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If there is an art to litigation, it is the art of Georges Seurat. The 19th century French painter used the science of optics to pioneer a style called pointillism in works like “A Sunday on La Grande Jatte.” His paintings are a study in perspective. They consist of tiny dots of color on canvas that, when viewed from a distance, appear as a vibrant scene rather than a collection of points. The litigator works with different media. He uses evidence in a courtroom rather than paint on canvas. Yet, like Seurat, the litigator faces the problem of perspective: how to make judge and jury see the picture as a whole when it, too, is just a collection of points. Computer technology has come along to make the lawyer’s task easier and his pictures more powerful, and with it have come questions about whether the law is ready for multimedia trials and whether they may become too expensive and too powerful. Litigation is a fact-intensive process. Lawyers discover the facts then bring them to court as evidence to reconstruct past events from a God’s eye view. Of course, there are other ways to settle disputes — trial by fire and trial by battle are two that were popular once — but litigation is preferred in the modern world. What computers bring to litigation is a superhuman capacity for the storage and retrieval of facts and the ability to reconstruct events from a variety of perspectives. Computers are increasingly used at every stage of a case. In pretrial, they digitize and manage documents and eliminate, literally, the heavy lifting of paper that was the litigator’s burden. Computers also massage the facts and allow lawyers to see the case from different angles. At trial, computers project evidence on television monitors or screens and enhance opening and closing arguments by use of presentation software. And most dramatically, computers run animations and simulations to reconstruct events or display processes in order to help the jury visualize what is at issue. In the parlance of the trade, the three technologies are referred to as electronic document management, case analysis, and trial presentation. ELECTRONIC DOCUMENT MANAGEMENT Electronic document management of litigation is a complex, multiphased process. It begins with the digitization of a document. This means running a piece of paper through a scanner. Like a printer working in reverse, the scanner converts the page into a computer file. But the file is only an image of the page, like a photograph. Unless more processing is applied, the computer cannot recognize letters or words in the document. The additional processing is called optical character recognition, or OCR. OCR software converts a scanned image into a text file whose letters and words the computer can recognize. This text file can be searched via computer for words or phrases that might be buried anywhere in thousands or millions of digital documents. OCR software isn’t perfect though. It frequently makes mistakes when converting a scanned image into digital text. The name Smith might be converted to Smilh, or a crucial word like “not” might be missed completely. For this reason, OCR alone cannot be relied upon. Lawyers always need a digital image as a backup of the text version of a document. Still, the important advantage of digital text over a mere image is that it allows word searches. OCR’s limitation is that it cannot read handwriting and graphics, and it does poorly with invoices, forms, and disheveled documents. The only solution is to scan these documents to an image file and then add textual coding information, such as the author, date, recipient, subject, and source. At least 10 different categories of coding are the minimum. But since such coding must be done by humans, it is significantly more expensive than the scanning and OCR, which are accomplished mainly by machines. The advantages of electronic document management in big cases are clear. Imagine a case with a million pages of documents and 250 depositions. Then imagine the salaries and rent needed for an army of clerks and paralegals, housed in large offices, to sift through those million pages repeatedly to retrieve, photocopy, and reorganize papers for use in pleadings, depositions, and trial. Investing in digitizing the documents means the million pages will be available for instant retrieval and display via computer anywhere in the world. In big cases, electronic document management is always cost-justified. The costs of electronic document management have come down in recent years so that, when coupled with the advantages it offers, electronic management can be justified even in small cases. Indeed, lawyers who disdain the technology run the risk of overlooking key facts that their computerized adversaries will not. One measure of the cost of digitizing documents is the price charged by outside contractors who call themselves document management specialists. After noting that prices are negotiable and depend on such things as the number of pages that are stapled and the quality of the documents being digitized, one company gave a ballpark estimate of $2,300 for a 10,000 page job, calculated as 13 cents per page for a scanned image plus 10 cents per page for OCR text. The cost for coding image files would be an additional $1.80 per document for 10 categories of coding. Estimates may also be obtained online at www.pagebid.com. Of course, digitization is only part of the total cost of electronic document management. It gets the documents onto a CD-ROM disk or other media. However, the litigator still needs computers and special software to read and search those disks. Law firms with a large volume of litigation have in-house litigation support specialists to advise on such matters and to oversee the firm’s electronic document management systems. Law firms with only an occasional need for help can use consultants and document management companies for advice and support. The most widely used document management software packages are Concordance and Summation. Both are considered big-case software. Although a discussion of specific features is beyond the scope of this article, suffice it to say that both programs are relatively expensive and take time to learn. Other document management software, although not specifically designed for litigation, may be less costly and more user-friendly for the occasional litigator. Documents produced in computer format during discovery, such as e-mails, can generally be imported without expense or difficulty, although it pays to get advice from experienced document managers before attempting this. Transcripts from depositions are easily integrated