ALB Technology Supplement 2013, Vol 3

AUSTRALASIAN

LEGAL BUSINESS

TECHNOLOGY SUPPLEMENT 2013

VOLume 3

AUSTRALASIAN LEGAL BUSINESS TECHNOLOGY SUPPLEMENT

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AUSTRALASIAN LEGAL BUSINESS TECHNOLOGY SUPPLEMENT - VOL 3

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AUSTRALASIAN

LEGAL BUSINESS

www.legalbusinessonline.com AUSTRALASIA EDITOR Renu Prasad PRODUCTION EDITOR Imogen Tear DESIGNER Michelle D’Souza ADVERTISING SALES MANAGERS Paul Ferris Peter Ratcliff TRAFFIC COORDINATOR Emily Ings

selling change!

Welcome to the third instalment of the ALB Technology Supplement. When we started the ALB Supplement series last year our intention was to deal with a variety of legal practice issues in equal measure, but it is clear that there is a strong demand in particular for information relating to legal technology. Thank you for your feedback and support.

This issue we take a look at an often overlooked part of technology strategy: the challenge of getting stakeholders to understand and embrace new solutions. Having the right technical solution is never enough of itself and public life is replete with examples of people who have attempted to implement ideas without success, even those ideas have later gained broad support. Dr John Hewson’s attempt to introduce a GST in Australia in 1993 is perhaps one example – although those readers who do not support a consumption tax may disagree! What is clear is that the human element of change management cannot be ignored, so we take a look at how the process can be effectively managed.

In this issue, we also look at the increasingly prominent field of predictive coding and the status of e-trials and containing discovery costs more broadly. We hope this issue proves to be a thought provoking and informative read.

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Volume 03, 2013

CONTENTS 03

WELCOME

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22

TRIALS OF THE FUTURE

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THE HUMAN ELEMENT

CONNECT TO COLLABORATE

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32

SEEING IS BELIEVING

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STREAMLINING THE LAW FIRM: 8 KEY RECOMMENDATIONS

LEGAL TECHNOLOGY

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THE HUMAN ELEMENT SOMETIMES JUST ROLLING OUT NEW TECHNOLOGY IS NOT ENOUGH. AS BEN ABBOTT DISCOVERS, IT IS THE PEOPLE USING IT THAT WILL MAKE OR BREAK ITS SUCCESS.

F Derek Giles, Swerdlove

Amanda Harriss, Harriss Wagner

Brian Smith, Caseflow

or the Luddites of the legal community, the implementation of new technology seems fraught with all manner of things that could go wrong. For such lawyers, all it takes is the mention of intimidating terms like ‘data migration’ or ‘business process improvement’ to send them cowering behind desks, comforted by the familiar piles of paper they have built up like walls around themselves.

But to the insiders who make their living implementing new technology and processes in Australian law firms, there is one challenge above all that needs to be overcome each and every time. People. Indeed, it is the people who work within these firms – both Luddites and technology enthusiasts alike – who will be the ones to make or break the success of any new way of doing things.

In a legal market in a state of flux, technology and process improvement has now become critical to streamline productivity and boost client service standards, helping firms manage both costs and meet voracious client expectations.

In fact, it is the technology factor that can result in law firms losing out to their competitors, according to Amanda Harriss, partner at independent management consultancy Harriss Wagner. “Clients often want to tell us about the tenders they are

bidding for, and why they can or can’t meet the requirements of their clients or are losing out from a technology perspective on deals because they couldn’t meet the required criteria,” she explains.

It has now become critical for firms to be more ‘nimble’, and to do ‘more for less’. This means overcoming barriers to new ways of working, but one in particular, according to Brian Smith, chief executive of workflow solutions firm Caseflow. “It is all about the people,” he says. “In the success of every product the biggest variable is always the people; there are a lot of reasons why that is the case.”

Harriss agrees the human element is critical. “At the end of the day you are dealing with people, and you can introduce new technology or change, but if no one is using it or using it effectively it becomes just another business cost, not an enabler that will improve processes and result in better productivity for the business.”

STEP 1: ALL ABOARD If the success of any new technology or business process change depends on the people within a law firm, then those people had better be serious about it. It is this commitment or ‘buy-in’ at the outset of a project that is critical, say experts.

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“IN THE SUCCESS OF EVERY PRODUCT THE BIGGEST VARIABLE IS ALWAYS THE PEOPLE.” BRIAN SMITH, CASEFLOW

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“We’ve got to have some difficult discussions with firms upfront,” says Smith. “We are a fundamentally disruptive technology; our modus operandi is to come in and look at what you do and find ways to change it to make you more efficient. They [firms] need to understand there is more work in it for them than for us.”

SETTING GOALS The first step to gaining buy-in is to find and establish the firm’s goals. It is a shared and agreed purpose that will pull constituents through the project.

“It comes down to setting goals about what the firm wants to do,” Caseflow’s Smith says. “Is it that the firm wants to improve productivity and margins, is it improving on the KPIs that clients are measuring them on or measuring these more effectively, or is it about improving file velocity?”

For Harriss Wagner, which is often engaged at a senior level for long-term whole-of-firm change projects, establishing goals usually involves a top-to-bottom strategic and operational review. “Most firms know what they want, however they don’t know always how to go about getting there,” Harriss says.

The consultancy always recommends drawing together focus groups or subject matter experts from within the firm, gathering those best placed to provide feedback on current practices and processes and areas of possible improvement. Harriss Wagner deliberately seeks out people from different strata and service groups within the firm, as well as both optimists and pessimists to obtain a balanced view on the culture and operations within the firm.

Caseflow’s model is to start with specific business units within a firm. Smith says the expectations and scope of new projects need to be explored and made clear at the outset.

For example, he says with new tech there is always a ‘can it’ question. “The answer is invariably ‘yes’. All you need is the time and the money. However, it’s better to set very precise goals and get the system developed to meet these goals, like a 10 percent productivity improvement for example.”

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DOES AGE MATTER?

They are the stereotypes that deserve to be challenged.

First, there’s the older, grey-haired, change-resistant partner, so stuck in old ways of doing things there is a refusal to even turn on that thing called a PC. Then, there’s the budding, tech-savvy 20-to-30 something rising star, excitedly embracing new technology and the change it can bring to legal practice.

Sound familiar? Well, perhaps the stereotypes themselves do, but according to consultant Amanda Harriss of Harriss Wagner, the actual reality of the age-technology equation is not as straightforward as glib generalisations imply.

Harriss says that the ability for an individual within a law firm to adapt to new technology and processes is much more dependent on the diversity of their career experience. “You might get a young person who has started out in a law firm at a very young age and has stayed with that law firm for their early career and although they are young they can’t adapt to change because they don’t know anything different,” Harriss says. Such individuals may be more resistant to change simply because they have not been exposed to other ways of doing things, or as Harriss says, they have perhaps “stayed in one role for too long”.

Then there’s the exact opposite. “You can have older people who have gone from one law firm to another or even out of the industry, they may be older but they can be more accepting of change because they have experienced many different ways of operating,” she says. In fact, Harriss says that older lawyers who embrace new ways and practices are often the source of new and innovative ideas for the way technology can help their business.

In fact, technology experts concur that the intent of new technology and process change projects in the current environment should not be about perfection, but instead about being readily adaptable to volatile and changing conditions.

According to Harriss Wagner, the mantra of the ‘golden decade’ leading up to the financial crisis that ‘strategy’ or ‘implementation’ needed to be right and then success would follow is no longer true. Instead, uncertainty is now the new normal, requiring adaptable strategies and achievable implementation.

