Laptop Litigation:
The impact of technology on litigation

Unless litigators insist upon and courts develop a systematic and effective set of rules to deal with the realities of litigation in the information age, developments in electronic litigation may warp our justice system.

By Michael K. McChrystal, William C. Gleisner III & Michael J. Kuborn

ike any powerful tool electronic litigation can be used wisely or harmfully. We lawyers should be careful to assure that litigating with electronic tools does not compromise our justice system. Electronic litigation techniques can cloud and even distort the litigation process. For example, electronic evidence may be published to a jury while opposing counsel overlooks obvious objections or the court fails to consider the unfair impact of that evidence upon a jury. The authors believe crucial evidentiary and procedural issues currently go unaddressed both before and at trial.

This is the first in a series of articles dealing with the impact of technology on litigation. Future articles will discuss more discrete issues related to the broad topic of litigation technology. Meanwhile, this article surveys the various ways in which technology is being used to prepare for and litigate a case, and includes an overview of various hardware and software systems.

Technological changes are affecting the legal profession far more than the changes that brought about notice pleading and the amendments to the codes of state and federal civil procedure in the 1960s and 1970s. However, to date, no effort has been made to address in any comprehensive manner the dramatic technological changes that are occurring in the world of litigation, and this is cause for real concern. Rules have been developed to respond to the videotaped deposition, and there are a patchwork of new rules that address fax transmissions, electronic filings, and the like. Nevertheless, there is no comprehensive effort underway to assess the overall impact of electronic litigation techniques on civil procedure and the rules of evidence. The time has come for bar associations and court systems to begin a serious and comprehensive assessment of electronic litigation leading to the adoption of appropriate rule changes.

A Sea Change is at Hand

There are many reasons why electronic litigation will be a force with which to reckon. For example, the standards by which competent advocacy is measured in the information age already are evolving to reflect the impact of information technology. Ethics opinions and court decisions suggest the broad outlines of the new standards. As noted in a leading publication on legal ethics:

"[A]dvances in technology are relevant to what constitutes [lawyer] negligence and [a] defendant's failure to use available technology to reduce a known risk could be considered negligence."¹

There is a proliferation of superior online legal resources.² It will not be long before the failure to research the law online or check the Internet for relevant information could be deemed professionally substandard conduct.³ A number of court systems already are experimenting with the electronic filing of pleadings, documents, and briefs.⁴ Computers and the Internet will have an impact on issues as diverse as jurisdiction,⁵lawyer confidentiality,⁶Fourth Amendment searches and seizures,⁷ and the ethical responsibilities of practicing law.⁸ Undoubtedly email will become as accepted as faxes or "snail mail" for routine confirming letters or service of pleadings, briefs, and so on between opposing counsel.

Features of Electronic Litigation

Some aspects of electronic litigation already have received substantial attention. For instance, it is becoming easy to find guidance as to the framing of interrogatories so as to ensure that proper requests have been made for electronically stored data.⁹ Moreover, courts themselves are rapidly discovering the advantages of electronic document database and transcript management, electronic filings, and electronic evidence. Litigators who choose not to use technology in their practice may find that both they and their clients pay an increasingly unacceptable price. As one commentator recently remarked:

"That an adversary is unable to produce its own briefs in counterpart electronic format [that is, on a CD-ROM] is no different a condition of litigation than any other disparity in access to legal resources. After all, not every law firm uses online legal research services, or has state-of-the-art desktop publishing capabilities, or employs a stable of bright and eager young associates. Litigation in an adversary system is not a matter of maintaining the lowest common denominator between adversaries, but rather it is a competitive striving to marshal winning combinations of resources of all types and to package them in attractive ways for the relevant tribunal."¹⁰

