Dematerialising your Practice - IT Panel Articles 2005-2007

Part 1 - Introduction

Don't panic, but government wonks are out to dematerialise your practice.

"Dematerialisation" is the vogue word among IT consultants meaning reducing reliance on paper. The DCA and the High Court Judges, are looking at ways of achieving this. Few of us civil practitioners will have forgotten the basis upon which we were sold the radical new ideas contained within the CPR. It was all intended to be powered by the white heat of technology.

That squib has turned out to be most decidedly damp. In fact, it is IT which has so far been responsible for precisely the opposite effect. Vast swathes of paper documents are routinely produced in any case involving the collection of evidence from computers. Copious quantities of emails arrive from solicitors, and the client, all of which have to be printed out and placed with the papers.

The Civil Courts have, with the best of intentions, been complicit in the problem, imposing an ever increasing paper bureaucracy on solicitors and barristers when conducting litigation: witness statements with exhibits, particulars of claim with exhibits, part 18 responses with exhibits, skeleton arguments with chronology, photocopies of authorities: the list, like the paper it is written on, goes on and on.
All this paper comes at a cost. If you had seen my room in Chambers, you would know that sheets of A4 slavishly obey the second law of thermodynamics, and if left to themselves, exhibit a tendency to disorder. If you put the paper into ring binders, you then find that the ring binders themselves obey the laws of thermodynamics. Solicitors now pay for "paralegals", in addition to secretarial staff, whose job it is to assist in the management of paper.

Managing paper actually requires a fair degree of skill and experience. If, as an inexperienced trainee solicitor, you are paginating a bundle, and you make a mistake early on, which you only discover later on, you have to make a manuscript correction to all the bits of paper thereafter. Then you have to re-write all the cross-references in the margins of the witness statements which you had carefully inserted, pursuant to the relevant rules of Court then in force as amended from time to time. You may have to take out the old copy documents and insert new copy documents. Whatever you do, there will be someone, Judge, leading counsel, who will let you know that they would have done it differently, and it is no defence that you were simply trying to follow the Chancery Guide, or whatever it may be.

Equally the Courts have to pay people to manage all this paper as well. An employee at the filing office has the job of stamping a filed document with a date (and, of course, such copies thereof as may also be specified from time to time in put the paper in the file, preferably in a meaningful order. Another employee needs to take the file to the Judge, master, listing office, whoever may need it, at the appropriate time. This process, so I am told, does not always work smoothly.

If that wasn't enough, solicitors have to prepare new bundles of paper for each hearing anyway, just so that the judge is not distracted by handling documents which are irrelevant to that particular hearing, and so that everyone can work off copies of the documents which can be referred to at the hearing by means of page numbers. Those new bundles, if filed at Court, have to be conveyed by Court employees to the relevant location for the hearing. It is, to use the ghastly phrase favoured by Private Eye magazine, triples all round for our friends in the timber industry.
In this short series of articles for Bar News, I will be looking at some of the ways in which more effective use of current technology could help to reduce the cost of managing paper, and actually do what it is supposed to do, namely make our working life easier. I will be describing some of the current initiatives being looked at by the Courts to reduce the requirement for paper and for making the life of the Court staff easier. There are other jurisdictions in which the legal professions are using IT much more effectively than us, and I will be discussing what lessons we, as advocates, can learn from them.

Part 2 - Reviewing a Document

Are you a materialist or an abstractionist? The difference lies in whether you prefer to print out an electronic document in order to review it. The symptoms of materialism in its chronic form were, until relatively, to be seen in the population in and around the Inns of Court in the form of a grossly enlarged briefcase attached to the unfortunate patient; more recently the affliction, in its terminal stages, has manifested itself as a deeply unfashionable suitcase on wheels. Most of us are materialists to one degree or another. Even Bill Gates has confessed to being one.

Why is it so much more satisfactory to review a document on paper? What a materialist likes to do is to see a whole page at once, get a handle on the position of paragraphs of importance on the page, take a peek at the top of the next page, perhaps flicking backwards and forwards so as to take in a paragraph as a whole. You can't do that on those computers of yours now, can you? Well actually you can to some extent. Firstly, you need to get a big screen, say a minimum of 21 inches. One day, and probably in the not too distant future, these will actually be affordable, so you should perhaps "tear out and keep" this article until that happy moment arrives!

Next you need to make some adjustments to your software to display a document in a form which is suitable for a normal human being. For computer techies of course, the most natural view of a document, and hence the default view for most computer software, is one which I describe as "papyrus" view, i.e. written on what appears to be a continuous roll of loo paper scrolling off the bottom of the screen. Microsoft shows an uncharacteristically humorous side by referring to this prehistoric view of a document as "Normal".

Now it may be over the top to blame poor document layout for the decline of great civilisations. No doubt trendy scribes with the latest papyrus hardware laughed heartily at their elders for the propensity of the latter for the somewhat inflexible "Pyramids of Giza" document view, although the archiving properties of that medium turned out to be superlative. Nevertheless it is not overstating the case to say that it was the quintessentially Napoleonic A4 document standard which successfully took man and woman into space, ignoring for present purposes the point that the Americans at least managed to launch their rockets using charmingly naïf paper formats such as "Letter", "Executive" and "Legal" in addition to imperial weights and measures.