into the document management system. The transcripts usually don’t need to be scanned into the system because court reporters can provide electronic copies on floppy disk or CD-ROM. Key portions of audio and video recordings of the deposition may also be converted to digital form and incorporated into the management system. Concordance and Summation can retrieve and display almost any digital document, whether it is an image file, OCR text, deposition, e-mail, or digital audio or video. Many court reporters not only give digitized transcripts on CD-ROM at the end of the day, but also offer feeds of the transcript in real time. Those attending the deposition or trial can use their laptops to watch the witness’s words scroll by as soon as they leave his mouth. What’s more, the feed can be delivered anywhere via the Internet, meaning a partner in Washington, D.C., can monitor a deposition in progress in Seattle. The power of all this digitization becomes apparent once everything is in place. If you want to depose Mr. Smith and you want to see every memorandum to or from him, the computer will do that instantly and print out copies for use at deposition. Or if it is midnight and you are trying to finish a brief and want to read again what Smith said in his deposition about when he first learned of the product defect, the computer can immediately find and display that part of the deposition. In short, electronic document management takes most of the manual labor out of the pretrial phase of litigation and produces a better product. CASE ANALYSIS Case analysis is a thought process, the seeing of the forest for the trees. Electronic document management saves the lawyer the time and frustration of retrieving facts from file cabinets full of documents. Case analysis technology helps her look at relationships among the facts. This technology should not be overestimated, though — at least not yet. Computers are no match for the human brain when it comes to legal analysis. The technology is still in its infancy. Document management software performs some functions that might be considered case analysis. For example, sorting all memorandums chronologically that are to or from a witness permits the lawyer to see events from that witness’s perspective. Search functions can be used to help too. Suppose that the lawyer wants to know about meetings between two company engineers, Jones and Brown. With document management software, the document database can be searched for the occurrence of the names Jones and Brown in the same sentence, paragraph, or document. Thus, working with document management software, a lawyer has the ability to look at the case from different angles and to get the results immediately. The software can be even more helpful when applied to coded documents and to lawyers’ notes and summaries. For example, if lawyers have prepared chronological summaries of depositions and key documents, then the computer can instantly put the entire case in a chronological sequence, something that would take weeks to do manually. But computer programmers are trying to do more with new software. Casesoft Software, a division of the trial consultant DecisionQuest, has three novel products aimed at helping lawyers analyze a case. The first, CaseMap, is designed to help the lawyer think through the case by putting the issues, witnesses, key facts, and other details into a computer matrix, which will then show, at a glance, what evidence is available on each issue and what more is needed. A second and more intriguing product is TimeMap. If the lawyer provides the key dates in both his and his adversary’s cases, then TimeMap will display them on a time line, graphically revealing how the differing chronologies stack up against each other. A third and still evolving piece of software is NoteMap. The idea behind NoteMap is to permit a lawyer to develop a case outline and to attach digitized documents and deposition transcripts at the appropriate spot in the outline. Once this is done, the lawyer has an outline of her entire case including the exhibits and testimony that will be needed. Scopeware takes a different approach to giving perspective and is a significant advance in this regard. It is not strictly litigation software. David Gelernter, artist and professor of computer science at Yale University, created the program for the purpose of giving a more natural view of a database of documents on computer. A demonstration of the software is available online at www.scopeware.com. If you have a collection of digitized documents and launch a search for Gelernter, for example, the software retrieves all documents containing that word and displays them in reverse chronological sequence as pages stretching from foreground to horizon on your screen as though overlapped on a desktop. “Streaming” is how the software refers to such a view. The software also offers other ways to look at the documents. In its present incarnation, Scopeware probably isn’t suited for the case with a million pages of electronic documents, or even for one with 50,000 pages. In fact, it was not designed for litigation at all, but rather to let you find documents on your personal computer or local area network. Yet the software gives such an interesting and intuitive view of a document database that even senior partners could use it to find exhibits during trial, and its artistic view of electronic documents will likely be copied. Still, there are the limits to how far computers can go at the present time in doing the work of a lawyer in analyzing a case. The document summary feature of Microsoft Word illustrates those limits. Using an algorithm that looks at such things as topic sentences and the frequency in which words appear in a document, Word can build a summary. Sometimes it gives surprisingly good results. More often, it doesn’t. For the foreseeable future, Microsoft Word won’t be replacing lawyers — especially new associates in a firm — as the summarizers of depositions. Clearly, case analysis software must get a lot smarter before it will play as important a role in litigation as document management software does. For example, although document management software can search for words and phrases, it still can’t recognize the various permutations that humans use for writing a date, such as September 1, 2001; Sept. 1, 2001; and 9/1/01. Computers may eventually be able to carry at least some of the burden of case analysis and let lawyers focus on trial presentation, but not for now. Washington, D.C., lawyer James H. Johnston is a frequent contributor to Legal Times . He may be contacted at [email protected].

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