As usual, Wisconsin courts are beginning to show the way. The Wisconsin Supreme Court maintains a robust Web site, which is in fact a Web site for the entire Wisconsin court system.¹⁵ It appears clear from the Report on the Circuit Court Automation Program, accessible from that site, that it is just a matter of time before Wisconsin courts begin experimenting with electronic filings. This Web site makes it possible for users to download several free software enhancements, such as Adobe's Acrobat Reader.^TM

One of the courts in Wisconsin is already a leading pioneer in electronic litigation. The U.S. District Court for the Western District's Web page is very instructive in this regard.¹⁶ At that court's site you can learn all about "PACER," which permits public access to a variety of court documents. According to that site, "If you have a personal computer, a modem and a telephone line you can access Bankruptcy and District Court docket sheets, party indexes, and judgment indexes. Just call the P.A.C.E.R. service center at (800) 676-6856 for details."¹⁷ Moreover, in that court's courtrooms 250 and 260, counsel can:

• place a piece of evidence in a single location in the courtroom. An image of that piece of evidence is displayed on monitors for counsel, court, witness, and the jury to see. All people in the courtroom are looking at the exhibit from the same perspective.

• selectively display the exhibit to any or all of the people listed above.

• scan documents, store them on a personal computer (including Macintosh), and call them up with a few keystrokes.

• ask witnesses to annotate an exhibit, retain the original without annotations, keep a copy with the annotations, and do all this without managing multiple photocopies or leaving the courtroom.

• play videotapes without renting VCRs and TVs. The participants can watch the videotape over the same monitors on which they view exhibits.

• freeze a videotape frame and annotate the video.

• run computer animated accident reenactments right from your computer;

• enhance the jury's understanding of a recorded conversation by using a computer to link a transcript of the conversation with the audio recording; and

• use presentation software to enhance your arguments.¹⁸

The advantages of briefs filed on CD-ROM (or, in the near future, on DVD disks) also will make them very popular with many judges. Electronic briefs can include full-text hyperlinked copies of cited authority or links to copies of authorities on the World Wide Web, together with hyperlinks to copies of evidence and even excerpts from videotape depositions.¹⁹Such filings hold the potential of significantly reducing a judge's workload by freeing the judge from doing legal research or combing through the record. Such briefs also enable the judge to write opinions with many citations to and quotes from authorities that can be accessed directly from the CD.

This is powerful evidence indeed of what litigation at the turn of the millennium will entail in Wisconsin and elsewhere. However, do we have the rules in place to accommodate both the new technology and the demands of justice?

The Need for New Regulations

Legal standards have not yet come to terms with electronic litigation. For example, pretrial scheduling and management orders often fail to address the serious disruption that can follow from the misuse of technology in the courtroom. These failures often are surprising considering how often lawyers now come to trial equipped with a laptop computer and a color projector.

High-tech litigation used to mean that a lawyer might come to court equipped with monitors, overhead projectors, or Doar projectors.²⁰Now litigators are relying upon far different and often more sophisticated solutions for presenting their cases to a jury. A favorite hardware combination includes Dell laptops, Infocus color projectors, and barcode guns. Software such as Dataflight's Concordance,® and its image viewer Opticon,® represent one of the more advanced systems now available.²¹ Other equally fine litigation software solutions include Bowne JFS Software (formerly J. Feuerstein Litigator's Notebook),®²² Gravity,®²³ Isys,®²⁴Inmagic's DB/Text Works,®²⁵ and Discovery Pro for Windows.®²⁶ Another popular and effective software solution for many litigators is Summation®²⁷and one of its more popular image viewers TrialDirector.®²⁸

Just as one example, using Summation,® a litigator can import literally millions of pages of evidence and hundreds of transcripts into an online database. The litigator can then search through the evidence and the transcripts and comprehensively index, cross reference, and retrieve all forms of evidence almost instantaneously. A litigator can use a laptop with a barcode gun and a color projector to call up evidence and display it virtually at will using Indata's TrialDirector.® The relative cost of doing this is well within the reach of many practitioners.

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