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?”

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”).

Further, an electronic casebook takes up no space in often cramped chambers, is easily transportable and can be accessed from any location that has the internet if desired. The ability to hyperlink submissions to particular documents is likely to be extremely helpful to the judge when it comes to writing his or her judgment in that it enables the judge to readily go to a document that is being referred to without wearily getting up from his or her already cluttered desk to retrieve folder number 34.

Barriers to use of electronic casebooks in New Zealand Courts

Despite the clear advantages utilising electronic casebooks, there are several barriers that make the use of electronic casebooks difficult in New Zealand.

Entrenched practice

First, if an electronic casebook is to be useful in a trial the parties and the judge must be comfortable with and agree to its use. In particular, if the judge insists on being taken to hard copies of documents, all the work put into an electronic casebook and the time savings that can be achieved through its use will be lost. If the bundle is prepared correctly and the hyperlinks in it reference the correct document then, for the user, it should be only a matter of clicking on the relevant link. In my view, counsel that are willing to try and master presenting a case from an electronic casebook are likely to be at an advantage over those who do not do so.

Technical challenges

Second, putting together an electronic casebook in accordance with the electronic protocol and making sure that it works is not a straightforward task unless one has a relatively high level of technical IT knowledge (it is not the intention of this article to delve into what those technical challenges are). Ensuring the casebook is maintained throughout the trial as “supplementary documents” become relevant is quite an exercise with a number of challenges but perhaps not as administratively burdensome as updating multiple copies of a hard copy casebook.

In large commercial trials in our main court centres, the parties will often be represented by large commercial law firms that have access to numerous junior solicitors, large IT teams and expensive software that helps to facilitate the process of getting numerous documents in disparate forms (for example, emails, attachments to emails, PDFs, Excel Spreadsheets, Word documents, paper documents etc) into some semblance of date order in PDF format, which ultimately must be paginated and assigned a file name that exactly matches the page number in the bundle.

However, such resources that are available to a large commercial law firm are often not available to the vast number of practitioners in smaller firms around New Zealand, and may not be affordable to the clients that they often represent.

In a recent matter in which I was involved as junior counsel in a regional High Court, the matter had a long backstory and several rounds of litigation in different forums. Each round of litigation had a separate discovery process and there were documents all over the place in various formats with various numbers and identifiers assigned to them. The instructing solicitor was a small firm and insofar as this case went consisted of the instructing solicitor and some help from his sole legal secretary. In other words, there were none of the small armies of junior solicitors or IT and other resources available that would be available to larger firms to deal with a case involving over 10,000 pages of material. Nevertheless, with a very small team of three lawyers with some technical know-how and co-operation between counsel and solicitors for the parties, the trial was efficiently run within the allocated 10 day timeframe.

Outsourcing

While some of the technical IT tasks, such as converting emails to PDFs at the initial discovery stages, can be outsourced to third party service providers (at significant cost), a common bundle in my experience is rarely a static thing that is happily tidy and complete before a trial begins. In the real world it is something that continuously evolves for several months before and during trial as counsel learn the evidence, further discovery occurs, and attempts are made to deal with the issues that arise as the trial progresses.

If an electronic casebook is to be used, there is a real need for at least one of the counsel involved in a trial to have the IT knowledge and skill to be able to deal with the task of organising and managing the documents with a high degree of particularity and care, preferably from the discovery stage through to the end of trial and to assist with resolving any technical issues that may arise. While it is a matter for agreement as between counsel and client, junior counsel may be willing to charge a reduced fee for this type of service that aligns with what a third party provider might charge.

Counsel with these skills do however add value over and above what a third party provider might be able to achieve. It cannot be expected that (probably non-legally trained) third party service providers who are not familiar with court process or practice or the legal issues in the case will know what the relevance of the documents are to any issue. Such providers cannot be immediately available to solicitors and lead counsel to deal with issues that arise in the case or add documents where necessary to the bundle as their relevance becomes known. This is so particularly late at night during a trial if learned senior counsel determines that there is a critical point that must be addressed the following morning.

Further, there is a real issue of control of what admissible evidence goes into and what evidence stays out of a casebook, which can be the subject of intense argument between the parties. Such control can easily be lost if the administration of the bundle is outsourced. Equally importantly, the lawyers for the parties ought to take a pragmatic and sensible approach to reach agreement as to how documents over which there is no dispute are to be identified and added to the common bundle and by whom.

The fact that a common bundle evolves creates a further challenge in that the judge will have his or her own copy of the common bundle that may or may not be marked up, and which must be updated. As the system works at present, the High Court Registry will not accept documents provided by “cloud” services such as a link to a folder on Dropbox and USB’s must be handed up to the Registrar, who then must work out how to incorporate that into the judge’s copy of the bundle without overwriting carefully written notes or highlights. It can also be difficult to know exactly what the judge has or has not been given due to the passing of documents through several hands. Implementation of a well thought out service that enables documents to be directly uploaded to the Court, and that tracks which files have been added so that any new documents are easily available and identifiable to the judge without having to pass through various hands would certainly assist with this process.

In the above circumstances, (often junior) counsel who are across the issues with a combination of legal and IT knowledge can become an invaluable resource, add significant value for the client, assist the judge and ensure that the trial is able to run efficiently and to be completed within the allocated time.

Hardware in some courts

A fact of life is that many (regional) courts in New Zealand are not designed for or have the necessary hardware to run a commercial trial in which there are a large number of documents, let alone in electronic form.

The Ministry of Justice does offer a service known as “Clickshare”, which enables a device to be plugged into a laptop from which the casebook can be navigated and displayed on a screen in the court. However, in my recent experience the screen that was available in court was one large television screen on a trolley in one corner of the courthouse, barely able to be read by anyone. In another, the television screen was located behind the witness requiring the witness to turn a full 180 degrees from the examiner to see what was on it.

In a recent trial in which I was involved, I had to seek out a store on the Saturday before trial (fortunately, after much searching, there was a shop that sold what was needed in this town) and personally buy the missing hardware required, and to lend my own second computer screen to the court for use by the witness, while another screen was commandeered from one of the court staff’s desks, who reluctantly relinquished possession, for use by the judge.

The above state of affairs is entirely unacceptable in 2021. The basic hardware required to enable a courtroom to effectively use an electronic casebook is not complicated or particularly expensive. It requires a laptop connected to three (or more if desired) computer screens - at least one for the witness, one for the judge and one for the other people in Court; and a desk (you may be surprised, but some witness boxes lack such a technically advanced piece of equipment as a desk) to put the screen on. Laptop aside (which most lawyers will already have), I estimate the total cost to the Ministry of Justice per court for the necessary hardware (including a desk) to be about $1,000 but that is for others (probably accountants) to determine. As pointed out above, that sum is a pitiful amount in comparison to the saving in counsel and judicial time that the use of a carefully prepared electronic casebook can facilitate, and which would be passed on as significant savings for the parties.

* Mark Robertson practices as a commercial barrister in New South Wales and New Zealand, as well as having been admitted as a solicitor in England and Wales. He appears in mediations and arbitrations and has significant experience in international arbitration. Mark can be contacted at mark@markrobertsonlaw. co.nz. http://www.8wentworth.com.au/barrister/marka-robertson/