Interviewed for a job once, one of us was asked to describe the essence of a piece of litigation.

After offering a glib answer along the lines of the importance of the ability to read the future and people’s minds, the interviewer’s understanding impressed: a dispute is a disorganised heap of facts (usually recorded in documents).

The litigation process is to bring order out of that chaos.

That was back in the paper days.

There was plenty of disorder then, but there is even more now.

You may not have heard of 'unstructured data' but the chances are you have just created some.

If there was chaos in the paper days, describing the disorder in the information society as unstructured is kind in the extreme.

Technology has without doubt proliferated the disorder.

But technology can also help restore order. Yet only with the help of the ordered mind of the lawyer.

For example, the term 'e-disclosure' is used with increasing regularity. The term, however, is somewhat misleading.

Some have confused the process with the electronic disclosure of documents.

Others understand it to mean the disclosure of electronic documents.

Many shy away from anything associated with it on the grounds that lawyers are lawyers and not IT specialists.

Anything 'e-' is for the technology bods, not for the lawyer.

The Jackson costs review suggested that the proliferation of electronically stored information (ESI) was a reason why litigation costs have increased and that lawyer training is the solution to the problem.

Given that law students receive no specific training in handling ESI at University or during the vocational stage of their education, the skills required in the information society will be acquired in a non-legal environment and on-the-job.

Technology in the law

Recent UK case law shows that there is an emerging standard of care required in properly handling ESI.

Further, Practice Direction 31B, which applies to all cases issued after 1 October 2010, requires litigating parties to discuss what technology platforms and solutions might be used to manage the process more efficiently.

This would include tools and techniques to eradicate duplicate or near duplicate documents and applications enabling searches for the most relevant material first, as well as to achieve an orderly production to the other side.

Beyond searching and automated volume reduction, the availability of the technology enables outsourcing of parts of the document review itself to a lower cost environment.

A consideration of outsourcing is very likely to become a routine question in all cases in the interests of better costs management.

Technology may have caused the problem with the proliferation of electronic documents but it also holds the key to solving that problem.

Understanding what solutions are available should become part of a contentious lawyer’s know-how and skill-set.

There is a difference between having a technology solution and knowing how to get the best out of the technology in the context of the nature of the review and the applicable deadlines and budgets.

Effect on costs

Adopting a paper-based approach to disclosure when well in excess of 90% of documents were never printed at the time they were created and communicated will always be hugely expensive.

An electronic solution is almost always going to be the most cost-effective.

The proper deployment of the technology could actually make it cheaper to litigate than used to be the case in a predominantly paper-based system.

Should the use of technology reduce the costs of litigation (disclosure always being the most expensive part of the overall case budget), then we could expect there to be more of it.

Embracing technology to combat risk

Although the technology and methods applied in litigation cases have emerged from the need to disclose documents, the application is not limited to disclosure or even just litigation.

Effective use of technology should be applied to any legal case where there is a focus on reviewing or analysing electronic evidence.

There is an increasing trend of lawyers using what were traditionally electronic disclosure platforms, in arbitration, tribunal hearings and regulatory investigations.

High risk review areas (where clients may face imprisonment, massive turnover-based fines or criminal conviction) are not only risky for the protagonist.

They are also risky for the lawyers personally (who might get the management wrong) and risky for the case (since the evidence by means of which guilt or liability can be established or avoided can be lost or altered very easily in the case of ESI, not to mention the fact that those involved may have sought to cover their tracks in any case).

With the predicted increase in instances of commercial fraud, the ramping up of the capabilities of the OFT, FSA, EU Competition Authority, SFO and other regulators and with the coming in to force of the Bribery Act on 1 July 2011, the number of such high-risk projects is set to increase.

The disciplined management of the evidence in these cases will be very much a core skill for a law firm to demonstrate to nervous clients in order to provide reassurance and in order to ensure the right advice is available at the earliest possible time.

UK Competition law provides benefits if leniency is sought first before anyone else.

The new self-referral approach of the Serious Fraud Office in cases of bribery and corruption will mean the timing of the referral will be very important.

In fraud cases, finding the evidence to justify freezing and search orders has always meant moving quickly, and so getting on top of the evidence on day one may become the difference between success and failure and could certainly mean the difference between recovering some money as opposed to non or paying a significantly reduced fine to the authorities.

Private arbitration, cases using the public court service and regulatory investigations all demand similar ESI project management issues, albeit in different contexts.

