Embracing Sustainable Litigation

Jack Gilroy

To print, or not to print? That is (rarely) the question. Whether spurred by environmental apathy or pre-trial pressures, it has remained a damning indictment upon the legal industry that so few routinely turn their minds to this consideration.

On one hand, it is important to recognise the commendable inroads made by industry heavyweights insofar as reducing pre-litigation paper wastage, particularly in the last ten years. Certainly, the notion of ‘wasting paper’ has been well ingrained into the psyche of the ordinary person as a generally undesirable prospect.

However, the turn of the decade presents the legal industry an opportunity to lead by example. Australia’s tragic bushfre season and the international focus on climate change have created an unprecedented social and political climate, one which promotes environmentalism whilst, incidentally, afording industries an opportunity to appeal to the public interest.

Accordingly, this article will endeavour to acknowledge the inroads made across the private and public legal sectors to reduce paper wastage in preparation for litigation, but will simultaneously consider the ‘uncharted territory’ faced by the industry in the 2020s.

“Though underlined by cynicism, one thing is certain: reducing paper wastage in the present environmental climate is an unprecedented opportunity for frms to market themselves as having considered the environment – irrespective of whether the ‘consideration’ is ostensible or legitimate. In any case, it serves as a means to an end.

Law Firms It seems prudent to begin with the most egregious ofenders, the denizens of the print bay, the champions of ‘Ctrl+P’. For law frms, endeavours to become ‘paperlite’ are hindered by a historically entrenched reliance on paper.

Consider the court book – the most notorious ofender. High-end litigation often calls for multivolume court books, and the meticulous collation of hundreds of fles into a spiral-bound folder of your choosing. Subject to amendment at any point prior to fling, it’s a tall order to expect a paralegal or graduate lawyer to organise a fawless court book in one attempt. Even after the fnal product comes to fruition, there remains the expectancy to print of a copy for every party privy to the matter. Herein lies an issue.

However, a stratum of law frms within the last decade have illustrated some semblance of a willingness (and ability) to adopt policies geared towards lessening their carbon footprint, evident, for instance, in the formation of bodies such as the Australian Legal Sector Alliance (‘AusLSA’). AusLSA’s ‘mission’ is to ‘work collaboratively to promote sustainable practices across the legal sector’. Its report titled 2019 Legal Sector Sustainability Update notes a 25% decrease in paper usage across reporting members since 2015.

It might reasonably be contended by some that the implementation of environmental policies amongst law frms is not so much impelled by ethics as it is by the potential enhancement of a business’ brand and reputation. For instance, the Chair of Citigroup, Sam Mostyn observed that AusLSA’s Legal Sector Sustainability Report would be used as a ‘test’ that businesses would incorporate in determining which frms to brief and which individuals to comprise panels. Though it may appear insincere, tangible marketing benefts incentivise frms to pursue environmental policies, such as paper reduction, which, alternatively, would be economically fruitless.

If the last decade has illustrated that law frms have the capacity to sift through their ‘To-Do’ piles and target (maybe unenthusiastically) paper reduction, amongst other environmental issues, then what can we expect from the next ten years? Law in Order posits that realistic goal-setting, employee awareness and a willingness to embrace technology are three key focus areas for law frms attempting to go ‘paperlite’. Embracing ‘eBriefs’, capitalising on technologicallysavvy paralegals and law graduates, contracting with legal technology experts, and utilising environmental policies as an edge in a competitive market are perhaps some, of many, possibilities available to the sector. Though underlined by cynicism, one thing is certain: reducing paper wastage in the present environmental climate is an unprecedented opportunity for frms to market themselves as having considered the environment – irrespective of whether the ‘consideration’ is ostensible or legitimate. In any case, it serves as a means to an end.

The Courts and Judiciary The courts and judiciary are perhaps vested with the most onerous responsibility to act as a role model in the public eye. Naturally, the extent to which the courts can push for positive change is contingent upon adequate resourcing; limited funding leads to limited change. An unfortunate corollary is that, as observed by Judge Philip Misso at the Supreme Court of Victoria’s ‘Paperless trials and in-court technology’ seminar, ‘the application of technology in the courts has been slow’. In 2014, the Sydney Morning Herald released an article observing that ‘if you were to stack every paper document held in the storage facilities of Australia’s Federal Circuit Court and Family Court, they’d stand about 24 kilometres high’. The cost of storing these documents: approximately $1 million, annually.

However, recent technological developments in Australia’s judicial system mark an important step in the endeavour for more sustainable litigation, imposing new court-mandated expectations upon the private sector.

For starters, the inception of electronic trials (‘e-trials’) has given substance to the prospect of paperless litigation. As noted by Justice John Dixon, the courts generally are more partial to ‘develop protocols to conduct e-trials’. For instance, the Common Law Division of the Supreme Court of Victoria made the recent shift to electronic fling in 2018. Shifting jurisdictions, the Perth Magistrates Court in 2014 became Australia’s frst criminal court to operate entirely from electronic records.

Most signifcantly, supplementary to the introduction of e-trials, is the embracement of electronic court books and eLodgement. The prospect of removing, from the law frms or the Bar, any obligation to print of lengthy court books is a milestone for the legal sector and sustainable litigation.

So, what’s next? Though historically the courts’ welcoming of technology has been far from expeditious, the judiciary appears more partial than ever to electronic fling and court books. The recent introduction of the High Court Amendment (Electronic Filing and Other Matters) Rule 2019 amends the High Court Rules 2004 to make provision for the electronic lodgement of documents

As the industry stands on the precipice of unchartered waters, to what extent will it honour its commitments to engendering environmentally sustainable litigation in the 2020s?”

to commence proceedings, fle documents and pay fees without having to attend the Registry. Such landmark amendments ought to normalise the accretion of technology usage in the courtroom, efecting a series of changes (such as encouraging the judiciary to engage with tablet devices) which inevitably lead to an increased usage of semi-interactive court rooms such as the Federal Court’s ‘eCourtroom’. Importantly, the useful by-product of jumping these fnal technological hurdles is a removal of the industry’s tendency to rely on thousands of hard-copy documents.

Now is the Time to Act As the industry stands on the precipice of unchartered waters, to what extent will it honour its commitments to engendering environmentally sustainable litigation in the 2020s? Frankly, the time for these processes to be implemented is well overdue. If the legal industry has the capacity to deconstruct the intricacies of technology and intellectual property law on a daily basis, then let us hold onto the hope that the industry can employ simple technology to move past its archaic obsession with paper.