Like most professions, the practice of law has been changed immeasurably by technology. Communication is now instantaneous. Gone are the days of writing a letter, posting it and knowing that you could put the file away for a week before the response came back. Legal research is conducted online and not in a law library, with access to legal authorities from courts around the world being available at the touch of a button. Knowledge management platforms keep lawyers up to date and deliver incredible efficiencies in document production. Evidence can be transcribed in real time so that those involved in a case, whether they are in the court room or back in the office, can read and consider the evidence as it is being given. Court hearings can be held remotely using sophisticated video technology, with the judge, advocates and even witnesses being in different locations.
All of these changes, and many more, have contributed to improvements in the accessibility, responsiveness and efficiency of legal services. In litigation, however, technology has had and will continue to have a material impact on the way in which lawyers work.
Litigation in Jersey and Guernsey, like in England, is conducted on a "cards on the table" basis. This means that each party to a legal dispute is required to disclose to the other parties every document that is relevant to the dispute, regardless of whether the document is confidential, regardless of the basis upon which the party holds the document and, most importantly, regardless of whether the document is helpful or unhelpful to the party's case. This is what is known in litigation as the discovery process.
The discovery process extends not only to physical documents, photographs, recordings and so forth, but also to information held electronically, whether on a computer server, a laptop, a tablet, a storage device or a mobile phone. It extends to emails, call logs, voice recordings, text messages and social media posts. It extends to data which has been archived or which has been deleted but is recoverable through forensic techniques. Where the party is a corporate entity, it extends to data held by all of its officers, directors, employees and agents wherever in the world they are based.
Because of the vast amount of digital data now produced and held by companies and the individuals they employ, the discovery process in litigation can be a massive exercise. Just 1 Gigabyte of data can contain over 100,000 pages of emails or over 10,000 documents. Given that some estimates have suggested that the digital universe will grow by 40% a year into the next decade and that by 2020 there will be over 5,000 Gigabytes of data for every person on Earth, it is clear that the exercise of collating and reviewing for relevance everything that needs to be disclosed through the discovery process is a task that is only going to get bigger and more complicated.
Fortunately, digital technology offers solutions to the problems it has helped to create. The days of copying, printing, sorting into chronological order and having a lawyer review each and every document which may be relevant to a case are largely gone. Electronic review platforms now provide the ability to capture, search and sort huge amounts of data quickly and easily. Technology assisted review allows large volumes of data to be reviewed using artificial intelligence which "learns" to identify (more consistently than a large team of lawyers and in a fraction of the time and at a fraction of the cost) not only documents which are relevant to a case, but also documents which may have a positive or negative impact on the outcome of the case. The ability instantaneously to keyword search, notate, remove duplicates, sort and index documents provides lawyers with a powerful tool to assist in assessing and exploiting the strengths and weaknesses in a case at an early stage.
Even at trial technology is transforming the way in which cases are conducted. Court bundles can now be prepared and accessed in Court electronically, significantly reducing the amount of paper and the amount of time taken by the judge the parties and the witnesses to find the document being referred to. Instead documents can be called up instantaneously by reference number and viewed on screen. The documents referred to can be flagged, highlighted and annotated and hyperlinked to the transcript of the hearing. With effective use of trial technology, the amount of court time used (and legal costs incurred) can be massively reduced.
There is no doubt technology and the advent of AI will impact on the provision of legal services in the future. Of Course, whether the Lawbot will ever replace the art of human persuasion of an Advocate in Court is another matter altogether!
This article first appeared in the September/October 2018 issue of Contact
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