“There needs to be a recognition that the solution doesn’t have to be perfect, it just needs to be consistent and focused on the end game, for example, this is where I want to be on a macro level in three years time,” Smith

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TWO COMMON FEARS ABOUT NEW TECHNOLOGY 1

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Fear of…. losing your job

New technology often leads legal staff to fear they may be put out of a job or replaced by it, leading to resistance in uptake. This fear is real, and in many cases can be realised as firms look to cut costs in a post-GFC environment. However, Derek Giles of Swerdlove says that many staff so affected often subscribe to a ‘higher belief’ that change and new technology are inevitable and necessary.

Fear of…. more work

Efficiency and productivity gains expected through new technology leads some in the legal profession to fear this will eventually result in more work. However, Brian Smith of Caseflow argues that what technology gives back instead is more time, resulting in less stress, and happier staff and department heads.

says. “Starting with something imperfect is a recognition that things are likely to change.”

BUYING IN Once the parameters or goals of a project have been established, it is necessary to achieve buy-in on these new objectives. Often in the case of Harriss Wagner and others, this involves a presentation to the board, where proposals are vigorously examined and argued by the best people at doing just that – lawyers.

Derek Giles from electronic payments technology provider Swerdlove says this is where the difference between gaining buy-in in the legal profession and other industries becomes obvious to project managers. “If you get into an argument with a lawyer invariably you will lose; it’s their profession after all,” he says. “Instead, you need to ensure you are coming from a position of strength based on logic.” Likewise, Giles says for lawyers ‘perceived risks’ of technology implementation are as important as real risks, in contrast to other industries, where often they are dismissed as ‘perception’ rather than actual reality.

However, once a partner or partners have reached agreement on the goals of a project and committed to them, the project will usually get support right through to the end, say experts, with responsible partners going in to bat for the project.

Harriss says it is important to crystallize all aspects of the agreed project – which should include roles and responsibilities, methods of delivery, and a communications strategy – into a ‘project charter’ to govern the project.

This overarching document binds everybody, including external parties, to the outcomes that have been agreed upon. “We work hard at putting this governance document together, maintaining it and engaging people to get this buy-in at the beginning and follow it through,” Harriss says.

Project experts often encounter peoplerelated challenges in this foundation phase. “You can usually gauge pretty quickly if a client is serious about the change management associated with a project based on the depth of the strategy,” Harriss explains. For example, if the project champion is a chief operating officer who hasn’t carved out a strong position within the business, this could weaken the drive behind the project, placing it at risk of failure.

STEP 2: PEOPLE POWER Getting buy-in on a technology project at the outset is one thing, but successful implementation is quite another. So what are some of the ways technology experts overcome the uncertainty of the human element during a rollout?

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START SMALL Caseflow starts at the business unit level rather than a firm-wide approach, and Brian Smith has seen the benefits of a baby-step approach founded on measurable outcomes. “With the adaptation of a system, it’s best to go for an area that is the most logical and where you are most likely to have success.” Smith says that demonstrating value through achievement – for example, in one practice area of the firm with 10 to 20 lawyers – often results in other partners within the firm “queuing up” to gain the same benefits. In this way, Smith says wider firm buy-in grows from small successes rather than a large leap of faith.

Swerdlove’s Derek Giles agrees, saying that in the past where ‘parallel runs’ were made to test new software alongside the old, these have been scrapped due to resource constraints, and smaller rollouts are best practice. “Then you hope that it gets rolled out more widely because of the good things that practice group is doing.” This ‘pilot’-style step-by-step approach is also less likely to suffer from scope creep or cost blowouts, and will maintain the nimble nature required of new technology rollouts in the current fastchanging environment.

THE RIGHT PEOPLE Firms will of course need to get more people engaged in the rollout phase. For Harriss Wagner, the subject matter experts it consulted during its strategic and operational review become some of the first nodes of advocacy, having already been made aware of and consulted on the direction the law firm is heading in. Smith says critical people to get involved in workflow-related matters are those dealing with the nitty gritty of that flow on a daily basis. This could include a partner, a senior associate and a paralegal or secretary, rather than the IT people one might expect.

Such people know how to make changes work at the coalface, and, Smith says, the tech can be taught and the IT department involved later.

VISIBILITY Success depends heavily on visibility. For this reason, Harriss Wagner ensures that the

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project scope and governance is not buried and lost. Instead, the aim should be for responsible partners or managers to continue to communicate updates across their fellow partners and across the organisation more broadly throughout the implementation phase of any project, utilising marketing channels such as the firm’s intranets, as well as other technology available to firms such as collaboration tools, which allow individuals to comment on and engage in real-time collaboration on a project. Visibility ensures constant engagement and obtains buy-in.

TRAINING Training and education programs are a must with any new system and change introduced, and this always needs to be balanced by different firms against their available resources. Harriss Wagner, for example, runs workshops throughout a change project and user acceptance is always the means to obtain ‘proof of concept’, before moving forward with the delivery of the training and education program. Other techniques including presentations are also used.

REASON Firms will need to deal with different types of individuals at all levels along the way, from outright skeptics to over-enthusiastic evangelists. “Without fail when you deploy new technology there will be one person who will walk into the office and say it’s horrible, that they hate it and don’t want it,” says Smith.

A lot of the time, overcoming such resistance from individuals is first about dealing with the “what’s in it for me?” question, demonstrating the value of a technology to an individual or a practice, or finding the ‘hook’ as Swerdlove’s Derek Giles terms it.

Harriss says in the case of fear of new technology or change, it is often better to speak with users from the starting point of their own experiences and lives – for example, the types of technology that their grandchildren may be using, if they are an older lawyer – to engage them in ways they can see benefits. Harriss says winning over new users should always be undertaken

“MOST FIRMS KNOW WHAT THEY WANT, BUT THEY DON’T KNOW HOW TO GO ABOUT GETTING THERE.” AMANDA HARRISS, HARRISS WAGNER

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by focusing on the enhancements to their processes, rather than getting bogged down in the tech.

STEP 3: EVALUATE Throughout new technology implementation, evaluation provides valuable feedback that could save time and troubleshooting later on. The trick is to know how to obtain the feedback the firm needs, and how to act on it if necessary.

Standard survey forms, for one, are not universally thought of as good mediums from which to gain the insights firms are looking for. “Sometimes the only people who answer them are those you don’t want to hear from,” says Giles. They could be a collection of over-enthusiastic evangelists who speak ‘louder’ than others and therefore get heard, to the detriment of the project. These modes of feedback are also criticised for not “giving anything back” to users and keeping them at arm’s length, despite these users giving valuable time for providing feedback.

Focus group scenarios tend to gain more well-rounded insights, as do lunch time feedback sessions, which – while attracting people for a free sandwich – are successful because they allow free-flowing discussion between different levels of staff, and often see people discussing solutions that will suit all parties.

The challenge with these feedback sessions, and in particular morning tea-style feedback, is that Giles says in the legal profession, unlike other industries, the missing of meetings is often culturally “applauded”. “It’s not a textbook scenario where you have a focus group meeting scheduled for morning tea, you supply the free donuts and you get your group,” he says. Instead, Giles is a proponent of ‘floor walking’, or heading out into the offices of end users to gain insight firsthand, often late in the evening when they have the time to meet. “Being out there on the floor it is easier for them to provide feedback and you are living and breathing their problems,” Giles explains. “Often the best feedback comes from a partner at 8pm at night, when he’s not

sure of something or his staff are not sure; you can see the results or how things could be made easier.”

Smith says one of the most difficult parts of any rollout is convincing people of the importance of testing. “People often think that the job is finished when they have finished the construction phase; they think they have done everything right.” However, he says that any new system needs to be run through multiple structured real-life test scenarios, which will minimise troubleshooting. In some cases, failure to run through these variables can cause headaches.

