How the Effective Application of Technology Can Save Money and Help Win Cases

Prepared and Presented by:

Michael J. Glick, Esq. Encore Legal Solutions

Paralegal│Resource

How The Effective Application of Technology Can Save Money and Help Win Cases People say that we live in a litigious society. There is some truth to that. Litigation often comes unexpectedly, is costly, messy and the outcome isn’t always predictable. But as business concerns, we strive to understand our costs and factor them into comprehensive models to assure profits. The role of in-house counsel has grown in recent years in an effort to become more proactive in limiting exposure and controlling the costs which can threaten profits. Much of this effort is focused on managing outside counsel to improve adherence to case budgets. However, there has been a reluctance to provide the tools to the outside counsel that can truly enhance efficiency, particularly within the area of discovery. This article will provide an understanding of how new tools and procedures can help to make the litigation process more efficient. Perhaps even more importantly, we show how these tools will provide a better understanding of potential liability earlier on to enable better decision making, more predictability and even help promote economies of scale in the ongoing battle to contain legal costs. One of the areas of largest expense is discovery: the identification, acquisition, management and analysis of evidence. Today, evidence takes many forms: paper, electronic files, different media, as well as testimony and a panoply of case specific formats. As the volume of this evidence grows it becomes more difficult and expensive to manage. But new technology has equipped the legal practitioner with tools to organize, understand and access large collections of evidence in meaningful ways that help achieve the client’s desired results. There are at least two persuasive reasons to implement technology in a litigation practice: Resource Savings and Knowledge Base development. The need to employ technological tools to manage evidence is critically important with electronic evidence because of its inherent volume. However, the same economies and logic apply to paper borne matters and even cases where the evidence may amount to only a few boxes of documents. To elucidate a fundamental understanding of the subject area, our discussion will begin with the transformation of boxes of paper since they are more familiar, and importantly, as “paperless” as we strive to become, we will never shed the parchment completely. As a first step, let’s define the terms. When a document is scanned it becomes an “image” which is like a photograph of each page of the document. It can be seen, printed, annotated, redacted, electronically numbered, etc. but is can not be searched for content. Operations can be performed on the image to develop information about it which can be searched, sorted and utilized in many ways. The simplest of these operations is called Optical Character Recognition (“OCR”). OCR converts the picture of the document into searchable text and provides the basis of full text searching. The process is enabled by the speed of modern computers and works by comparing the shapes which form the letters on the page with the shapes of letters stored in the conversion program – like fitting a round peg in a round hole and calling it an “O.” The ability to full text search the documents adds a lot of flexibility in the type and nature of the search analysis, but is not sufficient in itself to fully utilize and electronic document management system in legal practice. There are a number of reasons for this. First, the quality of the OCR output is dependent on the quality of the documents which are processed. Most

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matters contain at least some documents which are generations old photocopies, faded originals, copies of facsimiles, often with vertical lines running through them as well as mark-ups, marginalia and other cursive content. In other words, not everything on the document will convert to text. And some of what does convert, will contain errors. In order to assure that the essential information is available from each document, an additional operation, where skilled people extract key information from each document and enter it into a Database – our other key term – is performed. The database is the search engine which finds information entered into specific fields for each document. A powerful database, such as Concordance, can search for information in combinations of ways, such as all documents that contain the term “subsidence” and also Mr. Smith and even within certain date ranges. Searches for words in proximity to other words and/or on the condition that a value is present in another field can help to find that “needle in the haystack.” One of the fields in the database is the OCR field. Others provide information about the date, author, etc. The database is linked to the images so that after the search is run, the found documents can be read, printed or annotated without having to locate paper in boxes in case rooms elsewhere in the firm, or in someone’s briefcase, unavailable when needed. Attorney productivity is greatly enhanced when that supporting document one knows she’s seen is readily accessible from the same computer on which she is crafting her motion. There are also core categories of information which are extremely helpful to legal practice that OCR alone can not capture, such as Date and Document Type. These two fields, by themselves, can often justify the investment in database creation. By adding a Date field the documents can be almost instantly chronologized. This can be done for the whole document collection, or for subsets of documents which are identified for a particular purpose. By putting the documents into chronological order, they tell the story better. When this process is done manually by skilled personnel, we find that they can chronologize about 300 documents per hour. When multiplied by billing rates, one can see how quickly the investment in a database can be returned. Perhaps more importantly, that utility also frees the skilled personnel to perform higher value tasks that must involve people. Similarly, a Document Type field enables sorting documents into categories which make sense for a case. The ability to identify and break off groups of documents, such as all correspondence, or reliance materials for experts can serve many important purposes. Identifying each instance of these documents, which tend to be scattered throughout document collections can be expensive. A database can sort them out almost instantly. Once identified, the subset can be burned to a CD, printed or indexed as a group for future reference. There may be other groups, like phone logs, change orders, attorney bills, etc. that can be identified and sorted into collections en masse by the database. These groups are then readily available for separate examination. The places in the database where data is populated are called “fields,” of which Date and Document Type are two. Other fields commonly used in litigation databases are Author, Recipient, Copyee’s and their organizations. Document Title (subject or Re line) is also very helpful. We recommend additional fields for whether a document contains marginalia, or about its particular

