One of the major changes affecting large construction disputes, is the approach to disclosure (or discovery). Increasingly (and somewhat inevitably) the approach of the courts, arbitral tribunals and parties is moving towards e-disclosure. Almost 20 years ago, Official Referee Judge Bowsher QC presided over the first full trial (part of the Carlton Gate litigation) where there was an electronic trial bundle available for use. It did not, however, open the floodgates. Now, finally, times are changing, as first Simon Tolson, in an article which first appeared in Building Magazine, and then Sana Mahmud explain.
It is said that lawyers are historically slow to adapt to change. Yet lawyers are using the latest technologies in their law practices on a scale unheard of only a few years ago. In my practice we have used computers extensively for word processing and accounts since at least 1986, for data crunching and research since 1989, and we started using email and the internet in 1997. I insisted all qualified staff had Blackberrys from their launch in 2003.
The impact of certain technologies is apparent, particularly in litigation where e-disclosure is proving to be one of the biggest areas of technological innovation in the legal sector; but also in the wider management of law firms. Internet-based cloud computing, mobile technologies and social media have profoundly affected lawyers’ professional and personal lives. But I am not going to talk about technology developed specifically for lawyers back at their desks. Instead, I refer to something even more exciting and it is the shape of things to come. The paperless trial, no less.
Smith Bernal International, founded by Graham Smith, was the company that brought us LiveNote in 1990. For non-lawyers I should explain that LiveNote is a tool for judges and lawyers that enables access to live computer transcripts. The feed came directly from the court’s stenograph machine, within a second or two of the words being uttered and then written by the reporter. The primary benefit was that it allowed the user to interact with the evidence as it was given, jettisoning manual note-taking by my fraternity. It chiefly removed the need to read through reams of irrelevant transcript in a search for key evidence and made prep for cross-examination much easier.
Graham Smith later sold LiveNote to Thomson Reuters and “retired” to Italy. However, he soon re-emerged to set up his new baby, his company Opus 2 International. Opus’ new product is called Magnum. No, not an ice cream or the Clint Eastwood movie, but a true Magnum Opus. Whereas LiveNote only addressed transcripts, Magnum has a wider agenda. Unlike LiveNote, it provides a secure, cloud-based interface for accessing, annotating, tagging and managing transcripts and other electronic documents and files. This helps litigators develop their cases after they have sorted and reviewed material gathered during e-disclosure. It allows the team to review evidence and collaborate for applications, trial preparation and courtroom presentation. Magnum integrates with document review platforms so that a document set, including all metadata, can be uploaded onto the system. Trial teams can access the system from anywhere and are not restricted to being on the same network to collaborate. It is easy to share files with team members and uploading additions to trial bundles is near child’s play.
Magnum debuted just over a year ago in a trial before Dame Elizabeth Gloster in the £4bn litigation between Russian oligarchs Roman Abramovich and the now-late Boris Berezovsky, and is now being used in one of my construction cases in the Technology and Construction Court. Magnum has several obliging features, including how witness statements, expert reports, openings or skeleton arguments and the daily transcripts are hyperlinked to the underlying disclosed documents. Clicking on a reference within a document avoids hours of flicking through files to find the correct page. This is particularly useful in court where both time and the space required to house voluminous files can be at a premium.
But that is not all. Now synchronised audio and video comes with it, allowing you to listen remotely to proceedings where the judge permits. Transcripts stored on the system also allow you to visit later and replay bits of the evidence you missed. For arbitration there is also the choice of video. Whether your client is in the retiring room, or in his car in Delhi or Riyadh, he can tune in and follow what is going on. No more having to go to the Court Mechanical Recording Department weeks later to get an “official recording”.
Our experience using it thus far has been great because as an e-bundle it works, and the environment truly matches the way a lawyer works with paper. In a case with a chronological bundle of 228,258 documents, traditional photocopying would have set us back at least £65,000 for three sets, plus related administration costs, so it makes going paperless truly better value. It reduces time, as documents are identified quicker on common screens concurrently, and it reduces uncertainty.
Systems like this will undoubtedly replace hard copy. The use of email, text messaging, etc., has today rendered paper nearly obsolete anyway. I cannot see any large or medium-sized commercial dispute not using something like this in future trials and tribunal hearings. What is more, the judges seem to love it.