Smith adds that systems should be built to be adaptable to ongoing change, with departments self-enabled to deal with new developments that crop up. “Keeping it administered at the business level is the secret, as they can then adapt to their own change. You can’t have a central point of failure in the IT department; the business unit has to be able to solve a lot of problems by themselves.”

THE END USER In the end, firms will see success among users by making any new technology about them, not about the technology itself. “When implementing a system like ours, it is all about what happens at a user’s fingertips,” Smith says. “It’s about sitting down with a partner who is running a legal matter and ensuring that they understand what we are talking about. We don’t mention .net this or CPU that.”

Likewise, Amanda Harriss: “We focus on applying user processes and scenarios on how they do things and relate the technology back to that, not how the technology works. That way they see technology as more of an enabler than it being the focus of the change.”

This returns back to the point of the technology rollout, which is all about the usefulness of the new technology, not technology for its own sake. Smith says if firms do not maintain this focus it is to their detriment. “How users react is so critical; if there is poor user take-up it can take longer to realise the benefits.”

“IF YOU GET INTO AN ARGUMENT WITH A LAWYER INVARIABLY YOU WILL LOSE; IT’S THEIR PROFESSION AFTER ALL.” DEREK GILES, SWERDLOVE

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seeing is

BELIEVING:

USING VISUAL ANALYTICS TO TAKE PREDICTIVE CODING OUT OF THE BLACK BOX

David Grant Senior Managing Director, FTI Technology, New York

P

redictive coding is on a meteoric rise given its significant potential economic benefits and the beginnings of judicial imprimatur (see for instance Da Silva Moore v Publicis Group, S.A.1 and Global Aerospace Inc v Landow Aviation).2 Although research shows that predictive coding typically yields more accurate results than the so-called “gold standard” of manual review,3 counsel need to be comfortable using it, which means confirming to their own satisfaction that a document production is complete.

Predictive coding is relatively new, and the process is perceived as somewhat “black box” in that it is thought to be not as easily understandable or transparent as the traditional combination of keyword searches and human review. Because of this, it is crucial to have multiple tools available for ensuring confidence that the production is appropriate and does not leave room for successful challenge by judges or adversaries.

Apart from general challenges as to volume (rebutted with recall measurements and burden showings), successful challenges to a production often take the form of questioning:

(1) whether the producing party has produced the key documents from the pool and (2) whether it has produced documents from all categories listed in the requests for production.4 Therefore, it is in these areas where counsel must be most comfortable with the predictive coding results.

THE KEY TO COUNSEL OBTAINING SUCH CONFIDENCE IN THEIR PRODUCTION IS THREEFOLD:

First, the underlying predictive coding technology needs to be explainable in a way that at least gives some reason for confidence or some purchase into the process notwithstanding a lack of technical expertise.5 Second, statistics need to be used to measure how well the algorithm performed, based on recall and precision (recall measures how well a process retrieves relevant documents; precision measures how well a process retrieves only relevant documents).

Third, the corpus needs to be checked to ensure it is not vulnerable to the two primary challenges.

This latter substantive check requires a costefficient way to understand the overall content

“PREDICTIVE CODING IS ON A METEORIC RISE GIVEN ITS SIGNIFICANT POTENTIAL ECONOMIC BENEFITS AND THE BEGINNINGS OF JUDICIAL IMPRIMATUR.”

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of the production itself, and also a cost-efficient way to examine the ‘left behind’ documents to ensure the key documents have been caught.

HOW VISUAL ANALYTICS MAKES A DOCUMENT POPULATION TRANSPARENT

Visualisation technology is an invaluable tool in enabling efficient testing of the document pool for these issues. Visual analytics are tools that can take large, complex data sets and translate them into a graphical interface, permitting reviewers to analyse the contents of a population of documents without the need to fully review every document. Instead, they can visualise patterns, trends and outliers, lending insight that would otherwise be difficult to achieve.

A primary benefit of visual analytics tools is that they give users rapid, cost-effective, easy-to-understand insight into their document pools. In essence, visual analytics is the equivalent of a highly evolved zoom lens: users can start with a very large document set and quickly zero in on areas of interest and, crucially, have good reason (based on the content of the documents) to feel comfortable ignoring the rest of the set. For example, across a large collection

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“A PRIMARY BENEFIT OF VISUAL ANALYTICS TOOLS IS THAT THEY GIVE USERS RAPID, COST-EFFECTIVE, EASYTO-UNDERSTAND INSIGHT INTO THEIR DOCUMENT POOLS.” GRAPHIC 1

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visual analytics can create groupings of similar documents, called “clusters,” to highlight the key concepts for documents in each cluster.

This map to the documents can be created against very large populations, from hundreds of thousands to even millions of documents.

Clusters of interest can then be selected and zoomed in on for closer analysis. [See Graphic 1, opposite page below] The ‘zoomed in’ set is then clustered at a document level. Each cluster is composed of multiple similar documents, each represented as a dot. Dots are colored according to their coding categories, such as “responsive” or “privileged.” Through this visual interface, researchers view individual documents in the context of similar documents and also receive a quick guide (map) to the contents of those documents. Clusters sharing similar concepts are connected along lines called “spines.”

[See Graphic 2] Once the classifier has autocoded the data set, visual analytics allows users to explore documents based on similar concepts, search terms, or coding, enabling them to identify trends and outliers quickly. Users can examine clusters of similar documents that contain dots of different colors to determine the reasons for the inconsistent coding. They can use ‘seeds’ of known key documents as color-coded clues for finding documents which are similar either in the same cluster or clustered along the same spine. Senior attorneys can perform a number of operations on the visualisation, including zooming and reclustering on various subsets of documents related to those selected, to ensure they have a comprehensive view of the data set. In short, with the multiple views of data that visual analytics offers, users can compare related documents to identify missed documents and isolate and resolve inconsistencies in scope or in coding.

USING VISUAL ANALYTICS TO GAIN ADDITIONAL CONFIDENCE IN THE PREDICTIVE CODING PROCESS

The process of using visual analytics to confirm the results of predictive coding resembles the way lawyers attempt to thoroughly research case law in Westlaw and/or Lexis. When using those systems, first the legal researcher performs a Boolean search for cases using key terms. When the system returns cases that match the terms, the researcher can then evaluate the case summaries, digests, and headnotes to learn the standard terminology

DEFENDING AGAINST A CHALLENGE

The keys to defending a challenge by adversaries or judges – should they pose one – are as follows: 1. Make sure your team can explain how and why predictive coding works and be able to enunciate the process and its level of quality in a way which gives others confidence in the process. Make sure your service provider is transparent about each and every step in the process.

2. Be prepared to deliver a statistical analysis of the results (recall and precision), and ensure testifying experts will stand behind the statistical validity of the production set.

3. Consider explaining that, in an over-abundance of caution, your team used visual analytics to “see” both the production and nonproduction sets to make sure nothing was missed.

GRAPHIC 2

that various courts use to refer to the concept being searched and to get ‘high level’ senses of the case content. Then, the researcher can refine the search by plugging in that alternate terminology and then obtain another, more focused set of cases. As the researcher iterates the process and continues to refine the search results, the system will eventually begin to return the same relevant cases over and over, along with a decreasing number of irrelevant cases. Ultimately, the researcher will see that all possibilities have been examined when the system returns nothing but repetitive results.

Similarly, to gain full comfort in the production – and obviate any potential grounds opposing counsel may find to contest it – users must substantively confirm that the classification software performed a comprehensive search that yielded valid

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results. Typically, when corroborating the results of predictive coding, users must verify there are no gaps, focusing on two things: 1 verifying at a high level that the responsive document set is not missing known key documents – or entire categories of the request for production – and 2 verifying at a high level that the nonresponsive document set does not contain unexpected volumes of important or key responsive documents.

