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JILT 1997 (1) - Alistair Kelman (1)

The Reform of Document Management in Civil Procedure

Alistair Kelman
Barrister

1. Introduction
2. The World is Changing
3. Lawyers and Civil Disputes
4. Discovery
5. Rain of Paper
6. Enter the Network
7. The Answer's Technology
8. Technical Barriers
9. Legal Barriers
10. The Prospect
11. Feedback

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This is a Work in Progress article.

Date of Publication: 28 February 1997

Citation: Kelman A, 'The Reform of Document Management in Civil Procedure', Work in Progress, 1997 (1) The Journal of Information, Law and Technology (JILT). <http://elj.warwick.ac.uk/jilt/wip/97_1kelm/>. New citation as at 1/1/04: <http://www2.warwick.ac.uk/fac/soc/law/elj/jilt/1997_1/kelman1/>


1. Introduction

Here is our first premise: the world is changing and the legal profession and legal services are going to have to change to cope with it. Said like that it sounds bland and trite so let us put some content into the discussion. (Note: At the end of this page is an e-mail address for you to respond to us with your comments on what we are suggesting. A selection of your comments will be added on to this page in due course as we refine and develop the discussions.)

2. The World is changing through the disappearance of manual records and the use of networks:

Although documents produced today look similar to those produced twenty years ago most documents today come from computers. Copies are not kept on carbon paper but on disks and on tape backups. This change has meant that there are different risks associated with the maintenance of true records of events and with attaching the proper weighting to modern documentary evidence.

However the infrastructure of organisations producing documents has also changed. Consider for a moment a medium sized company. Twenty years ago it would produce letters on electric typewriters and keep carbon copies in filing cabinets. Today the medium sized company produces letters on computers linked together in a network. The local area network of one office may be linked to another local area network in another office many miles away. Information is held in databases which are replicated from location to location. Sometimes this replication is done over leased telephone lines or using dial-up services. But more frequently the systems use ISDN with increased speed and bandwidth. The cost of telecommunications has been falling and greater and greater use is made of these services.

3. How do lawyers handle civil disputes ?

In the initial stages of litigation very little has changed for over a hundred years - (see Walter Bagehot 'Bad Lawyers or Good' Fortnightly Review for January - June 1876)

Suppose a medium sized company in England called X got into a dispute with another company in England called Y. X decides that it needs to go to litigation and goes to see its lawyers, termed solicitors. It sets out the facts, producing copies of correspondence from its files. These documents would be copied for the solicitors who would advise upon them. The solicitors might decide that the matter required the views of another lawyer, a barrister or 'counsel', who would be able to give a more objective view of the likely prospects of success in the litigation and would be particularly familiar with drafting of claims and arguing of cases in court. Meetings would take place and potential witnesses would be identified and 'proofed' (a note taken of the evidence they would be likely to give if the matter came to trial).

If it were decided to proceed with litigation, then a barrister would be in structed to draft the Writ and Statement of Claim. These formal documents, called 'pleadings' would set out the facts alleged by Company X. The drafts would be approved, stamped by the court authorities (for a fee) and then served upon Company Y. The litigation process would then have commenced. Company Y would acknowledge receipt of the Writ and Statement of Claim and instruct its solicitors to defend the action. Company Y would produce copies of correspondence from its files for its solicitors, which would be photocopied. They would be advised on their likely prospects of success or whether the matter should be settled. Proofs of evidence from potential witnesses would be taken. If the case was not to be settled then a barrister would be instructed to settle the Defence, another 'pleading', which would be served upon the solicitors to Company X.

4. Discovery

There are a few more minor stages before the pleadings close and the case is set down for trial. It is then that a further process begins - discovery. Each party to the action (in this case each company) is required by law to produce a list of all relevant documents in their 'possession, power, custody or control'; relating to the issue in dispute between the parties. These lists of documents are exchanged. The lists are in two parts, one listing documents which are 'discoverable' and the other listing documents which exist but which the party claims is 'privileged'. A privileged document would be, for example, a copy of a legal Opinion which would set out the chances of success in the litigation.

Before photocopiers existed each party's solicitors would meet and go through the list of documents that the other had provided with the actual documents in front of them. One solicitor would say 'I would like a copy of these documents from your list'. The other solicitor would then employ a scribe who would hand copy the requested documents. The copies, and the bill for the wages of the scribe charged out at a standard rate, would be handed over. It was a practise within the profession that this bill had to be paid immediately between solicitors. Each client was thus presented with a bill for copying well before the case went to trial

The cost of preparing a large number of documents was considerable and this acted as a check upon a solicitor asking for too many documents - he only asked for those that he considered to be necessary for his case. Having looked at these copy documents he could ask for other documents on the list and these would be copied and supplied. Additionally as he looked at documents these might refer to other documents not included in the list. If a discoverable document referred to another document then, subject to privilege, this further document was discoverable and the solicitor could require the scribe to copy it.

