The concept of the sexy, high-tech courtroom goes back a long way – the first
Graphics and video clips make for an even slicker presentation. Take the Bloody Sunday Inquiry – running for six years. This is a most obvious example of what could be considered a slick presentation to a court. A virtual graphic depicting the site in 1972 provides a ‘bird’s-eye’ camera view from just about any angle. The witness can ‘take a walk down memory lane’ with Lord Saville, his fellow judges and the entire court as part of giving evidence.
Lord Saville considers that the Royal Albert Hall would only just have had the capacity to house the Inquiry had it been paper based and that the Inquiry would have taken at least ten years to complete. His view is that use of the technology enables a truly public inquiry that is spectacular in its simplicity to portray the multifarious facts. Impressively, the Bloody Sunday Inquiry has suffered less than half a day’s downtime so far.
The Woolf Report, included a specific examination of IT use in trials. Its recommendation that using the type of technology described above can save approximately one-third of court sitting time and associated costs has been proven and endorsed by the Court Service and judges over the last ten 10 years.
Current Realities
This is all very well but, to date, apart from public inquiries, parties bringing actions have proceeded cautiously with use of trial IT and generally it is considered too costly with limited value. For serious fraud trials, the technology has to succeed in cutting the length of the trial by at least a third if the investment is to be considered worthwhile. Juries benefit immensely from having a visual presentation of the evidence, thereby assisting them to understand the complex facts of a fraud case but there are still cost considerations.
The Court Service took the initiative in attempting to provide a standard trial solution piloting single courtrooms in
Temporary installations, whilst reliable, are expensive. A contract to supply and support an entire trial solution for a five-party, nine-month trial starts at around £150,000. The bulk of this is attributed to hardware. Technical and user support ranges between £75 per hour and £750 per day. An impartial courtroom operator, essential to maintain a ‘balance of arms’, is charged at £350 per day. Add in the daily running costs of £8,000 and it is easy to see how the rationale of ‘buy in to save’ becomes less impressive.
Obviously, the size of the budget, the merits of the case, the length of the trial and whether the courtroom can be adapted sufficiently are considerations. However, what is it that eludes the Court Service in cutting out the well rewarded supplier while still providing parties with properly supported, high standard trial solutions – why are prosecutors forced to buy-in expensive temporary installations?
To quote an analogy used by Professor Richard Susskind, all too often it is the ‘plumbing’ that becomes the main focus and not the all-important ‘flow’. Of course, it is critical to the success of a trial solution that the technical infrastructure be robust and correctly supported. But it is the ability to understand how the technology will be used so as to present the evidence as part of a logically, well-argued case which provides the winning combination of fair justice whilst simultaneously saving costs and time.
Although it could be said that, on reaching court, the document has reached the most significant part of its life cycle, trial is too often a last minute and separate consideration involving a whole new budget as part of a whole new sub-project. In some instances, documents are scanned twice (or more, depending on requirements for categorised bundles) during case preparation and again for trial purposes. This is expensive and unnecessary. To obtain real value from the technology employed during case preparation, trial preparation must be planned as part of the overall case once the legal team are reasonably sure that the case will get as far as trial. Whilst a plea in advance of trial must be considered an excellent result, prosecutors cannot rely on such an outcome and thus risk going to trial without having planned for it properly.
Information Exchange Initiatives
Increasingly, data and document exchange agreements are a key planning consideration in multi-party trials if a judge is to have any hope of grasping the case within a reasonable time frame prior to commencement of trial.
The emergence of this issue has caused a flurry of activity both in the civil and criminal sections of the legal profession. The Electronic Data Exchange group has become more prominent as City law firms subscribe to obtain recent developments. In the last year or so, prosecutors too have discovered that they share a myriad of ‘like’ problems experienced in planning electronic trials in EPE courtrooms.
As a direct result, the Electronic Presentation of Evidence Prosecutors’ Group (EPG) was established in December 2002. The Group aims to achieve a single, consistent solution for all prosecutors which is appropriate to small cases as well as to large cases and to ensure a consistent interface for all courtroom users in all electronically presented cases. Working closely with Criminal Justice IT, the EPG is an informal combination of prosecutors, and the core membership comprises the Serious Fraud Office (chair), Inland Revenue, Customs & Excise, Crown Prosecution Service and the Department of Trade & Industry.