To remedy the first concern, users can confirm there are no holes by organising the responsive document set into clusters by concepts (words and phrases) and match the concepts to the issues outlined in the requests for production. If a gap is found, users can add into the concept map (mine) both responsive and nonresponsive documents, identify the concept clusters which will fill the gap, and then when drilling into that cluster the documents will appear in contrasting colors so users can quickly identify documents marked nonresponsive. Once identified, users can then drill into those documents to determine whether they should be coded differently.

For the second concern – whether the classifier left large volumes of key or responsive documents behind – users can search for and analyse documents marked nonresponsive to confirm their non-responsiveness. The process starts with concept clustering at a high level to briefly examine any clusters with potentially relevant concepts and confirm their handling. The clusters, which can also be ‘seeded’ with already identified key documents to help identify ones which matter, can then be examined with documentlevel concept clustering to again zero in only on any potentially key clusters. This process is then iterated until counsel is satisfied that substantially all key documents have been identified.

CONCLUSION

To date, predictive coding technology has not been widely adopted largely because it is perceived as difficult for counsel to understand and therefore to be comfortable using and

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RINGTAIL ANALYTICS Ringtail Analytics allows users to mine collections of responsive documents. The following features of Ringtail’s visual analysis tools help counsel manage voluminous data sets cost-effectively and rapidly:  Mines: Assess hundreds of thousands to millions of documents at a time, simply by organising them based on key concepts and concept frequency.  Document Mapper: Identify documents relating to similar topics, subjects, themes, or known ‘seed’ documents, and identify coding discrepancies that require resolution.  Cubes: Visualise the relationships between different data points, such as when custodians e-mailed about key topics, and drill down into important information. Test and sample keywords to identify documents, custodians, and timelines associated with a set of keywords or metadata.  Scalable Search: Search tens of millions of documents and fields and view multicolored highlighting to see where keyword hits occurred in a data set.  Find Similar: Use key documents or phrases to locate documents that contain matching information. defending. However – especially when combined with a basic understanding of predictive coding and a valid statistical analysis of its results – the transparency visual analysis software offers the producing party into their own production can resolve counsel’s concerns that the “black box” of predictive coding does not generate accurate results. Visualisation’s simplicity and clarity allows lawyers to easily assess the classification system’s output. With this information, lawyers can easily gain insight into coding decisions, grasp the relationships between documents, and resolve concerns about production breadth or inconsistency – enabling a very high level of confidence in the results of the process.

David Grant is a senior managing director in the FTI Technology practice and is based in New York. A native Australian and graduate of UNSW, David started his career in NSW as a clerk for Freehill, Hollingdale & Page and for the NSW Crown Solicitor’s Office.

FOOTNOTES 287 F.R.D. 182, 192 (S.D.N.Y. 2012).

No. CL 61040 (Va. Cir. Ct. Apr. 23, 2012).

3 See, e.g. “Technology-Assisted Review in E-Discovery Can Be More Effective and More Efficient Than Exhaustive Manual Review,” XVII RICHMOND J. OF LAW & TECH. 3, 1-48 (2011).

4 There are also, of course, substantive disputes over the proper scope of production and what subject matters parties are obligated to respond to and in what depth, but those are beyond the scope of this discussion.

5 For FTI’s approach to ‘telling the story’ see the FTI Journal article “Taking Predictive Coding Out of the Black Box” available at http://www.fticonsulting.com/global2/critical-thinking/fti-journal/predictive-coding.aspx.

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STREAMLINING THE LAW FIRM:

EIGHT KEY

RECOMMENDATIONS FOR FIRMS GRAPPLING WITH THE IMPACT OF DIGITAL AND OTHER TRENDS

By Scott Jackson National Manager - Solutions, Programs & Pricing, Fuji Xerox Australia

The Australian legal sector generates nearly $20 billion of revenue, spread across more than 18,000 individual businesses, and over 80 percent of this revenue is generated outside of the “top-tier” firms. It is often portrayed as an industry underpinned by tradition and history and less affected by technological changes than most others. However, globalisation and national consolidation has increased competitive pressures and squeezed margins. This, combined with a challenging economic environment, has resulted in a wave of efficiency and modernisation sweeping across the sector.

In the context of that wave of modernisation, Fuji Xerox Australia commissioned Colmar Brunton, an independent research agency, to undertake a piece of research with an aim of exploring the most pressing issues facing the industry and to provide an objective assessment of how much progress has been made, and what challenges remain for small and medium legal businesses. In many sectors, technological development has led to increasing automation. This is largely unrealistic in the legal sector, where every matter is different, and individual judgement plays a fundamental role. Technology-led efficiency is being delivered more by workflow systems, data-handling tools and business process management. A law firm is a classic knowledge-based entity – its work driven by

the flow of information in, out and around the organisation. Until recently, that flow of information has been overwhelmingly in the form of paper. The classic media backdrop for a legal interview remains packed shelves of law reports, while the most recognisable outputs of the legal process such as contracts have generally been in physical form. However, this paper-intensive approach is changing rapidly and the industry as a whole is undergoing a period of unprecedented change.

The study began with a series of in-depth interviews with legal professionals – providing detailed case-studies of firms at different stages of their technological development.

The conversations explored the typical documents, processes and systems used in law firms as well as providing insight into the common frustrations experienced and observed trends. This was followed by a much larger survey of firms across Australia to quantify the issues and trends from the first stage and to see how these varied by size of organisation. Participants included legal practitioners, management, administration staff, IT/Procurement and also those who worked in other areas such as finance in order to ensure a holistic understanding. The full paper is available at http://bit.ly/1eco3A7.

This excerpt from the paper provides eight key recommendations for law firms grappling with the challenges of information in the digital age.

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“THE CURRENT GENERATION OF LAWYERS HAS GROWN UP TAKING UBIQUITOUS ACCESS AND CONSTANT CONNECTION FOR GRANTED. THEY WILL ACT AS CHAMPIONS FOR NEW, INNOVATIVE AND POWERFUL WAYS OF WORKING – IF YOU GIVE THEM THE TOOLS, AND THE OPPORTUNITY.”

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This research paints a picture of an industry in the midst of dramatic change – both commercial and technological. The exchange of reams of carefully collated paper is gradually being superseded by the digital transfer of countless electronic files. The most successful companies will be those that most effectively embrace the technologies that aid efficiency, and integrate them into their core business. It’s clear that the moves to modernise are being driven by the largest companies in the sector. Smaller and medium firms need to ensure they are not left behind.

There will be setbacks along the way, and resistance to change to be overcome. But the rewards are a more profitable business, happier and more productive staff and delighted clients. It’s worth the effort…

EIGHT KEY RECOMMENDATIONS FOR LAW FIRMS 1. Articulate a clear strategic vision for your firm, and let this inform your technology pathway. In particular, a determined focus on efficiency and effectiveness, alongside traditional core values of professionalism and customer service, will naturally suggest technology solutions to invest in.

2. Trial new technologies in small, controlled environments. Rolling out major changes in working processes without a clear understanding of the potential pitfalls is a clear risk. A high profile failure of implementation can lead to new technologies being dismissed before the benefits can be demonstrated.

3. Track your costs. It’s tempting to accept the costs of printing, copying and storage as purely ‘part of doing business’ and hence treat them as utility costs, to be considered alongside the lighting and heating of the office. But as many firms we spoke to have demonstrated, these variable costs can be controlled and minimised – with a significant impact on the bottom line. The first step to controlling these costs is tracking them.

Remember the old maxim ‘if you can’t measure it, you can’t manage it’.

4. Print sensibly. Once you have an accurate measure of the costs associated with scanning, printing and paper transfer, the next step is to encourage staff to minimise the amount of information they commit to hard copy. A gentle series of behaviour ‘nudges’ may be more effective than draconian edicts from above. Employing pull print technology allows

everyone to reflect on whether they really need to print a particular document. Moreover a simple report showing who generated how much printed material can provide a people with comparison benchmarks – and hence incentives to change their habits.

