The advent of the photocopier, the email and the text and our increased tendency to communicate with each other in written form, together with a style of bundle production in some quarters which defaults to putting everything in, has produced an explosion in the production of documentary material in court which threatens to swamp the system and is an enemy to understanding.
A trial with (say) 150 lever arch files, copied at least 20 times is not unusual. In a recent trial before me, in which I observed that there seemed to be an awful lot of documents copied, the relevance of not all of which was apparent, I was told (not quite in these terms) that I was lucky not to have the 2.5 million from which these had been selected.
Not surprisingly some suggest that there must be a better way. Surely it can all be done on computer? Many of the documents will be in e-form anyway. If not, they can be scanned. Surely with sensible planning the case could perfectly well be conducted with everyone looking at a computer screen and no, or very few, documents physically copied. The idea is not new. I recall seeing about a decade ago a news item on the television featuring a paperless court. In a small and rather soulless court room there were two mobile flat top pedestals on the top of which sat a computer screen and key board and nothing else. This did not appear to me a convincing model.
Before we get to trials without paper there is the logically prior question as to what the putatively paperless “bundles” (i.e. computer files) are to contain. I was once asked by a partner in a magic circle firm what his firm could most helpfully do by way of preparation. When I replied, not entirely facetiously, that the most helpful thing would be a bundle of relevant documents, the first at the top and the last at the bottom, in chronological order eliminating duplicates, held together in a very strong lever arch file appropriately labelled, he looked at me as if I was a particularly stupid 12 year old.
But the proper assembly of such bundles is not a skill uniformly distributed even among solicitors of the highest calibre. Time out of mind the documents are not in chronological order (or are but, in limited respects should not be – e.g. because someone has enclosed in a later letter a document compiled earlier); or contain swathes of irrelevancies (often where only one paragraph of a 300 page contract is relevant). They are then stuffed (literally) into a file that is too small for them and with a deficient lever arch mechanism which collapses at an early stage. On the spine of each file appear, unnecessarily, the names of all 25 parties to the litigation, and of the solicitors, together with the elaborate corporate logo which marks them out from the crowd. Somewhere about 3/5th of the way down in 10 point font is the bundle number, which is not included in the inside of the file. The files are all the same colour and size. As a result it is impossible readily to distinguish one bundle from another - the only function of the label.
Judicial response to the idea of a paperless trial is unlikely to be uniform. Some may be entirely happy to have no documents at all or as few as possible. Some (increasingly few) may not want anything on computer. I am in the middle. I subscribe to the view that in a large trial you will need to have both paper and computer files. I say that for two principal reasons.
First, I do not find it easy to think about a case with the documents on computer and not in hard copy. I am not a Kindle judge (although I have one). I wish to read the document in front of me in paper form; to be able to underline or highlight it; and to make cross references and comments on it, all as part of a process of thought. Means exist for noting or highlighting contents on computer although I do not find them very user friendly; and, in any event, I do not wish to have to do it that way. I also wish to be able to thumb through the documents rather than scroll down a sequence of documents or search plethora of files. A physical search is often quicker. I also wish to be able to move a document from its physical position to somewhere else; or insert something in front or after it. Doing that on a computer file is possible but far from immediate. And I want to be able to make my own core bundle(s) or add to the existing ones as I go along. I also want to be able to compare documents with other documents from other bundles. The latter can be done on computer but, again, I do not wish to have to do it that way. Some documents (e.g. large size documents, plans, drawings and diagrams) need to be looked at in the hard copy form in which they were produced.
Second, some witnesses are not familiar with, or not comfortable in answering questions by reference to, documents on computer. If the document in question was created in hard copy, it may well be unsatisfactory for a witness to be asked about the computer version. He may not recognise it or readily find his way round it when it appears in that form. That said, in the Bloody Sunday Inquiry, where all the statements existed both in hard copy and on computer, there was usually no difficulty in asking questions of one witness about the statement of another witness that was put up on a public screen (as well as one for the witness).
But that required a dedicated (and very competent) operator of the system; and all counsel cross examined from hard copy. There are some obvious advantages in having documents on computer. They often have greater clarity and in any event they can be enlarged. Photographs, which, when copied in trial bundles often appear, to use Harman LJ’s phrase, as documents in mourning, can be perfectly reproduced.
