Richard Brockbank is a solicitor and Managing Director of Oxford Law and Computing Limited, the suppliers of the Openlaw Litigation Software. He can be contacted on 01235 203690 and at rjb@openlaw.co.uk. Oxford Law and Computing’s Web site is at www.oxfordlaw.co.uk
In the SCL Magazine of December 1999 (Vol 10, Issue 5), Richard Honey reported on his research into the use of litigation support systems in an article entitled ‘Are Litigation Support Systems Providing Any Support’. His article relied on statistical analysis of 90 replies to questionnaires sent to 280 solicitors specialising in construction law.
The key points from Richard Honey’s survey included these:
The benefits are efficiency, effectiveness, mobility, saving costs and saving space in that order. The most significant barrier is cost – two-thirds of the respondents felt that their cases were too small to justify the use of a database The ‘high cost of systems’, the ‘front-loading effect of implementing a system’, and ‘lack of expertise’ were cited in particular.
‘Cost and technology are the biggest barriers to wider use at the moment, illustrating that it is the suppliers who can have the greatest effect on the market, if the products and their value improves.’
‘the uptake of litigation support is relatively high and set to grow despite a lack of action from bodies such as SCL and LCD, and the observed gap between the needs of the lawyers and the products offered by supply-side.’
Whilst I do not challenge Richard Honey’s reporting of these findings, my position is that the benefits of litigation support systems should not be the preserve of the favoured few, and that neither cost nor technology are actual (as against perceived) barriers to their use by the many. This view from lawyers amounts to a challenge to me, as a supplier, to explain my contrary view as to what the barriers are, and to suggest how to surmount them, whilst commenting on the positive messages from the research for all firms, especially those that were not involved.
The business of Oxford Law and Computing includes developing, selling and supporting litigation support software and providing associated educational and technical services, so I clearly have a commercial interest in persuading lawyers to use them. Even without that incentive, I believe that in this respect the conclusions of Richard Honey’s respondents are flawed and worth closer examination. I should make it clear that I see Mr Honey as a reporter and interpreter and, in arguing a different point of view, my target is the message from his respondents and others of the same views, not the messenger.
How Firms Approach Litigation Support
Construction lawyers, by the nature of their field of specialisation, are more likely than others to be ‘early adopters’ and users of litigation support systems. History tells us that where early adopters are enthusiastic about a new approach to working methods, those planning the best way to use the new technology in their own practices would do well to look at the experiences of the early adopters. The very positive conclusions from Richard Honey’s sample were that:
‘Litigation support systems are used in at least 10% of construction disputes’
and
‘Overall it seems that the uptake of litigation support systems is relatively high and set to grow’.
He referred to the three different approaches adopted by firms in using such systems, summarised in Table 1:
It is clear from this summary that the firms with the most positive attitude and expectations are those who have set up their own in-house litigation support departments, closely followed by those that regularly use bureaux. This accords with our own experience as suppliers of litigation support systems. The most enthusiastic users have been those who have grasped the opportunity to delegate the drudgery to properly trained and supported lower skilled, and lower cost, staff. These firms have realised that it is more efficient and cost effective to do this. They have also gained the benefit of using technology to manage the detailed analysis of the issues.
The bureau route offers one particular advantage to newcomers – they can be up and running with a new case immediately. The price of getting started is fixed and can be compared with both the cost and the value of traditional means of working. If, the experience goes well, they can consider developing an in-house capability to provide litigation support services.
The Benefits
The survey is very clear about the benefits. 83% of respondents claim efficiency benefits, and over 66% claim effectiveness benefits. What will convince the doubters who have not yet tried for themselves? The respondents are right, I think, to say that litigation support software will become commonplace within a very few years (42% say three years, 75% say five). Presumably this will happen as more litigator’s realise that the benefits (identified chiefly as efficiency, time savings and effectiveness) do outweigh the barriers (real or apparent) – indeed, I believe that this is happening.
Predictions as to Progress
Richard Honey’s survey concentrated on construction specialists. How quickly are things going to change in other areas of litigation, and what are the barriers?
A quick look at a summary of the results is shown in Table 2. This reveals that in the firms that are using IT to help developments are moving quickly, and expected to move even more quickly. But interestingly, and to me more controversially, cost and technology were highlighted by the respondent solicitors as ‘barriers’ to the wider use of litigation support systems.
‘Cost and technology are the biggest barriers to wider use at the moment, illustrating that it is the suppliers who can have the greatest effect on the market, if the products and their value improves.’
Barriers
The cost of systems
It was once true, but is no longer the case, that systems have to be expensive. At first, litigation support systems were used on cases where there was little choice – the cases involved paperwork volumes that were almost impossible to handle the traditional way. Such systems were expensive. Scanning and coding the documents for such systems was expensive. Lawyers with big cases were convinced they should try using such systems as the volumes left little alternative. One can see how this led to the widespread belief that IT was only suitable for the largest cases, where the client could be persuaded to fund both the system costs and the costs of loading the documents into the system. Since those early days, systems have improved, bureaus have developed and costs have come down. Forward-looking firms have long been convinced of the benefits and some have set up their own in-house departments
Some systems are still expensive. Some very large cases really do warrant comprehensive and special features. It is also true, however, that many firms (often aided and abetted by over-zealous IT departments) specify system requirements which far exceed their legal or technical needs, their ability or their resources. These same firms do not like the cost of training their users to operate, and asking their bureaus to code and feed, these complex systems, yet they continue to specify the IT equivalent of a Rolls Royce and then complain at the costs.
The economics of small cases
As Richard Honey observed:
The benefits are efficiency, effectiveness, mobility, saving costs and saving space in that order. The most significant barrier is cost – two-thirds of the respondents felt that their cases were too small to justify the use of a database.