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characteristics and also for the names which are contained in the text of the documents. The aforementioned fields are all Objective in nature. Thus, the expense of extracting the objective information is often lower when performed by companies specializing legal document coding. But there are also many fields that are Subjective and need to be determined by skilled legal professionals, such as the Issues that a particular document may speak to, or a document’s probative value, which can be represented by a positive or negative number. Other subjective data may fall into review categories, such as privileged, non-responsive, segregate for redaction prior to production and so forth. Thus, a database is a living document that becomes a Knowledge Base for the information contained in the evidence, as well as the impressions, judgments and decisions that are made about each document. Properly designed, a database can even track the history of each person who made decisions about a document, track metrics on how productive different reviewers performed and other useful information about staff performance for firm leaders. The above was meant to introduce the reader to the area and define terms. But to bring the concepts into focus, we will provide some examples which contrast the traditional approach with an electronic document management system. For instance, the production of documents to opposing counsel almost always demands significant resource allocation. Working from the original paper provided by the client, a best practices first step is to make a photocopy and preserve the “originals” in their pristine condition. Then reviewers read through the documents, sorting them into categories, making notes on legal pads and postit notes. Some documents undergo redaction and then reintegration into the production set. Others are set aside as privileged or non-responsive. Sometimes colored postit flags are applied to signify “Hot Doc” or indicate some level of confidentiality. There are many other steps and variations on the procedure, but ultimately, the body of documents to be produced are defined, sequentially numbered and copied again for production to opposing counsel. The documents withheld on the basis of privilege are indexed to create the privilege log – a manual, time consuming process. Often an additional copy is made as a working set. Generally, an index is created listing each document’s Bates ranges, date and description. Notes taken during the review process may be entered into the index. Now with new technology the entire process becomes streamlined. More importantly, every document decision will become part of the permanent record. For ease of the relevance review, the database can be set up with check boxes for each review category, such as Produce, Responsive, Privileged, and so on – a mirror to whichever categories one would utilize under the traditional approach. Additional check boxes can be set up for the Issues that each document may be relevant for, or other useful categories such as Hot Doc, Confidential or so forth. Other categories can be pre-determined or created on the fly as the reviewers go along. The review process can then go forward and decisions made about each document in much the same way as under a paper based review. Notations made about a document’s usefulness or potential harm can be noted in a number of ways. A ranking system can be used whereby each document is rated on a plus or minus scale. Then when issue coded, one can easily determine how much evidence has been discovered on each issue, its probative value and