Hard copy plus computerized documents may sound like the worst combination. It is not. What I have been saying relates to the critical documents (admittedly a category whose extent is usually debatable). There are frequently documents of which hard copies are not really needed. Every judge of the Commercial Court is familiar with gazing at a swathe of files, the product of many trees, dutifully brought in by clerks, which remain in their shelves, untouched and wholly or largely unreferred to - the invoices over a five year period, the vouchers for expenses referred to in the expert’s report, the parallel proceedings in relation to something of tangential relevance in a foreign court. There would be much sense in having them only in computer form, to be turned into hard copies only in case of need. Even if hard copies of documents are needed, attention needs to be directed to having them copied on both sides. Authorities and statutes merit this treatment.
The chief (and very considerable) benefit of having the documents on computer lies in transportability, reproducibility and referencing. The judge may have a second set of the documents in his room (or more likely the shelves in the corridor) but he or she needs to be able to move around (even to go home sometimes) with the documents at hand in a USB stick or the like, both to refer to and, where appropriate, to copy from rather than type out. I find the fat little mini-bundles too miniscule to be helpful. The ability to search is potentially very useful but there are considerable degrees of sophistication of the software and some of it is somewhat rudimentary.
In a case which I have just finished the submissions from one side had over 1,000 footnotes. This alarming statistic was mitigated by the fact that they were footnotes with hyperlinked references to the relevant document or the transcript, which could be accessed by clicking on the reference. I regarded this facility as invaluable since it completely avoided what would have been the need physically to locate the bundle, page and passage and then type out any quote. The submissions of the other side contained all the references relied on, so that it was possible to go to the relevant computer file (e.g. the Transcript file and select the day and the page number, which would then appear on the screen). The hyperlinked version which took you there direct was an added advantage (even though for some reason at the very end of writing the judgment the USB stick with the hyperlinked submissions gave up the ghost).
Computer filing costs money. In large trials it offers very real advantages in terms of increased efficiency and ease of operation. It is not a substitute for careful selection of the contents of bundles (and the elimination of waste material). If that is done paper trials can be perfectly acceptable. I doubt that truly paperless trials will arrive any time soon; but do not regard that as a source of regret.
Why Go Digital?
Peter Lewis, Chief Executive of the Crown Prosecution Service, answers
The Government has committed to providing a simpler, swifter and more transparent criminal justice service, and as part of this, the core agencies that make up the Criminal Justice System (CJS) have committed to adopting digital ways of working.
For some time there has been a drive to modernise and reform the criminal justice system, and to tackle its bureaucracies and inefficiencies. Digital working has now been brought into focus as part of a much wider efficiency programme that will reduce or remove the physical movement of paper, and people, around the system. For the police, CPS and courts, the aim is to replace the labour-intensive, time consuming and often repetitive exchange of paper-based information with a digital file they can create, update and share at the press of a button. Counsel will be provided with digital files, structured in exactly the same way as familiar paper bundles, but in a highly portable, usable package.
How will it work?
The majority of police forces are now transferring a vast amount of case information electronically, with the remaining forces coming online by the end of the year. Working digitally, prosecution or defence barristers receive information via CJS Secure eMail. This is a free-to-use service that enables the secure exchange of information across the criminal justice community. There are over 5,600 barristers with a secure email account and, in March alone, over two million messages were sent using this service.
The electronic bundle is created directly from the CPS case management system and comes with a contents page, which is formatted with bookmarks and hyperlinks throughout the document. This means that navigating from witness statements to exhibits can be done at the click of a mouse. The bundle is in the widely used ‘PDF’ format which will allow you to annotate and mark up using electronic colour highlighters and comment notes. Access to prisons and court custody areas has been agreed so that counsel can continue to work digitally while with their clients in custody. Previously prohibited items such as laptops are now permissible.
When will it be introduced?
While digital working is already taking place behind the scenes, signs of this digital transformation will soon be more visible in court. Electronic service will commence this year and testing is already under way for digital working in the Crown Court. Over 70 per cent of CPS prosecutors are already presenting in court using tablet devices and by May 2012 that will have been extended to all CPS prosecutors.
In major litigation the use of electronic presentation of evidence is on the increase, with plans to extend its use over the next twelve months. The courts will also begin to see an increased use of video technology to enable police officers, defendants and prisoners to give evidence remotely.
What issues should the Bar be aware of?
