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Litigation Support: Fear Factor
By Monica Bay
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DAVID Whelan, who has led the American Bar Association's Legal Technology Research Center for the last five years, is heading to Ohio to be the new director of the county law library in Cincinnati. One of his final tasks was to send the latest ABA technology survey to the printer. I pestered Whelan for a sneak preview, and I was stunned by the litigation support results.

Take a look at the chart. Assuming that the ABA's methology was sound, how can that be? Only 11.7 percent use trial software? In today's competitive environment, I think any lawyer who would go into a courtroom without even basic litigation support software should make sure the firm's malpractice premium's paid.

Startling Statistics
1. Is litigation support software available at your firm?

Yes: 27.0% No: 73.0%
Solo: 4.3%
2-9: 15.0%
10-49: 41.4%
50-99: 27.8%
100+: 54.1%
Only 38.8% of lawyers who indicated that litigation was a major practice area said "yes" to having it.

2. Do you personally use litigation support software?

Yes: 11.7% No: 88.3%

Solo: 2.7%
2-9: 7.2%
10-49: 15.3%
50-99: 26.7%
100+: 18.2%
A note on methodology: The ABA produced five separate reports: Law Office Technology; Litigation and Courtroom Technology; Web and Communication Technology; Online Research; and Mobile Lawyers. A total of 1,524 people participated, but each respondent was polled only for one of the reports. That's why there are some inconsistencies between the volumes on similar questions. Of the respondents, 18 percent were solos and 34 percent worked in small firms of 2-9 lawyers. The average respondent was male (80 percent), 53, with 28 years of practice under his belt.

Puzzled, I turned to our cadre of experts. I was, frankly, surprised that they weren't too terribly surprised by the results.

Houston attorney Craig Ball* consults on trial technology, and is among several who suggest semantics are at play. "I give seminars on computer forensics, and often ask the lawyer audiences, 'How many of you have a tape-based electromagnetic storage system in your homes?' I get few hands." The audience, he says, doesn't make the connection to VCRs, cassette players, and answering machines.

"Here, I'm in the same boat. Just what are we calling litigation support software? PowerPoint certainly can serve a litigation support function. I bet if you asked the litigators how many of them personally use PowerPoint you'd find many do — at least more than 11.7 percent! Is Microsoft Word litigation support software? What if you use Word at deposition and in the courtroom to search ASCII transcriptions of testimony or access the exhibit list?" he asks. Excel? Sanction? Trial Director?

Fellow Houstonian Samuel Guiberson, of Guiberson Law Offices, agrees. And he's not too fond of existing litigation technology anyway. He suggests savvy lawyers are better off bypassing "the fat price and product support contracts" of legal-specific tools. "Maybe what [the ABA is] measuring is not how clueless, but how sophisticated those polled actually were."


Are the numbers skewed because firms are outsourcing litigation support? "There is no need to have everything inhouse at all times," notes Chicago's Audrey Rubin, chief operating officer of Butler Rubin Saltarelli & Boyd. Her firm prefers to outsource exhibit preparation to consultants, who stay up on the latest tools.

But others suggest money and fear are at the heart of the disconnect. "Small firm attorneys who are cost conscious are unlikely to be outsourcing," says Bruce Olson, of Green Bay, Wisc.'s Davis & Kuelthau. "Outsourcing takes money away from cash flow. There is always a fear that the client might refuse to pay for the added expense that outsourcing involves."

Phoenix litigator Michael Arkfeld, author of two books on trial technology, says solos and small firms resist trial technology, because of "lack of interest, lack of technology understanding, lack of training, billable hour obstacles and, sometimes, cost."

Three San Franciscans see eye-to-eye. Jon Sigerman, president of Summation Legal Technologies Inc., (which produces Summation), says many lawyers simply don't understand how the technology works and what it can do. Some, he says, still think of litigation technology "as a back office or paralegal tool for static information delivery and management." Others, he says, expect it to be used to deliver boxes of paper.

"These lawyers don't understand that they can have this information in seconds, not days, at their fingertips in a laptop computer," says Sigerman. They don't understand that scrolling search results on a computer screen is faster than thumbing through paper, he says.

Ted Brooks, president of Litigation-Tech, sums it up: "Firms are not really sure what is available, often it just looks too expensive, and there are too many systems to choose from. It is largely a fear of the unknown."

"Fear, fear, fear," agrees Vicki Lee Clewes, senior consultant with Baker+Cadence Solutions. She sees firms that are put off by the perceived expense. The reality of adopting the process (even more so than the software) is overwhelming.

Indeed, it is paralyzing, says Cleveland consultant Dean Boland: "The availability of so many competing products overwhelms purchasers. They are making a $500 to $1,000 investment for even a small shop and then not knowing if what they're getting will suffice. They are concerned, rightly so, that if they spend two or three years with one product, they will be unable to migrate to another easily, if at all."