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usefulness to one’s case. Similarly, the importance of margin notes can be recorded and later searched. In short, all of the postit note flagging and legal pad notations we normally use to record our judgments during the review process become part of and add to our knowledge about the evidence. The operation is simple – the reviewers simply mouse click the check boxes to record their relevance judgment. Once completed, the production is very easy: All of the documents that were tagged “produce” can be electronically Bates numbered in minutes. The production Bates numbers are automatically recorded in the permanent record. If the same core “document universe” is being used for multiple matters, the Knowledge Base holds the information on each document, its production status for each case and each Bates number under which it was produced. Documents that have been identified for redaction, are easily segregated by the database and the unwanted text removed by simple click and drag features, automatically excising and replacing it with a “REDACTED” stamp or other language of one’s choice. Likewise, privilege documents that have been identified can be separately Bates numbered. Instead of the tedious traditional hand entry process, the database can build a privilege log in minutes. Confidential documents can be branded with notice language and then sequentially numbered just as easily. Documents designated as non-responsive can simply remain dormant in the database for later use, or separated out as a group. If the same documents may be utilized in more than one action, the process can be repeated as necessary. Lets take another example – deposition preparation. This is one of the most labor intensive operations in traditional practice. It is very important, very expensive and seems to come at a time when many aspects of the case coincide. Best practices for deposition preparation include building witness kits to evaluate all of the potential documents that a deponent may have authored, received or been mentioned in. Putting the collection in chronological order tells the story for each deponent and enhances one’s understanding of objectives for the deposition as well as which documents will provide the best vehicle to explore and develop the testimony. The traditional approach has been to have staff review the paper documents and postit flag them for one or more deponents. Then the flagged set is sent off for photocopying as many times as names were written on the postits, or for each colored flag affixed. The selected documents, once returned, must be sorted for the appropriate deponent and then each pile put into chronological order. This entire process is lengthy and very expensive. In contrast, if one had developed a database, a simple search for each deponent’s name would bring up all of the documents in minutes that a manual search could take days or weeks to produce. Often, more documents are identified by the technological approach since the computer doesn’t get bored, distracted or interrupted. Further, once identified, the collection can be almost instantly chronologized. Hard copy output can be easily printed and then assembled into binders. In addition to saving time and money, the application of technology here will free up valuable law firm personnel to focus on the many important tasks attendant to the deposition preparation

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process. It also frees up the space that would normally require conference rooms for weeks on end. If preparing to defend one’s client in a deposition, the same process can be utilized to identify the evidence that may confront her. This can be used to prepare one’s witness and reduce the likelihood of surprise. While defending a deposition, an attorney can have the database loaded on a laptop and search for documents that may be indicated by the line of questioning to better anticipate the documents on which with one’s client may soon be questioned. In short, technology helps to organize the evidence into definable groups which can be found and sorted many different ways to better understand what the evidence means or locate particular pieces of it quickly. There are other important reasons to go electronic. In producing documents to experts, the database can identify the documents that the expert needs and segregate them as a group that can be burned to a CD ROM or printed. Today, many experts have deployed databases in their practices to enhance their efficiency. Objective, non-attorney work product, data can be exported in a format that one’s expert can use. This generally provides significant savings to the client as it obviates the need for the expert to duplicate the coding step in order to evaluate the documents upon which her testimony is sought. As a best practices step, the documents can be easily Bates numbered in minutes for identification as reliance documents. How often has a practitioner been drafting a brief and had need for a particular document to support a point? Many times the recollection is vague but one knows that a memo from X to Y somewhere around March of 1998 exists. A paralegal could spend hours searching through boxes of paper documents looking for it, or could use a database and have it in hand in minutes. When it comes time to assemble trial exhibits, the traditional process begins with the deposition exhibits – golden because the foundational basis for admission have been addressed. Traditionally, this entails making photocopies from the transcripts. This still may not include all of the documents one needs. Additional documents will be added as the evidence for each element of proof is weighed. Once the documents are identified they must be organized. Many practitioners prefer a rough chronology as it is easier for the jury to understand the story when presented in a linear manner. With the assistance of a database the identification and organization of the trial exhibits become simple. As depositions were completed, the documents that were utilized as deposition exhibits would have been recorded and thus can be easily segregated in minutes. If a probative value system was implemented, one could identify all important documents on a given issue to use as one’s own exhibits. Likewise, all documents on that issue with a negative value can be studied to determine the strength of one’s opponent’s case. Each issue can be sorted chronologically with a mouse click. Then the exhibit and page numbers can be electronically applied. By simplifying the mechanics, counsel is better able free to focus on substantive issues. Thus, identification and organization of the trial exhibits becomes an easy and routine function that can be customized to fit each practitioner’s preferences. Since the exhibits are already digitized, they can be easily projected at trial. The database information will import into

