TECHREPORT

TECHREPORT 2018: Litigation and TAR

The annual ABA TECHREPORT combines data from the annual Legal Technology Survey Report with expert analysis, observations, and predictions from leaders in the legal technology field. For the first time, we are bringing TECHREPORT to Law Technology Today for you. This is our last report for 2018; check back early 2019 for more!

The key takeaways from this year’s ABA Legal Technology Survey Report regarding the use of technology in the courtroom, training, and e-discovery are as follows:

  • Use of billable hour declined about 10% from 2017.
  • The number of lawyers not using technology in the courtroom continues to decline sharply. Use of trial presentation technology by large firm lawyers is pretty standard but not by smaller firms.
  • Courts are offering more courtroom technology training, which lawyers are taking advantage of. More courts have courtroom technologies to use.
  • Mandatory and voluntary electronic court filings in state and local courts continue to increase and have become the norm. E-discovery requests continue to rise and are mainstream. But predictive coding and technology assisted review have not yet caught on or become mainstream. Simple solutions and keyword searching remain the tools of choice.
  • The troubling technology gap between large firms and small firms in overall resources and technology use continues to exist. In the courtroom, this means more reliance on “do it yourself” by small firms and the use of specialized staff or consultants by large firms. In the hardware and software world, this means less investment by small firms and greater access to technology tools by their larger brethren. In the e-discovery world, this is equating to increased use of software and consultants by large firms while small firms struggle along the best they can. This gap continues to have repercussions for the quality of service to under-served legal needs and the continued health of smaller firms that play such a key role in society.

Demographics

Eighty-three percent of the respondents were from firms of less than 50 lawyers (compared to 75% last year). This skews the results slightly: firms with 50+ lawyers typically have more IT and technology resources. In addition, the survey size of some of the larger firms (500+) was small, thus the responses from this limited number may not necessarily reflect what is happening in these larger firms. In addition, the average age of the respondents was close to 54 (similar to last year); on average, the respondents had been admitted to the bar for 26 years. 37% percent of the respondents fall between the ages of 60 or older (down from 48% last year, perhaps reflecting a demographic shift as boomers age out).

These ages and years spent in practice may still skew the results: while many in this age group may be early adopters and fully conversant and comfortable with technology, they also came of age as lawyers when technology was not as ubiquitous as it is today.

It’s also important to note that the 2018 Survey was directed to lawyers in private practice only—not in-house lawyers who, as clients, may ultimately drive more changes across the board.

On the plus side, most of the responses were from those whose primary practice area was litigation. Some 72% of the respondents said they actually practice in the courtroom. This constitutes a slight change over the past several years.

Sixty-five percent of the respondents were male versus 72% last year; this gender gap decreases with age.

One other demographic note: while the billable hour is still the primary billing strategy among our respondents—60%—this is down almost 10% from last year perhaps indicating the start of a sea change.

Courtroom Technology

The percentage of lawyers not using technology in the courtroom continues to drop: 20.6% in 2018 compared to 43% in 2017, 45% in 2016, 51% in 2015, and 54% in 2014. Whether this reflects the adoption by more states of Comment 8 to Model Rule 1.1 (requiring that lawyers kept abreast of developments in technology), the increased availability of resources and cost decreases, or some combination of all these and other factors is unknown.

Laptop Use in the Courtroom

Somewhat surprisingly, laptop use in the courtroom has actually decreased since last year, with only 50% reporting using a laptop for various tasks, compared to 55% in 2016, 49% in 2015, 46% in 2014, and 48% in 2013. Up until this year, this number had been increasing. Perhaps this can be explained by the fact laptops continue to morph into hybrids (like the Microsoft Surface Pro or Lenovo Yoga), and the old terminology and dichotomy between the traditional laptop and tablet is becoming less and less relevant.

The top uses for laptops in the courtroom include:

  • 32% to access email
  • 32% to do legal research
  • 29% to access key evidence and documents
  • 25% to access court dockets and documents
  • 21% to deliver presentations (a percentage that interestingly has remained fairly constant despite improvements in technology)

The gap between the percentage of large firm respondents who use laptops and other technology to deliver presentations in the courtroom (56%, up a staggering 19% over last year) and solo and small firm respondents (15% of solos and 21% of those in firms of 2-9) continues to exist. This discrepancy in the use of the persuasive techniques afforded by technology is troubling.