The summer of 2003 saw a major consultation exercise undertaken by the EPG. Practitioners across the profession were interviewed in addition to presentations and discussions with the Legal Services Commission, the Law Society, the Bar Council, the Judicial Studies Board and working committees such as Information Technology and the Courts and the Judicial Advisory Group. Suppliers of trial technology were also invited to participate.
The findings were published to the Attorney-General in January 2004. The CPS Prosecutors Conference will provide an opportunity to present a Functional Requirements document as well as the body of a Protocol. Widely published via approved Web sites, the Protocol will enable members across the profession to access a pragmatic source of information pertaining to digital case plans, including case preparation and presentation.
The EPG Protocol will address issues regularly experienced in current live trials. For example, how to digitally present sensitive material reserved for the right moment at trial is a recurring problem for defence teams. Whilst, understandably, defence teams will not want to store sensitive documents on a central, impartial repository, the judge looks to the prosecution as ‘hosts’ of the courtroom technology for resolution and resourcing of such issues.
Additional scanning at court is easily achievable. Five additional pages scanned at 09.45 can be on screen by
Real-time Transcription and Messaging
A recurring issue faced by all prosecutors is whether to use a real-time transcription tool and how to split the costs to ensure fairness and equality of arms at trial. Providing a verbatim, word-for-word account of the day’s events in court and the ability to privately make notes, search issues or text and manipulate text using different applications makes this tool very attractive to users. A robust and easy to use product like LiveNote is accepted and appreciated as a software application that provides real value, although it is deemed to be expensive. A trial must merit use of LiveNote and its costs and advantages must be taken into account as part of the business case.
Evolving more into ‘evidence management tools’, the market has seen enhancements including being able to send messages back to the chaps at the office to ‘look up’ references on the case document management system, which can be a critical advantage for counsel in a tough cross-examination of a witness.
Messaging within court can be good too, although some are known be just above banal ‘what are you doing for lunch?’ or more importantly ‘this guy has confessed to everything but murder’….(solicitor to counsel).
At the Barings trial, being able to access documents in context within the (live ‘feed’ and final) transcripts was achieved for all five parties via a secure link allowing each party to access its own native document collection held at the office. Similarly, colleagues could remain at the office whilst having an on-line connection to the trial.
Since real-time transcription is estimated to save court time of 25%, it is reported that judges use LiveNote in trials as short as two weeks. Taking one’s laptop home to settle and make more notes with the entire day’s evidence available is rather appealing. Now, document embedding allows the judge to see not only what the witness says about a document, but see the document too. This is done merely by clicking on the reference at the point in the text.
LiveNote and like products are implemented as long-term contracts in some courts, but their availability is often down to the budgetary and strategic considerations of the party bringing the action.
Managing the Technology
Judges are expected to oversee the use of IT in court, as well as preside over legal proceedings but often have no choice in the tools they may wish to use both in and out of court.
Prosecutors often have to defend claims made by defence teams that use of IT in court to present the case is unfair resulting in an ‘inequality of arms’. The Legal Services Commission will pay for technology based on a robust business case presented on a case-by-case basis. This approach means that the same issues are addressed time and time again at great expense.
The courts, judges and organisations such as CJIT and JAG will not address technology issues on behalf of the parties. It is the parties themselves that will need to prepare well in advance to avoid embarrassment and humiliation before a judge. Compact, structured ‘digital case’ plans presented at Mention or at the PDH will provide the judge with a well informed opportunity to make the appropriate direction or order. This also enables court staff and defence teams to make the appropriate applications for funding and plan well in advance of trial, thus negating the need for ‘last minute’ panics whilst the jury are being sworn in.
Judges are now being encouraged to preside over their trials as ‘project managers’, but the assumption that judges are educated or guided sufficiently to make orders as to whether a trial should proceed electronically or remain paper-based is questionable. Of course, judges must be consulted. The JSB is extremely keen to ensure that robust modules covering use of technology are available as part of compulsory training courses. This compliments the work of committees such as ITAC and JAG who understand the glamour of a high-tech courtroom and continue to perform good work in the ultimate achievement of the ‘best of breed’ solutions.
Conclusion
Successful trial management in all trials, but particularly in large, complex, and costly trials, is about forethought and careful planning. However sexy the courtroom technology, it should not be deemed as a mere accessory to a succinctly argued, effective presentation of the case.
The evolution of the EPG is recognition that benchmarked standards for use of IT in trials is essential in protecting and ensuring value from the ‘public purse’ in achieving fair justice.
Lisa Burton is an independent legal IT consultant with Burton Abramson Ltd