Moving to new ways of working is not always easy. The CJS agencies have been made to think hard about their business processes and how they operate more effectively together in the new digital world. It is appreciated that greater use of digital working can have wider implications, such as having the right computer equipment and the need to protect the information being held on electronic devices, for example, by using encryption.
Concerns regarding the practicalities of working without paper have been voiced. However, there is an expectation that, for now, there will still be a need for some paper in the process. For example, where there is a need to print statements for the witness, printing will be done on the CPS printer at court or be printed
How can counsel help the process to work?
The first step towards working digitally is for barristers and chambers to sign up for a Secure eMail account. This will enable them to communicate securely across the criminal justice community and be served with electronic bundles. Of course, Secure eMail is not the only way to serve case files in a digital format. The CPS has been serving digital information in large and complex cases for many years using media such as CDs and DVDs and this will continue.
How will the CPS help the process to work?
Talk of moving to a digital system is not new. Nationally, the CPS has been engaging with the Criminal Bar since November 2010 to pave the way for what is now viewed as an inevitable move away from a reliance on paper. The CJS efficiency programme is committed to continue to work actively with the profession to understand and resolve issues surrounding the move to digital working and paperless trials that are specific to the Criminal Bar.
Ultimately, digital working will mean less paper, less movement, speedier flow of information - and a simpler, swifter and more transparent criminal justice service for those involved.
Paul Keleher QC gives Counsel a criminal practitioner’s view
The concept of the paperless office is one that has remained just that – a concept. However most organisations and businesses now communicate material electronically. In 2010 the Bar Council, in an attempt to help the Government achieve savings in the Criminal Justice System, formally proposed that more effort should be put into transmitting material paperlessly. The CPS were thinking along the same lines and in 2011 announced that as part of their drive towards greater efficiency they were planning to do just that.
We have yet to see how this works in practice as the CPS overcome the first hurdle – which is to ensure that they receive everything electronically before ‘bundling’ it all up for onward transmission. But what will it mean for those of us at the Bar, under increasing pressure from decreasing fees to make ends meet?
The most common complaint I have heard is the cost; that this is just one more burden on the criminal Bar, forcing us to print out the material. I do wonder to what extent this is a significant concern. I have received briefs paperlessly in the past and it is not uncommon in cases which are very voluminous. In fact those large cases that I do receive on paper I now pay to have scanned to my computer as I find it is much easier and more efficient to prepare such cases that way, rather than having to manhandle dozens upon dozens of lever arch files. It also means I can work wherever I want – at home, in Chambers and I can have all the material at court without hiring a pantechnicon to transport it all there. In the case of smaller briefs one may want to print out all or some of the documents, so how costly is it?
In Chambers our copies cost approximately 1p per page, including the cost of the hardware, the consumables, maintenance and the paper; so a 200 page brief costs £2 to print. Of course this all mounts up but these costs are offset by savings in reduced storage, transport costs and no longer having to scan anything. Overall the change may be either cost neutral or even turn out to be a money-saver.
Although I had sometimes in the past received paperless briefs in very large cases, I had not yet conducted a trial paperlessly. I was then instructed to defend a case in Exeter Crown Court, and being without a car at the time and so with no way to transport the boxes and boxes of evidence from London to Devon, I decided to use the trial to do just that. Since then I have conducted all my cases using my computer rather than the files of evidence. One might wonder how my clients, opponents, judges and juries have found the experience, but overall it has been very positive.
Before you assume this is all very well for a dyed-in-the-wool techie who barely knows how to write anymore, I should just say that I still prefer a fountain pen to a Biro and slightly more luxurious notebooks to the traditional blue counsel’s notebook; it is just that a computer is so much better for some things.
In the first place, one can hope that the days of “missing pages” will be a thing of the past as will the experience of getting three boxes of assorted papers with no immediately visible index. No longer will anyone receive the third, fourth or even fifth generation photocopy, blurred, cut off or with multiple vertical lines running down the page. How many of us have turned up at court to discover that the final 1500 pages of evidence were served last week on one’s solicitor but have yet to filter through the system to counsel?