Returning to the current era for a moment, in Microsoft Word you can select a "Reading Layout" view, which fits two pages side by side onto the screen. In Adobe Acrobat, two steps are needed: firstly select "Fit to Page", then, again under the View Menu, select "Page Layout - Facing". Now you have something which is actually readable. Clicking on the scroll bar turns the pages over. Try it out. You never know: this techie tip may change your life forever.

So far as the courts are concerned, a changing culture amongst practitioners in relation to handling documents on-screen is a necessary first step on the road to reducing reliance on paper. There are now several courtrooms which are provided with screens to display documents in heavy document-intensive criminal cases. Counsel examining a witness refers to the document by a code, and an operator displays the document on the screens.

As an observer on one occasion when the system was in use, I was surprised how well leading counsel seemed to adapt to it (without wishing to sound like one of my own putative papyrus scribes). I do not know how he prepared the cross-examination - whether by reference to paper documents in bundles, which some unfortunate junior had to cross-refer to the electronic document, or whether he had the electronic system in chambers. Perhaps someone with experience of using the system might tell me. Indeed if anyone has a techie tip which might help other members of the bar, perhaps you could send it in to me: robert.onslow@8newsquare.co.uk.

A presentational system such as the one I have just mentioned is a useful experiment, but is far from completely satisfying to the pure abstractionist. The abstractionist recognises that the advocate's business is an information business of precisely the sort that computers are designed to facilitate; that computers should actually increase the efficiency of our practices; and there is no philosophical law which says that homo sapiens should have to spend multiple days and suffer accelerated hair loss trying to do something as apparently straight forward as expressing a personal view as to what number a particular paragraph of an opinion should bear.

The abstractionist would, I suppose, go further and reduce costs by moving the clerks to Mumbai - and perhaps I shall leave the column resonating with that delicious thought until next time.

Part 3 - Upgrading your Toolkit

What are the tools we use to do our job? How could we use those tools more effectively? What new electronic tools could we deploy to do our job better? Perhaps early in the new year is the right time to consider these questions.

Barristers are past masters at handling rapid change to work practices. For the criminal Bar in particular, swathes of new legislation have to be considered at every turn. It is not only a question of learning the new stuff, but forgetting the assumptions, presumptions and strategies which were based on the old stuff. The civil Bar fares no better.

While these goal posts are constantly shifting, nay positively vibrating, there is an understandable reticence amongst the players to embark upon an examination of the question of whether the tools used to place the ball in the net, the football boots of the lawyer's world as it were, are capable of improvement.

Yet (and at the risk of raising the art of changing and straining metaphor to a new level) with the development of internet based legal research which has been taking place over the past ten years or so, the caddies' bag of the jobbing advocate has been bulging with a range of strangely shaped new golf clubs promising much enhanced personal success at a suitably enhanced prices.

But like their metaphorical golfing counterparts, electronic tools for the lawyer have to be treated with circumspection and a goodly dose of realism. Most importantly, if they are not used correctly, they will interfere with play.

For example, no information technology guru has yet improved upon the efficacy of a well written and well indexed text book for summarising legal concepts, conveying a context for those concepts, and perhaps most importantly, setting out and attempting to answer, the open questions arising indirectly from the words of a statute, or a decision of the Court. I actually believe that talented IT people will match or even improve upon the text book format in time, but they have not done so yet.

At the present time, electronic resources for the lawyer are essentially variants on a single theme: the ability to search the text of statutes and decided cases by keyword. This is a very primitive research tool. Keyword searches undoubtedly have their place, but are perhaps best viewed as a final checking facility after conventional, brain-led, research has been completed.

If online searching forms part of your legal research toolkit, you could try downloading the Mozilla Internet browser for free at www.mozilla.com.

The main feature of this software is that you can store several web pages, such as the text of a number of relevant decisions or statutes, under tabs within the browser window. In this way, you can create a little electronic "case book" tailored specifically for the problem which you are considering. Whenever you see a hyperlink to a case of interest, simply right click on the hyperlink and select "Open in New Tab" to add that case to your case book.

It's a small point, but a good deal better than having your nice desktop littered with separate windows: the digital equivalent of shuffling up the papers, which as we all know in real life is supposed to happen before the papers have arrived in Chambers, not after.

Another current feature offered by the publishers are daily legal updates. These currently come in a unique "read and forget" format. Perhaps in the future these could be delivered in a way which, in combination with a system of cumulative micro- CPD points, form a continuing, and hopefully memorable, tutorial. The electronic toolbox of the future will, I am sure, look very different from the medieval version available today. Legal publishers will soon be looking at ways of offering themselves as "participants" with you on your computer to push relevant legal content onto your desktop as you are using your machine to read and write. Like the officious junior hovering at your shoulder only too ready to tell you that your understanding of the law is essentially pre-Cambrian in origin.

If this terrible prospect causes you to reach, gasping, for the telephone number of the Neo-Luddite Society of Great Britain 24 Hour Helpline, don't panic. The electronic know-it-all will contain a design feature not available on the human equivalent, notwithstanding prolonged demand by silks up and down the land for as long as inner Bar was first divided from utter: namely an "off" button.