Milwaukee's Ross Kodner says he has "dozens of clients with significant trial practices that have no lit support applications." Kodner, president of MicroLaw Inc., says they either "haven't gotten around to it or have a very real fear of learning and mastering what they perceive as a radically different approach to trial preparation and presentation."

"The fear factor cannot be underestimated," says Kodner.

Size Matters

Many observers disagree with the notion that all cases deserve trial technology. "The vast bulk of litigation attorneys feel that litigation support software is for the 'big files' and they don't handle them," says David Bilinsky*, practice management advisor and staff lawyer for The Law Society of British Columbia. "Their files are too small to pour in the time and resources to learn and use the software."

Colorado consultant Phil Shuey, of Shuey Robinson, says many small firms are a blend of transactional and litigation practice, and often feel that "substantial dollar and/or time commitment for the litigation side of their practice is ill-advised."

Keith Lipman argues that there's a critical mass to reach before using technology. "These tools only make sense once a litigation, in paper terms, exceeds one or two copier boxes of relevant content, and/or three or more depositions," says Lipman, senior product manager, at Interwoven Inc. "Before this point, the effort and work to apply the technology may not be worth the results."

Solo Bruce Dorner agrees. "Some cases don't require heavy artillery. I don't need litigation support (depending upon how it is defined) to go into court to collect on a promissory note which is in default," he says. "The types of cases requiring litigation support are, in their nature, complex matters which have piles of related and un-related documents, facts, witnesses, etc. Therefore, it is more likely that a smaller firm would be handling less complex cases requiring less complex technology," says Dorner, of Londonderry, N.H.

Jennifer Stevenson, marketing director of Dataflight Software Inc. (manufacturer of Concordance) confronts these same issues. "Most small firm lawyers don't get litigation cases big enough (in their opinion) to warrant the expenditure of litigation support software. If they are brought into a larger litigation case as co-counsel, they will often purchase our software. However, we've found that they do not continue using the software after the case is over," says Stevenson.

"What we've learned is that they do not see the value of scanning one or two boxes of documents. They believe that doing it the old-fashioned way works just fine."

Training is another huge issue, many firms protest that they just don't have time. "A small firm attorney told me that to learn a new way of doing things is like asking him to change his car's transmission on the freeway," says Stevenson.

Another common concern: Firms worry that using technology will actually reduce their billable hours. "Many attorneys need to be open to working more efficiently before they'll adopt software. Oftentimes the clients of small law firms aren't experienced enough to question such unnecessary administrative overhead," Stevenson notes.

Who's responsible?

Why are lawyers resisting technology that can improve productivity, accuracy, client service and profits? Kodner places part of the blame right at the feet of the vendors. They do a great job telling prospective buyers about the plethora of features, "but do little or nothing to educate lawyers about why trying cases without these products is so illogical," he says.

"There's a very real and very wide gap between the relative knowledge of the prospective buyer and what the vendors seem to presume their buyers know."

Vendors trumpet their miraculous new case organizers while prospective buyers are scratching their heads saying, "What is a case organizer?" says Kodner.

The answer: Vendors must "demystify their products, stop assuming people know what their products do," says Kodner. "Stop presuming lawyers 'get it' as to the reasons why they would be nuts not to use these products, and finally, make the prices reasonable and affordable (and provide plain English ROI analyses to make it economically obvious). It's not a problem with users, it's an educational shortcoming on the part of vendors."


Most legal technologists brush off the notion that failure to use litigation tools may trigger malpractice claims.

"Any skilled advocate can still make a hell of a persuasive and winning presentation in the courtroom without using a bit (or byte) of litigation support software," says Craig Ball. "In the right hands, a flip chart, overhead projector or any prop can be used to good, even captivating, effect. It's not malpractice to head to court without circuit boards in tow — if you can pull it off," asserts Ball.

But others see fire on the horizon. "It is certainly getting to the point where the failure to use litigation support is arguably malpractice, and there are even a few appellate cases out there that have said so," says Bruce Olson. Most litigators, he says, "would scoff at the idea that the failure to use litigation support technology meant they were negligent." But the fastest way to get religion "is to be badly beaten up in court by an opponent who uses litigation support, technology effectively and victoriously, says Olson.

He admonishes lawyers that cost concerns are short-sighted. "Too often the focus is only on the upfront cost, and not on the total cost of managing a file. Litigators who look at the big picture, and who integrate litigation support effectively into their day-to-day practice, understand that they will ultimately reap long- term savings through the systematic daily use of litigation support software."

The bottom line, suggests Michael Arkfeld: Face your fears, and do it, even if it hurts. "Though change is difficult, it benefits your clients."

Monica Bay is editor-in-chief of Law Technology News.
* Member, LTN Editorial Advisory Board.

More: Click here to read commentary from LTN's cadre of practitioners, IT staff, consultants and vendors.

Editor's note: For complete information and to purchase the 2003 ABA LTRC Annual Technology Survey see:

The survey is published in five volumes, with an executive summary available for download free to ABA members.

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