5. The rain of paper

The arrival of the photocopier forty years ago caused a change in this practice. Instead of solicitors meeting, looking through the documents and saying which they wanted copied, each party simply photocopied all the discoverable documents on their list and sent them to the other side along with the bill for photocopying. Initially the cost of photocopying was still quite high and this practise took some time to be established as solicitors disputed bills. But by the late 1980's, with industrial photocopying at a penny a sheet, photocopying of documents in discovery proceedings had become a major revenue earner.

The unfortunate result of this practice was a vast increase in the number of documents in a case. Most of the documents were only marginally relevant - but the cost of photocopying marginally relevant documents was a lot lower than the cost of employing a professional litigation solicitor to review each document and decide whether it was worth photocopying or not. Yet the task of reviewing the relevance of documents always had to be done. It was pushed down the line into the courtroom. Simple cases developed mountains of documents. Barristers were required to review the documents in a case and produce small bundles of key documents. Sometimes the numbers of documents in the case became so large that it became impossible to try the case. Frequently the cost of reviewing all the documents in the case exceeded the value of the litigation.

6. Enter the network

At first the arrival of computers did not cause any major changes. A standalone computer was just a type of electronic filing cabinet. Special rules were created for the production of computer printouts to try and ensure that the computer was working properly and that false evidence was not presented. But as computers became linked up the question of what was 'discoverable' remained unanswered. The law said that all relevant documents in the 'possession, power, custody or control' of a party were discoverable. In theory this means that if there is a relevant document anywhere on a network which is within the 'power' or 'control' of the party to the litigation then it should be included in the list of discoverable documents and a copy supplied to the other party to the litigation if a request is made. But nobody has addressed this issue of networked workstations in reported litigation.

One reason for this has been that paper documents are still kept and filed. There has been a tendency to ignore the computer and look at the paper copies of everything rather than the electronic copies. While a company may have copies of all its outgoing documentation on its computer network the incoming documentation will come in paper form and not electronically. Paper bundles of relevant discoverable documents can be prepared by simply printing out the outgoing electronic documents, photocopying the original incoming documents and giving the other side this sheaf of paper. This fits into th e structure of conventional legal offices and the courts. But it does not address the problem.

Recently changes in procedural rules have led to a requirement for the exchange of witness statements in almost all civil litigation. This has caused another tier of paperwork handling to be inserted into the pre-trial process. Solicitors in large commercial cases hone and redraft their client's witness statements until they are in a form for exchange with the other side. The aim of this change in the rules was to reduce the time spent in court on the case by removing the need for examination of witnesses in chief. Coupled with the extra requirement for each party to submit skeleton arguments the new rules mean that within thirty minutes of the start of a civil case the first witness can be on the witness stand under cross-examination of his witness statement.

But while the procedural change may have shortened some trials it has had three unfortunate consequences. First the work required in production of witness statements for exchange has greatly increased the cost of litigation. The witness statement has to be cross-referenced to the documents in the case. This can lead to bundles and sub-bundles of extracts from the discovery documents being produced as exhibits to the witness statements - a multiplication of the papers. Second the refinement of witness statements into a form suitable for exchange can turn simple narratives into documents which a re nearly sophisticated pleadings. The solicitor will refine what each witness says happened - at all time trying to keep within the formal rules which stops the solicitor from inventing or slanting the evidence. Counsel may sometimes be asked to become involved in this activity. The preparation of witness statements is thus a very expensive activity. Third, witness statements reduce the effectiveness of cross-examination - the crucible in which the truth of a witness is tested. With the exchange of witness statements a witness is not taken through his personal recollection of events so that the court can observe his demeanour and attitude as he tells his story. He is instead given a copy of his witness statement, asked if it is true and then placed in the hands of the opposing advocate who will immediately cross-examine him on this carefully honed statement. This method of presentation can easily lead to false impressions. The advocate who has to cross-examine will not have seen the witness going though his evidence and will have to start his task 'cold'. If the witness keeps to his statement and this will have been skillfully drafted with all the dangerous issues removed, it may be very hard or impossible to establish that the witness is lying or is mistaken.

The rising cost of civil litigation in the United Kingdom is notorious. Lord Woolf's two year inquiry into the civil legal system (published on July 26th 1996) showed that legal costs generally exceeded the value of compensation awards when claims were less than £20,000. In one case cited, the legal costs came to £69,295 on a claim which was worth £2,000. But the solutions proposed by Lord Woolf may themselves add to the problems. He has suggested the imposition of procedural judges and time limits length of the court hearing. How this would work in practice is a difficult problem. If a witness knew that he only had to endure twenty minutes of stonewalling under cross-examination on his witness statement before the time was up for his opponent's advocate he might choose to stonewall. The present witness statement system works in favour of such an action with 'cold' witnesses. However if the witness feared unlimited and wide ranging cross-examination on his witness statement with an ever present threat of perjury proceedings (as is the current system), it may be thought that he would be more likely to tell the truth. Shortening trials by imposing time limits threatens the quality of justice.

7. 'The answer's technology, ... err what was the question ?'

