Wednesday, July 24, 2024

BARRISTER MAGAZINE

Read the Barrister Magazine, a fantastic legal resource for online News, Articles & Information for Barristers in the UK. Keep abreast of Law Articles, Find a Barrister, Subscribe to our Articles on the Latest Legal News, Legal Services, Law Events, Expert Witnesses & Barrister Services. Its all here, ready to educate, inspire & Inform

Re-thinking litigation workflows for the 21st century

Comment & OpinionRe-thinking litigation workflows for the 21st century

When I started my career as a barrister in the early 1990s, many of our working practices had been unchanged for decades, in some respects for centuries. Most instructions still arrived by courier (or DX) tied in pink ribbon. Hard copy opinions were stapled with a corner tag and signed off with a looping mark on the back-sheet. The chambers diary was maintained in a single well-thumbed book on the senior clerk’s desk. Telephone messages were recorded on blue sheets of paper that were left on our chairs.  The height of innovation, in my first couple of years in practice, was the “New Law Fax” service, providing by fax the case summaries that later became Lawtel.  I still recall the struggle I had to persuade my colleagues that we should subscribe!

Despite all that has changed in the intervening 30 years, the most remarkable thing is what has remained the same: the core process of building the case. A time-travelling KC from the Edwardian era would still find little altered from his own day in the way that we assemble evidence, build arguments and predict outcomes. He would, however, be shocked by the volume of evidence and complexity of the issues that we now have to grapple with.

Those challenges have crept up on us over the decades. Each advance in technology (photocopiers, word-processors, email, social media etc) has added to the volume of evidence that needs to be reviewed and managed by disputes lawyers. Litigation has also become more complex, for example because of the growing complexity of corporate activities and the increasingly elaborate methods used by fraudsters to cover their tracks. All these things have greatly increased the scale and difficulty of litigation, whilst our core processes have stood still.

For me, the crunch point came while working at the heart of the defence team on the RBS Rights Issue litigation between 2013 and 2017. In that case, despite using state-of-the-art tools, employing an experienced project manager and fielding a team of extremely able solicitors and barristers, we still struggled to manage the case effectively.  We had to scale up the team to get things done in the required timescales (we peaked at about 250 document reviewers in a Belfast back-office and about 30 solicitors and barristers in the London team), but it was impossible to coordinate all these people effectively using the tools available to us. It was evident that the teams representing the various groups of claimants were facing similar challenges. That case convinced me that the current approach to managing litigation was not fit for purpose.

When the RBS case finished, I took some time away from the law, using some of that time learning to code.  Then, in 2018, I embarked on a project to develop a solution.  I recruited a team bringing in development, design and project-management expertise as well as other senior professionals.  Over the past four years we have created and road-tested a technology platform for managing evidence-based analysis, not only in litigation but also in other contexts. We named it “Associo”, capturing the concept that the central missing feature of the existing technology toolkit was a way of working easily with the associations between the pieces of information that make up the analysis.

As with any innovation project, the key to developing a good solution is understanding the problem. I identified a range of factors that critically undermine the efficiency and reliability of the service that even the most talented and well-resourced litigation teams are able to provide to their clients. These include the following:

  • Repeatedly rebuilding the analysis, re-finding information and chasing references: The analysis of the case develops in people’s heads and is repeatedly recorded and re-recorded in the various documents that you need to produce, each document expressing parts of the same underlying analysis from a different perspective: correspondence, advice, statements of case, lists of issues, chronologies, witness statements, written submissions etc.  The process is repetitive rather than progressive.  You are also constantly having to reassemble information from a variety of sources to ascertain and reference your best case on each point.
  • Lost or forgotten relevant information: Individual team members build up knowledge in their heads as they find information relevant to the parts of the case for which they have responsibility, and that knowledge is often not shared effectively across the team. When team members leave, their knowledge has to be reconstituted because it was not effectively and comprehensively captured by their working processes.
  • Unfocused evidence collection:

 Document review: Document reviewers, lacking a clear and up-to-date line of sight to the analysis developed by the ‘front-end’ team, don’t get the satisfaction of seeing the significance of what they find, and tend to over-capture information.  Unrecognised nuggets of genuinely novel and important information are buried in a mass of information fed through to the already overburdened front-end team.

  • Witness statements and expert reports: There is no easy way to keep track of the points that factual and expert witnesses need to cover and the important collateral evidence relevant to those points.
  • Difficulty keeping track of the merits: Detailed merits advice cannot be reliably updated without being substantially re-written, a time-consuming and expensive exercise that is rarely performed. But impressionistic merits updates cannot reliably track the cumulative impact of multiple changes affecting different issues.

In addition to the impact on the service provided to clients, these shortcomings in the process take a toll on the team. The fear of being blindsided by points that we have not reliably tracked is a major cause of excessive working hours and stress.  The long hours culture also drives out of the profession many parents of young children (particularly mothers) and contributes to the lack of diversity in senior positions within the profession.

 

The solution to all these problems is conceptually simple but requires a change of approach. Litigation teams need to move from fighting the case one document at a time to carrying out a systematic information management exercise.  Teams should:

  • develop a “master analysis” in a structured form that is visible to the whole team;
  • use the master analysis to guide investigations and document review;
  • channel relevant information into the master analysis as it is found;
  • predict the outcome within the master analysis, and update it regularly to take account of new information;
  • use the master analysis to guide the drafting of all documents listing issues or containing advice and arguments.

In short, litigation teams need to see and build their analysis collaboratively in much the same way as building a big family jigsaw puzzle.  By doing so, all the work on the case will be greatly streamlined, because all the relevant information will be available at everyone’s fingertips, rather like the pre-prepared ingredients coming out of a “Hello Fresh” box.

Associo unlocks the ability to work that way.  As well as holding tables of information (chronologies, lists of issues, documents etc), Associo enables the analysis to be developed in a graphical layout, with all relevant information linked up in a logical way that feeds into the bottom-line outcome(s) that the parties are contending for. Visual analysis takes some getting used to, because we are so accustomed to setting out our analysis in writing, but it is key because it enables all aspects of the analysis to be developed simultaneously: lists of issues, advice, arguments and chronologies all living within the same framework where each proposition and each piece of evidence only needs to be recorded once.

The incentives for barristers to support this change of approach are compelling.  We get the opportunity to focus more on the highest value and most enjoyable aspects of what we do – developing and presenting persuasive arguments and making well-judged assessments of the likelihood of success on each point – with less of the distraction and stress experienced currently.  Trial preparation becomes less of a slog because all the relevant information and arguments are already organised.  Greater efficiency will also enable us to help clients who cannot currently afford our services, improving access to justice.  Improved information sharing and reduced reliance on memory will enable those who wish to enjoy a better work-life balance to do so while providing concentrated bursts of high value input in the time they have available.

It was suggested to me that I might title this article “Technology solutions for a Stone Age industry”. However, notwithstanding my struggle in the early 1990s to persuade colleagues to subscribe to the New Law Fax service, I do not think that is a fair characterisation of the industry. I am finding that most barristers and solicitors who try this new approach are very receptive to it, recognising a combination of efficiency and rigour that will improve their working lives, help their clients, and give them a significant edge over those who carry on preparing their cases the old way.  It could quite quickly become the standard way of working collaboratively on cases.

David Blayney KC, Serle Court Chambers

Check out our other content

Most Popular Articles

Translate »