5. Update your infrastructure. There is no point is asking people to work in a largely paperless environment if their hardware is not conducive to doing so. Fixed desktop computers, small screens, slow scanning and processing tools, limited storage and slow networks all contribute to making onscreen working a frustrating and unpleasant experience – hence the preponderance of people simply printing out whatever they need to review. Super-fast, multifunction devices, laptop computers, tablets and fast connections make it easy and enjoyable to work on a screen.

6. Integrate your systems. The other major incentive for working with soft-copies as a default should be the ability to seamlessly manage projects and flow effortlessly between client-facing activity, administrative tasks and reporting. Making sure that all your systems work together with each other, and with the common office applications (Outlook, Word, etc) will vastly increase the accuracy and reduce the time taken to carry out the core activities of the business.

“THE EXCHANGE OF REAMS OF CAREFULLY COLLATED PAPER IS GRADUALLY BEING SUPERSEDED

BY THE DIGITAL TRANSFER OF COUNTLESS ELECTRONIC FILES.”

7. Get mobile. Allow your most important staff members to work anywhere at any time.

Whether they’re in court, at home or on the road, they need the ability to access any aspect of the firms work – reliably, simply and securely. The current generation of lawyers has grown up taking ubiquitous access and constant connection for granted. They will act as champions for new, innovative and powerful ways of working – if you give them the tools, and the opportunity.

8. Policy in partnership with process. The advent of new technologies and trends such as BYOD and the drive to digital archiving presents a slew of new challenges for the legal fraternity. Before adopting any new processes, legal firms should be aware of their rights and obligations under the relevant statutes and ensure they institute policies that uphold these. For example, having a disposal schedule and procedure for electronic records as well as hard-copy files, and helping your staff with a policy outlining which electronic records need to be kept, how and where.

Scott Jackson is National Manager - Solutions, Programs & Pricing at Fuji Xerox Australia. In this role, Scott leads a large team of marketing managers, product managers, and service and innovation specialists whose role it is to take the latest technologies, in document management processes, to businesses in Australia.

CONFERENCE

WORKFORCE AND BEYOND SYMPOSIUM Melbourne Marriott Hotel | 15-17 October 2013 Featuring experts from corporate, government, legal and academic sectors, the symposium will provide delegates with a state-of-the nation overview of challenges and issues faced by the Australian workforce in 2013.

WHO WILL BE THERE? Directors/Managers/Advisors responsible for: • Industrial Relations • Human Resources • Policy • Workplace Relations • Legal

PROGRAM HIGHLIGHTS: • The Changing Composition of the Australian Workforce • Future of unions and other registered organizations • Australia’s productivity challenge • Developing an Asia Capable Workforce • Immigration & 457s: Separating fact and fiction (Panel Discussion) • What to expect from the Fair Work system • Understanding the Collective Bargaining Equation View the detailed agenda at www.thomsonreuters.com.au/events

Don’t miss this rare opportunity to learn from and network with the thought leaders of Australia’s IR landscape!

For more information or to register please contact Savitha on 02 8587 7960 or email savitha.viswanathan@thomsonreuters.com

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TRIALS OF THE FUTURE

By Allison Stanfield CEO of eLAW

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rials of the future will be conducted using electronic versions of the documents, rather than hard copy, and the use of technology such as social media will be used to correspond with the courts to obtain interlocutory orders, rather than going to the expense of appearing in court. Documents will be able to be uploaded to the courts at the click of a button, and the judge will be able to be directed to documents and portions of documents at the click of a mouse. Some of this is possible now, for example, the Federal Court has its e.forum to allow parties to provide submissions to the court, and for the court to make orders, but in the future, all aspects of the court process will include electronic documents and greater use of technology.

This is the way the next generation of lawyers already works and communicates.

Law students no longer need to turn up to lectures, videos of classes can be downloaded and viewed at the student’s leisure, and assignments are uploaded to a virtual classroom where lecturers can download and mark them. Likewise, marks are all available online, as is all the material a student needs to study. Indeed, even the law library is a thing of the past, with all resources available on databases.

ARE E.TRIALS COMMON AT PRESENT?

Although the Federal Court Practice Note CM6 encourages the use of e.discovery and e.trials, e.trails are still the exception rather than the norm, notwithstanding that one of the first e.trials in New South Wales was run 15 years ago (the Thredbo Coronial Inquest).

Why are e.trials still relatively uncommon?

First, e.trials are perceived as expensive, and e.trials can be an added expense if everything has been prepared in hard copy, and then before the trial begins, everything needs to be converted to an electronic format.

Further, although this is slowing changing, many courts are not equipped to enable lawyers to display documents electronically.

Another issue is the way in which users, particularly counsel, engage with the technology. Counsel should be free to conduct their cross-examination using whatever tools suit them. Counsel’s skill lies in being able to get a witness to say whatever will advance his or her client’s case, and many years are spent honing those skills, and if the use of hard copy documents is part of that skill, it would be an impediment if new skills had to be learned prior to a new hearing. Instead, as the next

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generation come along, who are not only familiar with technology, but for whom it is a way of life, only then will lawyers be fully engaged with technology.

HOW ARE E.TRIALS RUN TODAY?

e.trials are generally run in the same way as they were 15 years ago, and often they are used for matters in which many documents are to be tendered; in these cases, it is certainly more difficult, more time consuming and more expensive to run trials using hard copy.

An example of a present day e.trial is a large ongoing trial being heard in the Supreme Court of New South Wales, where the court ordered the trial to be run electronically. With almost 100 sitting days since September 2012, covering 10 separate proceedings (all being heard together), and over 47,600 documents, including 300 affidavits, the technology has made a significant cost and time difference to the lawyers and judge involved in the trial.

Due to the magnitude of the trial, technology has made every step leading up to and during trial much more time and cost effective, from reviewing and discovering documents, producing them in the courtroom and accessing transcripts. e.trials save time in the courtroom, by allowing documents to be displayed quickly, by enabling documents to be searched and retrieved quickly, and the use of hyperlinks between documents such as witness statements and their exhibits, means it is much more efficient for the judge hearing the matter to review documents. e.trials are a complete service for parties including structuring and uploading an electronic courtbook, ensuring all parties and the judge have access to the software in and out of court, publishing documents electronically in court, providing a real-time transcript service, and hyperlinking and indexing documents to increase accessibility.

One of the advantages of the courtroom technology is that it is possible for parties to work externally from the courtroom but still be able to login and the documents published in the courtroom, along with the transcript

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in real-time to know exactly what is going on at any time. Users also have access to indexes including hyperlinked lists of each day’s published documents and documents from each witness; the parties have all the documents at their fingertips. A Court Operator locates and displays documents referred to by counsel, and this saves having to produce multiple copies of documents for our counsel, witnesses and the judge, thereby saving an inordinate amount of time and costs during the hearing.

Video conferencing is available for witnesses to provide testimony remotely, if they are unable to travel to court.

Digital transcript can be made available to the parties and to the court, although in many large matters, real time transcript is used, which is where the text of the transcript is available on screens in the hearing room, or even remotely back at the parties’ offices, seconds after the witness has spoken.

Transcript analysis tools then enable notes and issue to be marked on the transcript, thereby enabling the evening’s review of the transcript to be much more efficient, as notes are already available on the transcript.

Although not yet widely use, video transcript can be used, which can link between the video, audio and transcribed text.

CAN E.TRIALS BE USED FOR SMALLER MATTERS?