There is ample scope for the parties in a private arbitration to provide trial technology and to make the arbitral proceedings digital.

The regulators themselves have been investing in new search technology and are upgrading their approaches.

The public court service is underfunded and the scope for providing an electronic trial is now considerably less since the Judiciary will depend on training.

There is no choice of the buildings in which the hearings are to take place and the court service does not have funds to invest in digital court rooms.

The Head of the Birmingham Civil Justice Centre, His Honour Judge Simon Brown QC’s letter to The Times recently raised this issue and it remains to be seen with innovation and public/private partnerships can be formed to transform the systems available to the judiciary.

If what is otherwise an electronic process has to be converted back into a paper process for the purpose of presenting the evidence and the case at trial, it will continue to hinder the take-up of the technology at the beginning of the project.

Other jurisdictions, including the United States and Australia encourage use of technology in courtrooms – even for commercial trials.

Presenting documents electronically not only reduces the need to print multiple copies of document bundles before trial.

It also allows advocates to present with impact, and speeds up flow of submissions or examinations.

In a long trial, days could be shaved off by avoiding the need to shuffle through trial bundles to refer the court or witnesses to documents.

The lawyer: a project manager

Given the vast volumes of ESI in use in commerce and the private affairs of citizens, any case (be it litigation, arbitration or a regulatory investigation) will be challenging by comparison with the days of paper simply because the volumes of ESI are way more.

Lawyers are used to managing their client, counsel, the court, the expert, the witnesses and of course the documents.

The documents part of it is probably more challenging than at any time in the history of justice, purely because of the enormous volumes of material to be considered and managed.

Lawyers are often criticised for not having well-developed project management skills.

One project management skill that is already much in demand is costs-estimating.

The recent costs management pilot in the Birmingham Mercantile Court is set to be rolled out in all courts nationwide.

This will doubtless lead to the wider practice of estimating costs in advance of the delivery of the services for which the costs will be paid.

Another project management skill is the collection and review of the ESI.

The evidence handling side of a case whilst challenging is much more predictable and quantifiable as a result of its electronic nature.

Volumes can be instantly measured, review rates can be established and from these estimates can be readily calculated of how long a review will take and how much therefore it will cost.

The speed of throughput and the costs burn can be flexed by factoring in additional resources, and a review can be designed and planned to use off-shore, on-shore, on site, or off-site resources or even the client’s own resources in order to manage the cost or time available in which the review has to be completed.

The technology readily monitors the progress of a review and statistics and progress reports can be provided to clients.

Performance against budget and anticipated completion times can be monitored giving clients full visibility and transparency.

The deployment of the proper disciplines of project management will not only get the job done efficiently but will mitigate and manage the risks referred to earlier.

Just as Lord Justice Jackson indicated in his report Review of Civil Litigation Costs that education is the answer for lawyers faced with the spiralling costs caused by the proliferation of ESI, so the teaching of project management skills are a large part of the answer to what that education should comprise.

Conclusion

Lawyers are information workers, happy to work with information and complexity.

E-Disclosure is to a great extent an unhelpful misnomer.

What is really encapsulated in the term is the management of ESI.

In the context of client projects, e-disclosure is project management.

Senior Master Whittaker did not shrink from using the term 'ESI' in the Goodale judgment (Goodale v the Minsitry of Justice [2009] EWHC B41 (QB)), and lawyers should equally look to embrace not only the language but their familiarity with basic IT concepts in the management of their projects.

It is necessary for the IT function and the Legal function to embrace one another’s very different worlds and for deeper understanding of the flow of information with the client’s organisation.

The data of the IT team is the evidence of the lawyer. Same information: different perspective.

One wonders whether both inside and outside counsel are close enough to their client to know how information is stored within the client organisation and how it can be retrieved.

That might be an appropriate benchmark of competency in the future.

In house lawyers would do well to familiarise themselves in this way and brief their outside lawyers accordingly.

This knowledge will not only help projects to move more quickly but it will reduce legal bills and increase efficiency.

Lawyers are often criticised for their lack of project management skills in contrast to accountants for example who are commended for theirs.

The lawyer who will be in demand in the future will be the one who can structure disorder and manage large volumes of ESI effectively in order to separate the relevant from the irrelevant and to get to the heart of the matter more quickly than his opposite number.

Mark Surguy is a partner at Eversheds and Daniel Kavan is a consultant in the legal technologies department at Kroll Ontrack.