Litigation Support and
Electronic Disclosure
Choosing Litigation Software
This is one of a
series of articles about a solicitor undertaking his first electronic
Disclosure exercise. We look in turn at each of the components in the
process.
This article on choosing software, like its
companion article on selecting a litigation support provider, is
product-neutral. It includes no recommendation of a specific supplier and
deals in broad choices only.
Commonality between applications
There are perhaps 20 litigation support
software products generally used in the UK. They emanate mainly from the US
and (in one notable case) from Australia and that fact pitches us straight
into our first key point - there is little or nothing inherent in litigation
software which is specific to any jurisdiction.
Disclosure rules may vary, and some
terminology is different. Other jurisdictions may lay greater emphasis on
post-issue depositions and less on pre-action documents; the UK emphasises
the list of documents where the US is more concerned with the documents
themselves. The basic
mechanism for capturing and recording document information, however, is much the same
anywhere.
The core information about a document is
pretty standard - everyone wants a brief description, and a date, the
senders, recipients and copyees, and may want a document type and some means
of identifying the source. Documents must have a unique number in the
overall collection and another number reflecting their position in a served
list.
Furthermore, most people expect much the
same functionality - at the least that they can get data in and edit it, add
their own criteria, sort and filter the database, and get information out in
a form which is both helpful and compliant with court rules and their
opponents' legitimate expectations.
Differences between products
Although there is inevitably much
commonality between products, there are also differences. There are major differences
of principle, minute differences of user interface, and a host of points of
middling importance - middling, that is, until you need what suddenly
appears to be an obvious function which you had not thought about and
discover that the developer had not thought about it either.
This buying decision is in many ways no
different from any other - like buying a washing machine or, indeed,
choosing a lawyer. Some people must analyse every option, see every demo and
define a detailed specification. Others rely on gut instinct and the view of
the man in the pub. This may seem reckless, but I would steer the litigation
support novice more towards the latter approach. I would feed my gut
instinct with some broad parameters and perhaps be choosy about the pub, but
most of the software around is adequate (at least) for most Disclosure
exercises.
I must at once qualify this apparently
reckless advice with some examples of the "broad parameters" which I have in
mind.
Scale and Ownership
Since we are starting with a clean sheet
here, let us begin by asking if you need to buy any big
application at all.
Do you actually need a dedicated
litigation support application?
Consider whether an Excel spreadsheet or
Access database would be adequate, or whether your needs would be met
with a cheap non-specialist database like askSam. If nothing else, these
are low-cost vehicles whose data can be promoted to grander things if
your needs increase. I will cover this in more detail separately, but
for now I just plant the thought that these tools offer relevant
functionality without big outlay or major buying choices.
Rent, don't buy
If you do need a dedicated product (and
nothing said above is meant to imply that these are not worth having),
you do not need to commit from day one to a capital expense. Most
software can be rented - the cost is then directly attributable to the
specific client and matter, it can be cut off when the case settles, and
it offers you the chance to understand the concepts and the functions
which will inform your subsequent decisions.
Access and Responsibility
Many litigation cases really do require 24/7
access by multiple users from remote locations. Many more involve one user
in his or her own office, merely hoping for improved efficiency in handling
mid-sized document populations, keen to get into e-disclosure but with no
need - or budget - for all the facilities which are on offer.
How many users and where are they?
If any are outside your own building then the software must either be
accessible over the web or capable of being sited in more than one place
(raising issues of mutual updating etc).
Will the software sit on your own
network or externally?
This may turn in part on the answer to the previous question as to
external users - if your network is not set up for external access then
this question answers itself. Just as important is the question as to
who will look after it.
Functionality and Price
The lists of functions offered by some
applications can bewilder more than they inform. A fully-drawn specification
for the supply of a litigation support application might run to over a
hundred pages. Both have their place. Unless you are already reasonably
expert, however, the more exotic functions are meaningless and, in any
event, a developer's one-line claim to a function tells you little about how
it will work for you.
Reduce your requirements to
essentials
Getting data in, editing it, finding
what matters, listing it and exporting it are the main functions. This
begs a thousand questions, and these primary purposes have multiple
methods and sub-functions. Nevertheless, this list is a good starting
point.
I have recently seen an extremely
intuitive means of getting raw data into an application, and an export
routine which appeared to cater for every foreseeable permutation.
Unfortunately they were in different products. There are going to
be some compromises.
Ask for opinions
You can overdo this, but it must make
sense to find what other people use. The people you ask to do your
scanning and coding will have views both as to what is good for them and
what their other clients use. Ask software suppliers for the names of
clients (you will only be offered the satisfied ones but that is better
than nothing).
Get an estimate of cost
Pricing structures vary. Some are simple
all-inclusive costs; others have add-on modules which are priced
separately so you need to be clear what you get for the base price. Get
buying and renting costs for comparison purposes. If renting, what are
the minimum terms and notice periods? What support and other fixed or
variable charges are there? Are there any off-price-list options which
would suit you better?
Don't forget that there will be other
costs whether internal or external - of getting the data in and out, and of
external hosting if you go down that route. These appear up-front - they
stare you and your client in the face at the outset - but handling Disclosure is going to cost money anyway, a factor
which is often overlooked when the estimates come in.
Ask for Demonstrations
Any software supplier will be keen to
show you the product. Make a provisional shortlist first based on the
other factors, because you don't have time for full demos of several
products. Get it down to two or three on the strength of recommendations etc, and
make sure the suppliers shows you the functions important to you (they
will actually want you to see the starry new functions - let them, but
only after they have shown you the things which matter to you).
Support and Responsiveness
Assume you find an application which appears
to do all you want, which has at least one user willing to speak up for it,
and which you can afford. The critical area which is left is the back-up
which you will get from either or both of the immediate supplier and, if
different, the developer.
Support
Who will you contact if something goes
wrong? Will they be there when you want them? How quickly will they
respond? If the problem involves a bug, will it be fixed? Now? or when
the development cycle returns to that function?
Responsiveness
There are two aspects here. Does the
developer respond positively to your suggestions? This does not
necessarily mean that they jump to include your every whim, but it is a
plus if they respond at all, even if the answer is a reasoned rejection
of your suggestion.
More importantly, do they respond to
market changes? This web site includes a summary of the proposals made
by LiST, the influential Litigation Support Technology Group, including
a draft Practice Direction and a
draft Data Exchange Protocol. Some form of
these proposals will become the norm in due course, in practice if not
in law. It will matter very much if developers take account of these new
norms - which can, indeed, only really become norms if the developers
make it easy to comply.
Training
No great explanation is needed on this
topic. Have the users properly trained in the use of the software. Yes, it
is another up-front cost, but the cost of having them learn on the job is
much higher.
Part of
the purpose of this site and of my business is to remove some of the layers
of mystery and to make electronic disclosure accessible to users with little
or no experience of it.
This is one of a series of articles aimed at
demystifying the processes of e-Disclosure. The series includes:
Introductory
e-Disclosure for
Everyman
e-Disclosure -
the basics
Getting
started
Detail
The sources of Disclosure
Documents
Documents,
Disclosure Data and Metadata
Choosing
litigation software
Litigation Support Providers
If, meanwhile, you think that I might be able to help you,
please contact me.
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