They certainly can. If parties have a small number of documents, yet they are in electronic format, then a very simple display system can be made available in the courtroom. Counsel presenting the material can simply bring up a document on their screen, which will then show up on all screens around the room. Alternatively, a court operator may be engaged to bring up and display the documents. The benefits the use of such systems bring to the courtroom are the same benefits that they bring to larger, more complex matters, that is, they result in the display of documents much more quickly, allowing those present in the courtroom to view the documents quickly and easily, without the need for each party to go to cumbersome

“TECHNOLOGY HAS MADE EVERY STEP LEADING UP TO AND DURING TRIAL MUCH MORE TIME AND COST EFFECTIVE.”

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“AS DISCOVERABLE MATERIALS ARE PREPARED ELECTRONICALLY, AND WITNESS STATEMENTS ARE NOT ONLY MADE MOVING TOWARDS THE AVAILABLE ELECTRONICALLY FUTURE BUT ARE HYPERLINKED TO THE EXHIBITS, THEN E.TRIALS WILL BE PAR FOR THE COURSE.”

hard copies and wait for everyone else to be “on the same page”.

Discovery in smaller matters is now being prepared electronically, not necessarily because the lawyers undertake it in this way, but because the documentary evidence exists only in electronic format. It makes sense to use technology to find the relevant electronic documents, then discover them electronically and then of course, to provide them to the court electronically. Smaller claims are still presented with large volumes of electronic documents to review, and this is where tools to find those documents relevant to the issues are necessary, as they save costs.

Court practice notes in each Australian jurisdiction do encourage e.discovery. Since almost all evidence is created electronically, e.discovery is now the only way to deal with electronic evidence. Technology now enables “predictive” coding and “concept searching” which allow lawyers to find relevant documents in very large repositories of data.

The technology is improving all the time and the cost is decreasing as the use of such technology becomes more widespread.

Briefs to counsel will be made available by way of a user login to the documentary evidence, and the brief itself will contain links to the documents as they are referenced in the brief. The case will be prepared using online tools which will assist the legal team to create a case overview as they go. Indeed, such collaborative tools are used now, and their use is becoming more widespread, these will be standard tools for any litigator in the not too distant future.

As discoverable materials are prepared electronically, and witness statements are not only made available electronically (they are certainly always created in an electronic format) but are hyperlinked to the exhibits, then e.trials will be par for the course.

All material will need to be available to the court electronically, whether they be simple, small matters, or large, complex matters.

The starting point is filing documents

electronically. Few courts still provide electronic filing capabilities and if they do, this extends to the originating proceeding and perhaps some of the pleadings.

Documentary evidence is generally presented during the hearing and often handed up in hard copy. In the future, there will be the ability for lawyers to upload evidence to the court beforehand, so evidence can be presented to the court from a virtual location, much in the same way as documents are uploaded to various repositories in the Cloud for retrieval at the moment.

Courtrooms of the future will be equipped with basic equipment such as monitors for display, internet connectivity so documents can be accessed from within the courtroom and/or remotely. Lawyers of the future will use such equipment during their evidence or civil procedure courses at law school.

Documentary evidence will be available electronically, so as witness statements and affidavits are prepared, these will automatically link to the image or “native” file for the document. Digital transcripts will be available and if transcribed, will be cross referenced to the video, audio and text of the transcript.

Video conferencing, although widely used now, will be available for those witnesses who are unable to travel large distances and are able to appear remotely. The use of streaming video across the internet means cost effective video is much more accessible.

Judges will interact with parties using technology currently used in social media, with access permissions determined by the court.

Interlocutory orders, submissions and so on, will all be able to be uploaded to the court site, and links will be able to made to documents, or parts of documents, for the judge to review.

In this way, the judge can have full access to the case, see all material in relation to the case, and a full audit history of what has transpired. This will be particularly useful if parties change and the judge hearing the matter changes along the way.

The end result will be the more efficient use of technology to enable documents to be accessed quickly and easily, with cost savings to the litigant.

Your digital evidence and e.discovery experts. e.forensics early case assesment e.discovery document review secure online dataroom subjective review bureau services e.courts

SYDNEY | MELBOURNE | BRISBANE | PERTH info@elaw.com.au

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elaw.com.au

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1300 136 993

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CONNECT TO COLLABORATE 10 TIPS TO IMPROVE COMMUNICATION IN YOUR FIRM

By Damian Huon CEO, Huon IT

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ollaboration is about more than correspondence. It is what transforms passive, everyday contact into active engagement between your colleagues, clients, and even your competitors.

In times of uncertainty, firms are increasingly focused on leveraging knowledge and resources as a way to drive new value for their clients, streamline processes and improve utilisation.

In a global study by Filigree Consulting in 2012, businesses that improved their collaboration processes reported: • Two times faster, more informed decisionmaking • Two times enhanced customer experience • Up to two times higher productivity in meetings • Up to three times accelerated rates of innovation So how are those businesses actually achieving such impressive outcomes?

The ability to collaborate effectively used to be a personality trait. Today however, smart technology makes it easier than ever to exchange information and grow ideas cooperatively.

THE FOLLOWING TEN TIPS OFFER COLLABORATION IDEAS TO IMPLEMENT WITHIN YOUR FIRM:

1. EXTRANET: MOVE BEYOND EMAILS FOR CLIENT COLLABORATION Some have them, and a few have it really right.

However for many firms, extranet plans sit firmly in the ‘too hard basket’.

But not for long. As competition mounts and client demands grow louder, a client portal will soon become a standard expectation.

A successful extranet needs to be more than an online file room, with truly useful content presented in a user friendly interface. The ones that fail are typically poorly organised and messy, making information hard to find.

With the right execution, the potential is vast – from directories and matter information, through to project management tools outlining due dates, and of course, file sharing.

For major clients in particular, on demand

portfolio reporting is far more efficient than requesting individual file reports.

Extranets also provide tangible benefits internally. Staff spend less time sending and resending copies of files and when there are multiple edits of a document floating between parties, an extranet ensures there’s no version confusion.

Whether you outsource or have the in-house expertise to build an extranet yourself, key features to consider are: • Security: your solution should allow you to customise clients’ access levels via secure log ins.

• Integration with billing: providing an extra level of transparency, clients can easily view how much time has been accrued.

• Integration with Document Management Systems: storing documents in two places will cause headaches, so ensure the two can work in harmony.

• User friendly: The platform should be mainstream and uncomplicated for clients to access. Systems that require users to download special software may discourage use.

• Ongoing management: An extranet is certainly not a ‘set and forget’ system. They require ongoing maintenance, so clear ownership and responsibilities should be defined.

2. VIDEO CONFERENCING: FACE-TO-FACE COLLABORATION As the cost drops and quality rises of equipment and internet services, video conferencing is fast becoming an acceptable alternative to face-to-face meetings.

Reduced travel is a major benefit, with many firms reporting a return on investment alone through holding Partners meetings via video conference. It also means meetings are not at the mercy of airlines, hotels, venues, or the weather, and because there is less time spent travelling your staff have more time to build business.

Also an excellent training tool, video enables staff at multiple branches to collaborate and connect in real time with the trainer, meeting organiser or peers. Training sessions can be also recorded, archived and used repeatedly across your workforce.

“AS THE COST DROPS AND QUALITY RISES OF EQUIPMENT AND INTERNET SERVICES, VIDEO CONFERENCING IS FAST BECOMING AN ACCEPTABLE ALTERNATIVE TO FACETO-FACE MEETINGS.”

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Whilst it may never quite provide the personal touch and rapport that a good old fashioned handshake and meeting offers, video conferencing is certainly here to stay.

3. UNIFIED MESSAGING: A SINGLE PLATFORM TO MANAGE MULTIPLE COMMUNICATION CHANNELS Nowadays we are inundated by so many different mediums, keeping on top of messages can be a job in itself. We must continuously monitor emails, mobile and office-line voicemails, SMS’s, letters, faxes and perhaps even video messaging, to ensure nothing slips through the cracks.