I do not for a minute imagine that everything will be served on time and seamlessly in the future, but the potential for missing material will surely be reduced. I have already mentioned the ease and convenience of being able to work anywhere and without physically moving the papers. Perhaps the other most obvious and convenient aspect of electronic working is that an electronic file of evidence can be searched in seconds to find occurrences of anything one wants – a name, a vehicle registration number, a telephone number. How many times have you struggled to marry an exhibit with an incomprehensible witness reference number - RGT/120312/14B for example – with the statement of the witness producing it? You might track down the witness whose initials are RGT, but what if they have made twelve statements? This is not a problem with electronic searches.
I cannot imagine how anyone works effectively analysing mobile telephone records by eye alone, working from a paper copy. If available in a spreadsheet format such material is easily searchable, can be filtered to find just the numbers one is looking for, and can be used to produce an infinite variety of alternative schedules to illustrate whatever points one wishes.
Having said all that, I would be the first to admit that I cannot do everything off a screen. I have yet to master the art (and perhaps I do not want to) of peering at a screen for my notes and material whilst cross-examining a recalcitrant and hostile witness who has given three different versions of the facts in statement, interview and finally in evidence. Instead I print on good old-fashioned paper any crucial witness statements that I shall cross-examine to, my notes with assorted page references and any other material that I am likely to refer to repeatedly or in detail in court. My notes I may well have originally printed out from my computer but they are usually liberally annotated by fountain pen as I have second and third thoughts before and often during cross-examination. I keep these documents in a core file the size of which varies from case to case, but the vast bulk of my material remains in electronic form and is never printed off.
As with much modern technology, so-called paperless working may never completely replace the venerable ‘user interface’ of a notebook and pen, but it is certainly a powerful aid to preparation and performance.
A 2012 Reality?
Helen Davies QC, Edward Harrison Brick Court Chambers, Members of Mr. Abramovich’s counsel team
The Berezvosky v Abramovich litigation, heard at the end of 2011 in the Commercial Court before Mrs Justice Gloster, was a high profile showcase of the use of electronic trial bundle software in large commercial litigation. The main advantage of electronic bundle software is also the most obvious; sets of bundles that in physical terms would struggle to fit into many barristers’ rooms can be securely accessed via a computer, laptop or Ipad from any location with internet access. The ability immediately to access the entire trial bundle from anywhere with an internet connection was particularly helpful during preparation of the case, as well as for those members of the legal team and clients, working from other locations.
In addition, with counsel teams of nine and seven barristers representing the main parties, as well as large teams of solicitors, and with bundles running to 280 A4 volumes, the use of electronic trial bundles provided a solution allowing each member of the legal team separately to follow proceedings by inputting bundle references into the numerous computers installed in Court. In Berezovsky v Abramovich each access point connected to a laptop running LiveNote, together with a separate monitor providing access to the electronic trial bundle. Whilst this led to a proliferation of monitors this meant that each member of the legal team was able independently to conduct research from Court on any aspect of the case. A separate, centrally controlled, monitor also displayed each document actually being referred to during the course of the trial.
The software package used in Berezovsky v Abramovich included a variety of functions for electronic annotation of the bundles. Those annotations or other notes or comments can easily be shared amongst other members of the legal team. As with many other providers of electronic trial bundles, the software allowed searches to be conducted of either the entire trial-bundle, or a specific document or sub-folder. In addition, it was possible to create specific “topic” bundles, each page of which includes the relevant trial bundle reference to the relevant document, and which can again be shared amongst members of the legal team – a function which can be of great assistance in preparing cross-examination, in particular.
A further distinct advantage of a fully electronic trial bundle is the ability to include hyperlinks from written submissions to documents in the trial bundle, including links to the transcript. This is significant, as it allows a judge (or any party) to click on a link in a written document and immediately be taken to a separate screen showing the document under discussion. This may in turn impact on how parts of written submissions are presented (for example, there is potentially less of a need to include lengthy extracts from transcripts and underlying documents if the reader is able to link directly to the relevant document on a separate screen).
However, whilst the phenomenon of the “paperless trial” will undoubtedly continue to gain widespread acceptance as the natural option for large commercial litigation, Berezovsky v Abramovich also highlighted many of difficulties associated with this development. Despite the use of electronic trial bundle software, the Berezovsky v Abramovich litigation was not in fact “paperless”. To the contrary, several hardcopies of the trial bundle were accessible in court, both for use by witnesses and by Counsel, and cross-examination was conducted almost exclusively (and by all parties) by reference to hard-copy documents. There were a number of reasons for this.
