Electronic Casebooks and Access to Justice: Are We All on the Same Page? By Mark Robertson*
When I hear the utterance of the words “electronic casebook”, I also hear many counsel (and perhaps out of earshot - members of the judiciary) swear – but not in the form of an affidavit. For many, the fear of use of technology in a trial; the loss of a sense of familiarity of the way things have always been done; and a fear of “technical difficulties” that might arise is enough to drive some practitioners towards doing things the “old fashioned” way. To some extent that is justified, but it may come at considerable cost to the parties who seek justice from the Courts. Granted, there are certain advantages in having documents in folders in paper form. Reading paper documents can be easier on the eye; there is some form of security in being able to physically cling to a document while under fire; or to nonchalantly turn the pages of some incomprehensible document, while frantically trying to think of what to say next. There are cases in which use of paper to a greater or lesser degree is appropriate, however, in a case where there are many witnesses and sometimes hundreds or thousands of documents and pages of material that will be referred to (or not), there are major disadvantages in using a hard copy paper file. One of the most important things in a trial (particularly civil trials) is to ensure that counsel, the witness giving evidence, and the judge are all looking at the same page. If that does not occur, critical points of evidence and argument may be completely lost on everybody. An enormous amount of trial time can be used up trying to make sure everybody is on the same page. Advantages of electronic casebooks Take the scenario where there are 20 or so folders of hard copy material, each containing 250 pages (the printing of which in multiple copies costs many thousands of dollars). Counsel is in the flow of cross examination. At some point, an inconsistent statement arises. Counsel asks the witness to confirm their evidence and then asks the witness (many of whom are not familiar with appearing in Court), “Can you please go to page 303.0743, in folder 3?”
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The witness must turn around or to one side and rummage through multiple boxes of documents to find the appropriate folder (in some courts there are no shelves – just an old witness dock, perhaps built from Kauri during the times when hangings occurred). The previous witness did not put that folder back in the right place. The witness says, “I cannot find that folder”, the Registrar jumps to assist. Eventually, the witness says, “I’ve got it!” and the judge at some stage chimes in and says, “Yes, I have that now”. Witness says, “Sorry, what was the question?" Counsel says, “I’m sorry I meant folder 4, page 304.0743..." Hearing dates are scarce and trial time is limited. Trials are also expensive. Every extra day of a trial adds significant cost for the parties. It is of great importance that trials are completed within the allocated time and that cases are heard within a reasonable time from filing of proceedings. Trials that overrun cause many problems (forgetting being one), particularly if further hearing time cannot be found within the next six months. And delays in getting a matter heard and resolved may cause considerable injustice to the parties. As many will be aware, various courts in New Zealand have published electronic casebook protocols and practice notes that must be complied with. If prepared correctly in accordance with the courts’ electronic protocols, and with the appropriate hardware available in Courts, an electronic casebook allows a document to appear almost instantly and simultaneously on a screen in front of the witness, the judge and counsel. This enables a trial and to flow and can drastically reduce the total amount of hearing time required. Another major advantage is that a properly prepared electronic casebook enables documents to be text searchable, which can greatly assist counsel in locating documents when preparing for trial, drafting submissions, or during a hearing when time to locate a particular document and to deal with issues as they arise becomes critical. It is not an unfamiliar experience for counsel to think, “I know there is a document that says X somewhere,” in response to a particular point, and then frantically ask learned junior counsel to find that needle in the haystack (the expectation usually being “now”).
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