The digitization of communications and commerce and an increasingly global economy have spawned rising numbers of cross-border cases and arbitrations that span multiple jurisdictions. This trend highlights the increasing importance of legal collaboration on a global scale. It is being felt across the entire post-discovery litigation workflow, from case analysis, case strategy, deposition prep, and transcript management to actual proceedings in courtrooms and hearing rooms across the world.
What makes this global collaboration process as seamless as possible is the implementation of cloud-based technologies. Cloud-based collaboration tools for case analysis and management, as well as for electronic trials and arbitrations, are already being deployed successfully at a global level to increase efficiency, reduce costs, improve the quality of teamwork, and deliver more value to clients. In this article, we will examine the basic technical components that make cross-border legal collaboration and paperless proceedings possible, and the cost and efficiency benefits that can emerge when legal parties embrace digital work spaces and agree to share infrastructure and costs during proceedings.
Analogies To e-Discovery
The recent evolution of legal collaboration technology and the movement toward a more cooperative approach in using it is comparable to trends in electronic discovery that have unfolded over the past 15 years, particularly in the US.
At the beginning of the age of data-intensive litigation, parties, litigators, and judges struggled in their attempts to deal with massive repositories of information, and were forced to confront a variety of technical and legal issues associated with preserving and collecting relevant data, processing and reviewing it, and preparing it for production and presentation. Fiercely adversarial fights over discovery sometimes overshadowed core legal issues, and overly broad demands for electronic evidence—often disproportionate to the value of the matter at hand—were pursued to force parties with fewer resources at their disposal to capitulate and settle.
It took time, but the eventual response of the courts and the legal profession was to embrace a more cooperative model, in which rules were revised to ensure proportionality in discovery requests, and parties were required to attend “meet and confer” sessions and prove they could cooperate on discovery issues. These issues included not only the scope of discovery and its relation to the potential value of the case, but also the disagreements surrounding the use of technology in the discovery process and acceptable technical standards. In the e-discovery realm, the profession as a whole, ultimately came to recognize that pre-trial cooperation between parties is necessary to manage the discovery process, keep costs down, agree on technical parameters and ensure that document requests remain “reasonable.”
A similar phenomenon is now observable on a global scale with respect to technology that is being used to digitize courtrooms and hearings facilities and make the once-elusive goal of efficient, cost-effective, and virtually paperless proceedings a reality. Legal parties are beginning to embrace the cooperative use of shared, cloud-based legal collaboration technology that reduces costs and enables significant efficiencies during proceedings, and yet at the same time retains the essentially adversarial structure of the legal dispute.
The technological solution enabling this trend is a neutral platform that can be shared by legal parties and that digitizes all evidence, research, and other types of information relevant to the proceedings—including exhibits, documents, audio, video, translations, daily transcriptions of proceedings, and so on—making that information readily available at any time via secure log-in to a virtual, web-accessible workspace.
The other essential requirement of this solution is that the same platform provides each party with its own secure “war room,” a confidential workspace where team members can access the complete body of proceedings-related materials—as well as other materials—for their own exclusive consumption. They can analyze, organize, discuss, and annotate these materials, and they can hyperlink them. They can leverage the resulting work product to assemble, save, and modify detailed legal arguments and timelines, and otherwise perform the intensely collaborative work of preparing and executing a compelling legal strategy.
The platform also eliminates the need for labyrinthine email threads and the distribution of file attachments containing sensitive information, and dramatically reduces the need for phone calls, since team members can communicate more efficiently within the shared workspace.
Global Examples of Legal Collaboration in Action
The UK: The UK is in the midst of an ambitious government-sponsored initiative to digitize its courtrooms and modernize its entire criminal justice system, motivated by the cost savings and efficiencies that proven technology can realize. The judge in the high-value, high-volume 2011 dispute between Roman Abramovich and Boris Berezovsky set the tone by mandating shared use among the parties of the electronic bundle service, saving an estimated 5 million sheets of paper and dramatically speeding up proceedings in a notoriously complex, multi-language legal matter.
Today, lawyers in the UK are using the same platform well before those crucial last few weeks leading up to proceedings—to secure sensitive evidentiary materials, streamline internal communications, facilitate substantive collaboration among dispersed team members during expert review and early stage motions, share ideas and annotations, and ultimately map the resulting work product to the trial bundle. The platform is now routinely used a year or more before proceedings, often in parallel with an e-disclosure platform. Eventually the most pertinent evidence and work product are selected for transition to the bundle in the final weeks preceding trial, where relevant case data is agreed upon by the parties involved, documents are paginated and the bundle is re-purposed for optimal ease of reference during proceedings.
The US: The use of cloud-based legal collaboration software is picking up steam here as well, although the trajectory of that growth has looked somewhat different. In the US, use of the technology has tended to focus on deposition prep and transcript management, and the initial impetus for deploying it has come largely from clients. Typically, these clients have been leveraging advanced technologies to achieve efficiencies in their own businesses for years, and are intimately familiar with the advantages of cloud services in rendering large volumes of diverse data types both more readily accessible and more secure. In one recent example, legal collaboration software was used to manage evidence in the deposition phase of an international matter that culminated in a six-week trial held simultaneously in the US and Canada. The virtual workspace that was created to perform this work accommodated 73 users from multiple firms, more than 20,000 discovery documents, 211 deposition and transcripts, and 119 types of designations—proving that scale and geographical boundaries present no meaningful barrier in the cloud.
Technological innovation in the US legal environment tends to be fragmented across multiple local jurisdictions, and the concept of conducting paperless trials with shared-party infrastructure is only beginning to emerge as a real possibility. There are exceptions, however. An international arbitration that was held in Miami in 2016 integrated state-of-the art evidence presentation technology with digital trial bundle software and a three-language interpretation service to create the first technologically advanced, and essentially paperless, hearing room in the US. The two parties in the arbitration—represented by large multinational law firms with case teams spanning US, UK, and European branches—shared the infrastructure costs to establish a “pop-up” high-tech hearing facility, which allowed all participants, whether onsite or in remote locations across the globe, to participate in real time. The obvious benefits of the “pop-up” shared-technology model used in Miami have since inspired the replication of that model to other US jurisdictions.
A Changing Mindset
Cloud-enabled “collaboration” doesn’t involve new investments in hardware or installation on local machines. Essentially, it is a web-based application for use on Internet-connected devices to streamline and integrate legal workflows across the entire litigation lifecycle. When you remove paper from the multiple processes stretching from discovery or disclosure to hearings or trial, when you consolidate all of those processes and the resulting work product within a single interface, you make it much easier for legal teams to collaborate in an increasingly global environment. You also provide a powerful incentive for opposing parties to adopt a cooperative mindset when it comes to using technology during legal proceedings.
In the context of complex international legal matters, we have already seen that as opposing parties agree to adopt a shared technological “backbone” in the courtroom or hearing room that benefits everyone, technical issues recede into the background and lawyers can focus on the legal issues at hand. This is especially true if legal teams have already been conducting intensive pre-trial preparations within the same platform that provides their own private, secure virtual workspace, because in that case the transition to trial is seamless.
The model established with respect to e-discovery is simple enough, and seems readily adaptable to other forms of legal technology: Compete vigorously on the legal front, but also recognize that it’s in everyone’s best interest to cooperate on the technological front. Cloud-enabled workspaces (private and shared) underlie both sides of the equation, and from that perspective the future of global litigation looks very bright indeed.