First, as a matter of fairness to the witnesses, many of whom were either giving evidence in a foreign language through simultaneous interpreters, or giving evidence in a language which was not their first language, all parties agreed that a complete hard copy set of the trial bundles should be available for their use whilst being cross-examined. Second, for the advocate conducting the cross-examination, the limitations imposed by only having access to one (or even part of one) page of any given document at one time can be difficult to overcome. This is not only a matter of having the very ready ability to turn forward or back a few pages as required, but also the absence of a straightforward mechanism for comparing documents side by side.
The only practical solution in such cases is for the advocate to have access to (and a witness to be provided with) the two hard-copy versions of the documents being compared. This issue is brought into focus in trials involving foreign witnesses where numerous documents are disclosed in a foreign language, since a witness will frequently want to be able to have in front of him or her both the original document and a translation. Third, even though electronic trial bundle software packages may allow bundles to be annotated electronically, it is likely to be some time before advocates have sufficient familiarity with such a system for this to be adopted as a platform for cross-examination, or as a genuine alternative to the use of an annotated hard-copy version of the trial bundle.
In addition, one consequence of the use of electronic trial bundle software is that the process of creating the trial bundles becomes a collaborative one between the legal teams and the electronic software provider. In practice, at least with the software package used in Berezovsky v Abramovich, the addition of documents to the trial bundles was no longer simply the preserve of the legal teams. Rather, for documents to be added they had first to be sent to the software provider, for uploading, which inevitably slowed down the process of document addition. When, as is inevitable in any lengthy litigation, documents became available shortly being required for use in Court, this meant that separate hard copies had in the first instance to be provided.
Given the early stage of development of many electronic (particularly “cloud-based”) software packages, it is perhaps unsurprising that there remain areas where the software has scope for improvement. For example, the speed at which a file could be accessed using the electronic trial bundle software was on occasion unpredictable, particularly when a single file was accessed simultaneously from several access points during the course of the trial. This was, however, a problem the software-provider’s consultants were able to address and largely eradicate as the litigation progressed. Difficulties were also occasionally encountered in accessing the software from certain operating platforms, or when using certain browser software. A further area where there may be scope for improvement is by enabling a wider range of search functions, such as those that are currently supported by most disclosure databases.
There are several practical steps that can be taken to maximise the advantages of electronic trial bundles, and to mitigate against possible risks. Since the most critical issue is reliability, an early priority is to determine whether the software-package has previously been tested in the conditions that will exist in the
litigation. This includes considering both the number of users that will be accessing the software at a single time, and the likely size of trial bundle – both electronically and in terms of the total number of documents that will need to be managed.
If at all possible, a choice of software and service-provider should also be made at an early stage. A decision should ideally be taken before the disclosure process, since deficiencies in the data obtained when scanning documents for disclosure purposes will be carried forward into the trial bundle. If the service-provider is consulted at an early stage they will be able to assist in developing a system for scanning documents that is consistent with the trial bundle’s optical recognition software, avoiding a problem that occurred in Berezovsky v Abramovich where certain scanned documents were not fully supported by the electronic trial bundle software, and hence were not searchable.
When selecting the electronic trial software, it may also be helpful to consider the merits of both the software package and the level of support that will be available from a software-provider throughout the litigation. Both legal teams may require training with the use of the software, and as already noted, updates to the trial bundle will need to be made directly by the software provider, who will need to be available throughout the litigation process to manage and address technical problems. The delays occasioned by the interposition of the software provider in the trial bundle production process, also mean that particularly early consideration should be given to the preparation of the trial bundles if such software is to be used. It is likely that those in the legal team responsible for the bundles will be in dialogue with the software-provider on almost a daily basis. Ongoing dialogue between legal teams and software-providers will also help identify problems before they arise. For example, identifying at an early stage a form of referencing that can be easily hyperlinked (and communicating this within the legal team) will ensure references are not included in written submissions in a format not supported by the relevant software.
Overall, the electronic trial bundle software used in Berezovsky v Abramovich brought with it many distinct advantages, as well as various issues that would not otherwise have arisen. The first case to be heard in the new Rolls Building was not in fact a paperless one – but as the software develops and as Court users become more familiar with the technology, the volume of paper required for a trial of such a magnitude will undoubtedly diminish. Whether a fully paperless trial will become a reality in 2012 remains to be seen.