This is an impressive list of benefits and presumably worth some cost, both in the lawyer’s eyes and those of his client.
By what criteria do solicitors assert that their cases are ‘too small to justify the use of a database’? Many couple this with the additional assertion that ‘the clients won’t wear the cost’. One wonders whether the firms, still less the clients, have had the relevant information in a form which allows them to make a judgment about this.
There are systems on the market, our own included, that are priced per matter, taking into account the size of the matter. There are bureaux that will scan the documents and code the objective details of the documents in a small, single, file case (up to 500 pages), and deliver their work with the software on which to run the case, for less than the cost of one or two hours of a fee earner’s time charge. Such software is scaleable and will run large cases as well. Bureaux will always be pleased to quote for any size of job.
There obviously are many matters so small that you could not ask the client to fund a cost that is less than another two chargeable hours to your bill. But there is a vast middle ground between such matters and the very biggest cases usually seen as the ones worth computerising. In most cases where the bureau approach has been taken, the fee earner saved time and gained more in value than the cost of the bureau’s work in the enhanced ability to deal with the documents in the case in an efficient way. All that is needed is a better approach to value-based charging for work.
I therefore challenge the 58% of respondent solicitors who cited cost as a ‘barrier’ (and any readers who are of the same view) to think again, or look around the market in more detail to see what else is on offer, especially for smaller cases. I believe that the respondents were voicing an outdated and incorrect view – and that they would be pleasantly surprised by the features and low purchase, training and running costs of some of the systems now on the market.
Front-loading of cost
the ‘front-loading effect of implementing a system’, and ‘lack of expertise’ were cited in particular.
As to front-loading the costs of any one matter, much of the policy behind the CPR is designed to do exactly that, in order to make parties focus on the issues and the risks sooner. IT should be seen as an essential (and inexpensive – when compared to the cost of skilled lawyers’ time) tool to enable this analysis to be done as cost-effectively as possible, not as an extra front-end cost.
I question whether the alleged front-loading costs are ever actually calculated, still less compared with any other means of covering the ground, before being set against the benefits. In any event, is there really any extra cost? Take some sample cases of your own firm – take differing sizes and look at what was charged to the client down to the disclosure stage. Then try and calculate the true cost by adding back the uncharged internal costs (with management and overheads) of, for example, secretarial time. Then get a couple of quotes for outsourcing the mechanical parts of the process and attempt to value the list of benefits cited by Richard Honey’s respondents. The firms who are developing their in-house litigation support departments must have done this and felt they would be making an even better investment by not even outsourcing but keeping the outsourcers’ ‘profits’ internally.
This is not necessarily an easy set of calculations. But I have yet to meet a litigator who has done it and still makes the costs objection to litigation support. You have to do the calculations before you can safely assert that there is any front-loading of costs which is not matched either by a different set of costs if traditional means are used or by a concomitant benefit.
An element of the equation is the fact that a chunk of cost goes outside the firm (if the work is outsourced) or to internal cost centres (if you have an in-house system and dedicated team). Many fee earners would rather avoid this by keeping the work themselves. The firm’s managers, however, should be aiming to grab a bigger slice of the cake from rivals, or to make the cake bigger (eg by increasing clients’ willingness to go to litigation, arbitration or ADR) by demonstrating a commitment to efficient case handling. Who cares if the duller, less skilled and least profitable parts of the process are done by someone else if that leaves more time for more, and more profitable, skilled work?
Technology as a barrier
The barriers will be overcome by improvements in technology and the falling cost of systems.
What ‘improvements’, I wonder, will make the difference? There are some good products out there in what is quite a mature market, and prices are indeed falling in line with other aspects of technology.
Whilst any of these products may have room for improvement, the low take-up rate in the mid-range of firms or matters does not seem to me to follow from any perceived shortcomings in the technology. We listen to our users and the requirements of prospects. I challenge anyone who says that ‘lack’ of features is a barrier to entry. If anything, the reverse is true – over featured products are sometimes too difficult to use and do become a barrier. Few users really stretch these products. Features rarely seem to be a deciding issue. And, as I have said, nor need the software cost be a reason.
Lack of knowledge
If I am right and cost and technology are not real barriers, is there really anything to stop firms from using litigation support systems? I think the real reason is lack of knowledge and understanding of how litigation support software can help, over and above being a better way of doing what the firm does in the usual traditional way.
We have therefore started to recommend education (which earns CPD points and is quite separate from product training) for everyone in the department as a first stage to introducing litigation support software.
Conclusion
Richard Honey’s respondents appear to believe that the use of litigation support will grow despite rather than because of those whose role it should be to foster its growth.
I agree that the use of IT will grow, must grow, is growing. I accept that suppliers are in part to blame for the slow take-up hitherto, but not for the reasons given – the facts do not begin to make out the case that Richard Honey’s respondent solicitors assert, that ‘cost and technology are the biggest barriers to wider use at the moment’ or that there is ‘an observed gap between the needs of the lawyer and the products’.
The benefits of technology in litigation are there for the taking, by many more firms, and for a wider range of cases than one thinks – you have only to look at the number of providers of both software and services to see that. Those who do use it do not shout about it, either because they guard the competitive advantage it brings or because they simply take the tools for granted.
I believe that the products match the needs and that the costs are in proportion to the benefits. I have suggested that the lawyers have missed this by a mixture of false economics and a failure to appreciate the real value of computerisation. The real value is not the pure listing nor the conduct of trials, valuable though they are, but in getting quickly to the ‘realistic advice’ which comes from ‘more thorough preparation at an early stage with consequent front-loading of costs’ urged in Lord Woolf’s original report.