Unified messaging provides the opportunity to combine all of these disparate systems into a single interface, enabling all types of messages to be accessed on any device, anywhere. For instance if a Partner is interstate for a week and a client leaves a voicemail on their office phone, they’ll receive it immediately on their mobile. There are even options to set receipt priorities, so messages from important contacts can go straight to the top of the queue.

4. INSTANT MESSAGING: MORE THAN LOL’S AND EMOTICONS When most of us think of Instant Messaging (IM), we think of teenagers chatting online - but in recent years, instant messaging has grown up into a viable, fully fledged business tool.

So how is it used in practice?

A safe first step is for internal use only. Staff across any branch can view their colleagues’ presence (available, away from desk, etc), and instantly send a fuss-free message. There are dedicated softwares available, or it can be integrated with Outlook.

Like any technology, IM introduces a raft of new issues – good and bad: The Pros: • Increased visibility across your dispersed workforce.

• Ease of use to send and reply in a fast, basic manner.

• Puts an end to phone tag and lengthy backand-forth email chains.

The Cons:

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• Confidentiality requirements mean that IM certainly isn’t the platform for communicating sensitive data.

• IM is in opposition to most firms’ “file everything” policy. While you can archive message threads, it is not ideal.

• IM can be impersonal, and its informal nature lead to unprofessionalism 5. OUTLOOK TEAM TOOLS: MORE THAN AN EMAIL SYSTEM One of the most effective and inexpensive collaboration tools is already on your desktop: Outlook. So much more than an email tool, Outlook is also a task manager and meeting organiser.

Got an important project requiring input by a group? You can assign responsibilities to yourself and others using Outlooks Tasks, which appear as events in your to-do list. The task’s status, priority and percent-completion rating can be updated throughout the duration of the project. You can send a status report to individuals when the task or project is complete, as well as keep track of basics such as time spent on the task and expenses.

You delegate an email, too, by simply forwarding it and assigning a flag for yourself and the recipient. This means you will receive a notification to follow-up its progress, and the recipient will receive a reminder when it is due.

When creating a new meeting event in Outlook calendar, you can link the meeting request to a Meeting Workspace website, where you can share agendas, share pertinent documents and track meeting results.

6. WEB CONFERENCING: TAKE ONLINE MEETINGS TO A NEW LEVEL Another form of collaboration is web conferencing, which really raises the bar when it comes to holding interactive sessions with dispersed colleagues and clients. And unlike many other solutions, it doesn’t require new infrastructure or big investments.

The meeting organiser and participants can meet online, with a raft of tools on offer. They can video conference, broadcast views of their desktops, and even take control of each other’s keyboard and mouse. These sessions can be recorded for sharing and playback later.

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One of the key advantages is simplicity – anyone can participate via any device.

Meeting attendees don’t need to pay for special software to get it running; they simply download a free receiver or app on their on their PC, Mac, iPhone, iPad or Android, and can even ‘call in’ via telephone if preferred.

While there is a plethora products on the market, including various free options, ensure you do your homework around corporate solutions. Many solutions don’t have sufficient security measures in place, like user accounts, central management, control of user privileges, and authentication based on a unique Meeting ID and option passwords.

A solid choice is Citrix’s GoToMeeting.

This is ideal for small meetings with up to 25 attendees, or you can scale up with GoToWebinar for large presentations of up to 1000 attendees at once.

7. SHAREFILE: A SAFER VERSION OF DROPBOX, BUILT FOR BUSINESS DropBox, an online file hosting service, has taken the world by storm. It is fantastic for storing and sharing personal photos, documents and videos in the ‘Cloud’.

But what about using it for work purposes?

Millions of people worldwide do, so it’s likely your staff do. If they want to work on a document from another device, it can be easier to put a copy into their DropBox than access your system remotely. This means suddenly you have multiple versions of a confidential document in an unmanaged, external system on numerous personal devices with big security risks.

If your staff do want that flexibility, then something like Citrix’s ShareFile Enterprise will do the trick. Unlike consumer tools, it empowers IT with the ability to control and manage the system so that your intellectual property is secured. It includes tools such as reporting and auditing to monitor who, what, when and how corporate data is accessed, and even lets IT remotely wipe files and company data from devices that have been lost or stolen.

8. INTERACTIVE WHITEBOARDS: NOT JUST FOR THE CLASSROOM Interactive whiteboards (or ‘smart boards’) have been around for a long time in schools, but are truly undervalued in the business context.

A convergence between the traditional whiteboard, computer and projector, users can open documents to review, add notes, highlight text, and more on the board. At the end of the meeting, work is saved and distributed electronically - which means no more wasting time transcribing or taking photos of mind maps.

However one of the biggest advantages is the ability to provide remote access to the session. Staff or clients from anywhere in the world can connect via their PCs, tablets or even smartphones to participate in the meeting.

So whilst the interactive whiteboard is no longer breaking news, the benefits are still exciting. With real potential to increase meeting productivity, overhaul training sessions, and even reduce travel time and expenses, they are certainly worth a look.

9. INTERNAL FACEBOOK GROUPS: A NEW LINE OF COMMUNICATION WITH GEN Y’S Social media may not be for everyone; however it is second nature to the streams of employees currently joining the workforce.

Instead of resisting Gen Y’s online habits, why not leverage the trend and establish a new channel of communication?

Facebook for business isn’t just about marketing through a public page. ‘Secret Facebook Groups’ can be created for teams to use internally, including shared document creation where the whole group can have input on one document, and even edit what other members have contributed.

But how ‘secret’ is it really? No one except the members can see, access or even search for the group. There will be no trace of it on your staff’s personal or business Facebook profiles, so reputations aren’t at risk. It’s simply a progressive way to encourage internal collaboration and tap into a younger demographic of professionals.

“FACEBOOK FOR BUSINESS ISN’T JUST ABOUT MARKETING THROUGH A PUBLIC PAGE. ‘SECRET FACEBOOK GROUPS’ CAN BE CREATED FOR TEAMS TO USE INTERNALLY, INCLUDING SHARED DOCUMENT CREATION...”

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10. IMPLEMENTING THESE SOLUTIONS: STRATEGIES TO MAXIMISE YOUR INVESTMENT All innovations – big or small – need a business-centric approach.

Investment in strategy should determine technology choices, not the other way around. There is no use upgrading simply for the sake of having the latest and greatest – there must be a true business case, valid enough to carry you through future change management challenges.

A key part of this is top-down support, which doesn’t end with signing a cheque.

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Stakeholders from a diverse cross section of the firm should be involved at every step, to ensure business needs are addressed and change management taken seriously.

Beyond the upfront investment of the implementation itself, think of the long term risks; failed initiatives can severely damage morale, productivity and client service levels. So before you embark on any new project, understand the true commitment of time, effort and resources required to ensure it will be a success both tomorrow, and in years to come.

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LEGAL TECHNOLOGY THE PERSISTENCE OF PAPER AND THE RISE OF SMALLER FIRMS

By Julian Lambert Operations Manager, Law In Order

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egend has it that some years ago a well known Supreme Court Justice looked across his court room packed with lawyers, computers and folders and pointed to his temple saying: “You all have the knowledge ‘out there’….Your job is to get it ‘in here’”. These words sum up the challenge facing litigators of preserving, identifying, culling and presenting electronic information to the judiciary in a digestible form.

This is particularly difficult in the digital age given that almost all corporate communication is created and stored electronically. It follows then that the response to the challenge of managing the increasing mountains of information is to turn technology on itself. But despite advances in computer technology, the Australian legal profession has been relatively slow to embrace the technology designed to manage litigation documents. This is now changing due to the willingness of lawyers and courts to use technology to manage litigation documents, the rising popularity of tablets as ‘tools of the trade’ and the improved affordability of litigation support software.