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most popular trial presentation software systems, such as Trial Director or Sanction to make finding impeachment or cross examination documents a cinch. The same process can be used to prepare an Appellate Record, should one’s case move up the judicial food chain. There are also important administrative utilities that use of a database enable. For example, if one has marshaled a review team to pore over a large collection of email or other voluminous document collections, not only will the number of document decisions per hour be increased with the use of a database, but the partner will be able to review the metrics of each reviewer’s productivity. Full histories of each document’s decision making record, including the date and time that a decision was made and by whom are easily accessible. So, if a final review determines that a certain document, which was judged to be responsive, turns out to be privileged, the administrator would be able to determine who made that judgment and when. Further, being able to understand the effective metrics of one’s staff adds an other level of objectivity to the employee review process. Having a better understanding of how many documents can be reviewed in a given time also adds objectivity to production deadlines and a firm’s capacity so that if additional time will be required one can make suitable accommodations early enough with opposing counsel so as not to sacrifice political capital. Over time, these metrics can be incorporated into firm norms that can be utilized at meet and confers to agree to production schedules that are obtainable without incurring overtime and other extraordinary expenses. In addition to document reviews, all case documents can be included in the database – or separate databases can be created which can be easily combined for unified searches. So, for example, one can place all transcripts into a database and make another one for all pleadings. Hyperlinks can even be created from the transcripts or pleadings to the exhibits they reference, making it easier to access the supporting documents as arguments and lines of questioning are analyzed. An additional database containing all case correspondence may also be useful. As we move into a more digitally dominant evidence world, databases become even more essential. With electronic evidence, new and effective tools can mine the files for data and provide almost instant searchability. The text can be extracted at 100% accuracy, emails can be grouped with their attachments and duplicates can be dealt with in ways that preserve the evidence but avoid the expense of multiple reviewers. In other words, the cost per document to process and review electronically stored information is significantly lower than with paper borne documents. The real issue with electronic evidence is volume! Each gigabyte of computer files contains approximately 50,000 pages. A typical computer user (called “custodian” in this context) will generate approximately one gigabyte per year – with certain technical or professional vocations producing two gigabytes per year. So over a four year period, each custodian might compile between 200,000 and 400,000 pages to be reviewed. If there are 10 significant custodians in the case, that puts the number of pages to be reviewed at between two and four million! Thus, being able to understand what the evidence means and finding ways to organize and use it to one’s advantage necessitates the use of these powerful database tools.

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So why wouldn’t everyone employ this technology? The main obstacle is that it front loads the costs. In other words, the documents must be scanned and the data entered into each field to form the database. While the costs have fallen drastically and the search technology has improved significantly, the entry level requires money up front. Still, the aggregate incremental expense from the traditional method will be substantially higher. The technological approach has been proven to save resources – money, time, space and focus. As that old commercial with the auto mechanic in greasy overalls advised, “Pay me now, or pay me later.” This principle is appropriate in this context because, although creating the proper tools costs money today, it will generate significant savings as the case progresses in a number of ways. First, direct savings are realized by reduced copy costs, fewer hours for deposition and trial preparation, more efficient document reviews and lower document production costs. Second, and really more important, counsel is able to focus more on the substance and strategy of the case rather than becoming swept under in the minutiae of each step or placed in a reactive mode to the opposition’s initiatives. In contrast, having the tools to understand and organize the evidence early on enables counsel to implement more resource effective discovery plans to get ahead of the curve in understanding the strength of the issues and their client’s potential liability. It puts counsel in a better position to control the case momentum and to achieve the best results for the client earlier in the case. Where the same core evidence is utilized in multiple matters, the reasons to adopt technology are all the more appropriate. Thus, not only are legal services delivered more effectively with the help of database technology, these powerful tools enhance the probability of a positive outcome. Just as the legal profession has embraced the online case law search tools such as Lexis and Westlaw to develop the legal authority in one’s case, database technology delivers the same capabilities for understanding and organizing the evidence that will determine the factual outcome of the case. Knowledge is power. Time is money. These two clichés encapsulate the benefits of technology. It can provide an advantage for the savvy practitioner. It will enable the identification, analysis, and access to the critical pieces of evidence necessary to win. Technology is simply a tool born out of necessity. By providing these powerful tools to outside counsel, clients or general counsel have opportunity to both save resources and enhance their chances for a successful outcome.

Michael J. Glick, Esq. is a Senior Solutions Consultant for Encore Legal Solutions. His role is to assist clients in the development of information management systems to enable efficiencies in case management with a critical focus on the discovery, case management and trial preparation processes.

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