(Statement made by Head of British Telecom e-mail systems in a noisy conference in 1978 when he could not hear the question posed to him.)

There could be an alternative to the rising cost of litigation which is predicated upon both parties using computers for the production of all their documents and a change in discovery rules. If each party exchanged the electronic copies of documents in their possession, power, custody or control and these copies were merged into a single file of Trial Documents then the analysis of relevance could be far simpler and cheaper. The paper originals held by both sides would only be relevant if there was a dispute regarding the accuracy of the electronic copy - a hand written note in a margin on the original or something similar. The exchange of copies of original paper documents only when these contain additions to or alterations from their electronic versions, could overcome this limitation.

Files of documents in electronic form can easily be sorted into date order - making the production of chronologies very easy. They can be searched on particular words and phrases, easing the production of schedules of statements and representations by each party. They are easy to transport and copy. They can be analysed in many different ways - one software copyright case turned upon the characteristic misspelling of particular words by the Defendant in writing his documentation, which was proved in court in an electronic copy of the discovery documents by means of a computerised search engine

Production of useful and fair witness statements pose different problems but these too can be addressed by the use of technology. The heart of the matter is confronting the witness with previously inconsistent statements. It is too easy for witnesses to escape effective confrontation because of the shuffling of papers and bundles in the courtroom. This can be overcome if all the witness' comments to any discoverable documents are attached as hidden annotations to the electronic version of the document. A witness can be asked about a document and it is presented to him without his comments being visible. After he has made his statement the annotations can be revealed. If there is any inconsistency between the statements this can be the subject of further cross examination.

8. The Technical Barriers

Electronic documents exist in a variety of file formats. Some companies have standardised on Microsoft Word and the entire suite of Microsoft Office products. Others use different word processors, spreadsheets and databases. If electronic discovery of documents is to occur then it has always been thought that there has to be a common interchange format which will not lose any information in the conversion.

Until recently the lack of interchange file formats appeared to be a major barrier to the development of electronic discovery. But now thanks to the growth of the Internet and the Microsoft's successful domination of the desktop market the barrier is no longer there. The latest word processors can identify and automatically convert most file formats without the loss of any information. Some of them do this transparently so the user does not even know that it is happening.

The problem of annotating documents with comments from witnesses is also one which the technology has overcome. Windows 95 now has OLE - Object Link Embedding. It is easy and quick to put an invisible note in a Microsoft Word 95 document. Similar features exist in Lotus Word Pro.

Interestingly there appear to be no additional costs for special software or hardware to do this work since the standard commercial suites of business software all contain features which can be used in this way.

9. The Legal Barriers

The first legal barrier in handling discovery in this way is the need for a change in the Practice Rules. The second would be the provision of up-to-date computer workstations for all judges and masters so that they could read and utilise electronic documents. The third barrier is the training of the judges and masters so that they can personally operate these systems. The fourth barrier is the rewiring of courtrooms so that computer workstations could be used to replace files of paper documents.

None of these changes are minor. But the viability of the proposal could be tested out by a pilot programme at relatively low cost. Some judges already have the necessary computers and would be keen to see if electronic discovery was a realistic alternative to the current paperchase. Some litigants could be attracted to the lower costs of discovery which would be enjoyed even by a pilot programme and there are enough computer literate members of both sides of the legal profession to be able to ensure that a pilot would be adequately manned by competent solicitors and barristers. The results of the pilot could then be considered by the judiciary and business users of the UK court system within a fairly short period.

10. The prospect

If electronic discovery was shown to be a viable alternative to conventional paper discovery, then a concerted attack could be made upon legal costs in litigation through the use of inter-active video conferencing. There would be a greatly reduced need for physical attendance of court hearings if the discovery documents were available on-line, More effective use could be made of court time and the time lawyers spent upon preparing and presenting cases would for the first time be auditable.

Additionally the development and deployment of Groupware within organisations could lead to the near automatic production of the lists of discoverable documents and the production of the same in indexed files. Lawyers would not need to physically attend and prepare discovery documents. Instead most of the work could be done through the granting of conditional read-only access to the relevant sub-set of the organisation's database of documents and the conversion of these by the lawyers into the appropriate parts of the Trial Bundles. If proofing of witnesses led to the reliance on any documents which were not in electronic form (eg pocket diary entries) these could be scanned in and converted to images within standard word processor documents with the contents either retyped or OCRed to ensure that the search would not miss the non-electronic document.

But there are also very significant consequences for the legal profession. The lawyer who is unable to personally operate a computer workstation, jumping through documents and annotations, running searches and preparing presentations based upon his findings will find no role in the brave new cost conscious world. Rhetorical flourishes are impossible to do at a keyboard. Advocacy is replaced by presentation skills. Many practitioners will not make the transition. But a legal profession which charges £69,295 in costs on a claim worth £2,000 cannot be allowed to rest on its laurels.

11. Feedback

Now its your turn. Please send your comments to me at Brickbats and bouquets welcome!

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