onsite or remotely without having to transition between tools.

Users were not required to install software on their machines. Instead, they simply navigated to a secure, Web-based log-in, where they could follow the proceedings, examine key documents and other media related to the case, access transcripts online as they were being produced, and confer privately with colleagues on tactics — whether or not they were actually present in the hearing room. Among other advantages, the technology dramatically reduced the need for participants to communicate with colleagues and clients by email or phone, and eliminated the security risks of emailing, copying and physically transporting sensitive files on devices like laptops, phones and flash drives.

Discrete tools that can help participants in a hearing or trial handle one or another of the technical challenges of complex multinational litigation have been around for some time now, but in this case a single, cloud-based platform was used to address these challenges within one seamlessly integrated package. The success of the Miami arbitration, particularly from a cost and efficiency perspective, proved that the concept of “pop-up” cloud infrastructure to digitize proceedings is viable, and the details of this setup — including cost-sharing among the parties to a case — are now being pursued in other U.S. jurisdictions.

Shared Cloud Infrastructure: An Emerging Trend

The use of shared cloud infrastructure for digital hearings and trials is actually part of a global trend. In the UK, the government is in the process of executing an ambitious plan to modernize its entire criminal justice system with the objective of reducing costs and dramatically increasing the efficiency of proceedings in court. An initiative to digitize courtrooms is part of the plan. A famously large, complex, multi-language international commercial dispute got the ball rolling in 2011 when the presiding judge, Elizabeth Gloster, mandated that all parties share use and costs of a cloud-based electronic trial bundle service which digitized more than 100,000 documents and ended up saving an estimated 5 million sheets of paper while speeding up proceedings dramatically.

Now, lawyers in the UK are using the same technology platform piloted in that ground-breaking trial to streamline the process of preparing for major litigation. They use the software to digitize, organize and annotate key evidence, streamline internal communications between dispersed legal team members, collaborate during expert review and early stage motions, and map the resulting work product to the trial bundle. In fact, the platform is now routinely used a year or more before proceedings in parallel with an e-disclosure platform. The most germane evidence and work product are selected for transition to the bundle in the final weeks preceding trial, documents are paginated and the bundle is repurposed and organized for optimal ease of reference during proceedings.

In Singapore, one of the most technologically-advanced legal jurisdictions in the world, recent high-profile cases tried in that country's Supreme Court used the same technology that powered the Miami hearing — in one case saving around $40,000 just in printing costs. This provided a powerful proof-of-concept that is now being applied in other legal matters in the country, including hearings held at the country's state-of-the-art dispute resolution facilities that serve the entire APAC region.

Lessons from e-Discovery

The fact that parties in these examples have agreed to share the costs associated with implementing the technology is an important part of this new trend. Think back to the early days of e-discovery. Litigators, their clients, and the courts suddenly found themselves dealing with a host of thorny technical and legal issues related to the identification, preservation, collection, processing and review of massive amounts of data before final production and presentation. The discovery process became a minefield, as contentious and expensive legal battles erupted over the scope of demands and vexing technology-related details like file types, metadata, production formats, collection, processing protocols, and so on. The core legal issues underlying matters were sometimes overshadowed by drawn-out discovery disputes. It was not unusual for litigators to deploy disproportionately broad demands for potential electronic evidence as a tactic to force opponents into a settlement.

Over time, however, the profession edged toward a consensus as a more cooperative stance with regard to discovery was collectively embraced. They revised rules that mandated pre-trial “meet-and-confer” sessions whose explicit objective was to facilitate agreement on technical protocols and parameters. Other measures were adopted to ensure that discovery requests are proportional to the value of the matter at hand and the costs of e-discovery are kept at a reasonable level.

In the current context of an increasingly globalized litigation environment, it's clear that encouraging cooperation on the technology front and sharing costs benefits all stakeholders. For trials and hearings, the main requirement is relatively simple: a neutral platform that provides all parties with convenient access to a virtual workspace providing digitized versions of all the key documents, audio, video, exhibits, transcriptions, translations, etc., that comprise the documentation that goes into a modern trial or hearing.

The other requirement is that each legal party be provided with its own private, secure workspace — within the same platform and user interface — that not only contains the totality of these shared materials, but also allows legal teams to produce and store their own work product, and collaborate efficiently using tools designed specifically for legal casework. In this private workspace, litigators can perform every task necessary to prepare and execute a winning legal strategy: edit and annotate documents, create custom tags and folders, hyperlink related materials, hold impromptu discussions about key documents and tactical options, build and present timelines and skeleton arguments, and so on.

Lawyers in the UK have already demonstrated that using cloud-based collaboration technology in the weeks and months leading up to a trial or hearing creates all sorts of efficiencies in their normal legal workflows. When that same technology is deployed for conducting proceedings, yet another technical hurdle is eliminated and the transition to trial or hearing can be, quite literally, seamless.

The emerging model of shared-infrastructure paperless hearings and trials is a sign that the profession has learned something in the aftermath of e-discovery debacles and the collective agonizing over escalating data volumes, costs and complexity. Adopting a cooperative mindset when it comes to technology does not have to undermine the essential adversarial nature of legal disputes. Instead, it allows lawyers to focus their attention and energy on substantive legal issues and strategy — and it makes the litigation process faster, more efficient and less expensive for law firms and their clients. That's something to celebrate.

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Charlie Harrel is the Deputy Managing Director at Opus 2 Magnum. Prior to joining Opus 2 in 2013, Charlie consulted leading law firms, in-house legal teams and independent service providers on using new technologies to drive commercial efficiency and improve client service.