The 2011 Australian Law Reform Commission Report 115 (ALRC Report 115) ‘Managing Discovery: Discovery of Documents in Federal Courts’ asserts that discovery in Federal Court proceedings anecdotally accounts for about 20 percent of total litigation costs.i The report also argues there is greater scope for Australian lawyers to use technology to significantly reduce this cost. Some Australian Judges who have experienced the perils of large scale litigation acknowledge the role technology plays in alleviating some of the difficulties and reducing cost. In 2009, Einstein J observed that: “In a case with voluminous documents... electronic discovery will mean that the overall costs to the parties of the discovery and inspection process will be reduced.”ii

SO WHAT STANDS IN THE WAY? Many Australian lawyers perceive transcript management, trial presentation tools and discovery review platforms such as Relativity and Ringtail, as only useful in matters involving large document volumes (ie more than 10,000 documents). Historically at least, the only time a

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lawyer will use such tools is if they are involved in large, document intensive litigation so it is not surprising that many elect not to use technology and instead revert to familiar methods. Because these tools are used intermittently, lawyers sometimes find it challenging to master new technology while managing the legal substance and logistics of their client’s case. This provides an additional disincentive to use available litigation support technology.

Those outside the top 20 Australian law firms generally do not have in-house access to these tools or the specialists that support them. The net result is that many Australian lawyers view litigation support technology as expensive, complex and only applicable to large matters.

Practice Notes Over the last 15 years, the Federal Court of Australia and most Supreme Court jurisdictions have issued their own ‘litigation technology’ Practice Notes. These provide parties with a basis upon which to agree how their discovered documents will be numbered, described, exchanged and provided to the court.

Many courts encourage parties to use these Practice Notes even if the number of documents involved is small. For example, The Federal Court’s CM 6 of 2009 encourages parties to utilise the checklists and protocol provided when they have as few as 200 documents between them.iii Despite the encouragement of superior courts, lawyers’ perceptions about when to use technology, the cost involved and prior negative experiences often stand in the way.

NSW Supreme Court Practice Note SC Eq 11 There are signs of a willingness to strengthen at least one Australian Practice Note. In March 2012, New South Wales Supreme Court Practice Note SC Eq 11 (SC Eq11) went into effect and applies to all new and existing proceedings in the Equity Division, except in the Commercial Arbitration List.iv The stated purpose of SC Eq11 is to achieve “the just, quick and cheap resolution of the real issues in dispute in the proceedings”.

Under SC Eq 11, parties are required to provide their evidence to the other side prior to the Court making any orders for discovery unless there are “exceptional circumstances”. SC Eq11 also states that the Court will not make any order for

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disclosure unless it is “necessary for the resolution of the real issues in dispute in the proceedings.”

By doing away with the general presumption of discovery or disclosure, the NSW Supreme Court has taken a significant step forward in reducing the time and cost associated with discovery in the Equity Division.

Evidence Acts One argument posited by some Australian lawyers is that it is not possible to rely upon electronically stored information (ESI) as evidence because they cannot be deemed ‘original’. This is of particular concern to criminal lawyers for whom the veracity of original evidence is critical.

This, coupled with the general reluctance to depart from standard practice by adducing electronic material in place of hard copy originals, often sees paper copies win out in court. The Evidence Act 1995 (Cth), (the Act), should theoretically assuage this reluctance.v The Act defines a ‘document’ as “any record of information” which can reliably be taken to include electronically stored information and applies to all proceedings heard in the Federal Court of Australia or an ACT court and is mirrored in the Northern Territory, Victorian, New South Wales and Tasmanian Evidence Acts.vi Section 51 of the Act abolishes the common law rule that original documents should be tendered in evidence to prove their contents. Pursuant to s48 of the Act, a party may adduce evidence of the contents of a document by several means including tendering a copy of a document, vii a transcript of a recordingviii or documents produced by use of a device.ix On the face of it, s48 does away with the need for parties to produce original paper documents when adducing evidence at trial and facilitates the tendering of copies of electronic documents where the original resides on a computer. Despite this, many lawyers continue to rely on hard copy originals in preference to electronically stored information (ESI).

LEVELLING THE ‘PLAYING FIELD’ Smaller Firms There are numerous signs that increasing numbers of smaller firms are utilising the same tools traditionally used by top tier firms to manage and discover documents electronically. In the last twelve months at Law

AUSTRALASIAN LEGAL BUSINESS TECHNOLOGY SUPPLEMENT - VOL 3

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In Order (LIO), we have witnessed a significant increase in the number of small and boutique law firms using the Relativity document review platform to manage discovery, witness bundles, briefs and other key document sets. The days when top tier firms were the dominant users of technology to manage discovery are over and the legal technology ‘playing field’ appears to be levelling.

Smaller firms have the advantage of being able to adopt new technology solutions quickly and avoid the overheads associated with purchasing and supporting their own in-house litigation review platform. Because many litigation review platforms are available on a hosted ‘user pays’ basis, they are well suited to smaller firms who only need access to such software tools intermittently and do not want to become ‘locked in’ to a particular software platform.

Smaller firms have proven to be enthusiastic users of these tools because they provide them with the ability to contain discovery costs and streamline their document review to the same extent as a larger, better resourced opponent.

Smaller firms are also beginning to see that matters involving smaller document volumes (ie less than 2,000 documents) are also often well suited to litigation review software as they provide a basis from which to produce discovery lists and link documents facts, issues, and events and distribute electronic briefs. They also provide a platform from which to reap downstream benefits such as efficient production of court and appeal books and facilitate electronic evidence presentation during trial. eCourts Electronic court rooms (eCourts) have traditionally been the province of large litigation involving multiple parties and tens of thousands of documents or more. This is also changing with the broadening of the definition of eCourts to include the use of simple tools such as hyperlinked Excel spreadsheets to manage key documents. This provides lawyers with a familiar interface requiring very little investment other than the time spent by a paralegal linking documents to an index.

Tablets (usually iPads) are also finding their place as a popular eCourt tool for the management of witness statements, exhibits and court books. Applications such as LIOdocs

are providing a low cost, portable and highly secure environment in which these and other key documents can be stored, marked up, shared and presented in court. The popularity of tablet devices among counsel means that LIODocs and similar solutions are ‘low hanging fruit’ for solicitors seeking a low cost, secure solution with which to share key documents with counsel and others, and counsel themselves who wish to present documents electronically in court with virtually no training and at low cost.

Conclusion If the government and the legal profession are to contain discovery costs they must treat both the causes and symptoms of Australian litigators’ reluctance to use specialist litigation technology.

Fortunately there are signs that change is afoot as evidenced by ALRC Report 115, changes to the Commonwealth Evidence Act, the improved affordability of legal technology tools and the increased uptake of legal technology services by smaller law practices. However more must be done to assist lawyers to use the available tools and leverage the skills and experience of litigation technology specialists. This will bring about the lasting change and litigation cost containment sought by litigation lawyers, their clients, the courts and government.

ENDNOTES i Australian Law Reform Commission Report 115 Managing Discovery: Discovery of Documents in Federal Courts in facilitating the use of technology. p.78 ii Richard Crookes Constructions Pty Limited v F Hannan (Properties) Pty Limited [2009] NSWSC 142 iii www.fedcourt.gov.au/how/practice_notes_cm6 iv www.lawlink.nsw.gov.au/practice_notes v Evidence Act 1995 (Cth) vi Evidence Act 1995 (Cth) S48 (1) (c) vii Evidence Act 1995 (1) (b) viii Evidence Act 1995 (1) (c) ix Evidence Act 1995 (1) (d)

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