Tablets and Smartphones

Use of tablets in the courtroom declined slightly from 38% last year to 32% this year.

The top uses of the tablet in the courtroom the same as last year: email (24%), calendaring (18%), and online research (15%). 9% report using their tablet to access key evidence and documents.

Interestingly, the number of large firm respondents using tablets in the courtroom significantly dropped from 28% last year to 22% this year which again may reflect a greater reliance on laptops or hybrids. The remaining categories of firms using tablets remained steady.

Smartphone use in the courtroom was roughly the same as last year (84% up from  80%), compared to 76% in 2015 and 77% in 2014. As expected, the greatest use of smartphones in the courtroom is to check for email and calendaring. The least-cited uses were for editing documents, making presentations, and accessing software. The use of smartphones for online research increased slightly, probably since larger screens are becoming more popular.

Training

Again, the number of respondents with training in courtroom technologies, while low, continues to appear to improve (34% this year versus 30% last year and 28% the year before last). As suspected, the large firms (100+ attorneys) lead the way in training.

Importantly, the training that exists today seems mainly done by the courts themselves, with 58% of lawyers getting training from this source.

Why no training? The answers are interesting. The top reason still being given is that training is not available (27%, although this declined from 42% last year, a significant change). Only 8.6% of the respondents said courtrooms didn’t have the technology to train on: this is a huge reduction from the 28% reported last year. 30% of the lawyers responding still said training was not necessary and, interestingly, very few of the large firm lawyers reported taking advantage of their own internal training materials.

Software

The most popular software being used is still litigation support related (available in 21% of the responding firms), followed by deposition transcription/management software (19%) and trial presentation software (13%). These numbers are all lower than last year’s.

The litigation support software available at the respondents’ law firms remained constant. The highest number (38%) report that their firms have litigation support software (down slightly from 42% last year). Deposition management software (32%) and trial presentation software (26%) remained close to that reported last year. Larger firms have much greater access to software.
When asked whether their firm had purchased software in the last six months, 71% said no (up from 67% last year) and 23% said they didn’t know. This suggests a lack of interest in these technologies.

Why the low reported availability? It could be a general belt-tightening or the lack of need of these tools given the decline in trials. Or it could be just a lack of demand by the lawyers in the firms. Perhaps some of the software previously purchased is now available in cloud-based applications. It’s disturbing since litigation software has many uses besides purely trial practice.

Relatedly, when asked what features of litigation software they liked the most 67% said they simply didn’t use any! This was up from 61 % last year and 55% the year before, which is surprising.

Of those lawyers who used trial presentation software, PowerPoint remained by far the most frequent software mentioned although other software is gaining ground. 80% of respondents reported using PowerPoint, 12% Summation (down from 21% last year), and only 12% Trial Pad.

Thirty-one percent of the firms reported having deposition management software available with most of those at large firms reported having this tool but only 13% of solos. Etrans remained the most popular (36%).

The respondents’ clear choice for the hosting of the software they used continued to be internal (18%); only 10% would prefer it to be in the cloud. But a very large percentage either had no preference, didn’t use it or just didn’t know.

Who Is Operating the Technology?

Who makes the courtroom technology work depends almost entirely on the size of the firm. While overall, 43% of the respondents operate their own technology in the courtroom (up from 35% last year), 58% of the solos do so and very few of the large firm lawyers so. Again, this could suggest an advantage to the big firms. On the other hand, since they are forced to operate the technology themselves, solos may be more nimble and flexible with technology in the courtroom. And trial technology may be getting and more intuitive to use.

Importantly, 41% of the respondents report having no technology support staff. As expected, there is a huge gap between small and solo shops (77-46% respectively) and large firms (almost all have support).

Electronic Filing and Documents

The frequency of electronic filings with court systems continues to increase and has clearly become the norm. Overall, 83% (versus 79% last year) of the respondents say they now file documents electronically with courts.

Respondents report that the number of courts that allow electronic filings and the number of courts that require it have slightly increased over last year.

The percentage of those who never receive requests for e-discovery fell slightly from 38% in 2015 to 36% in 2017 s year to 32% this year. The number of attorneys who never make e-discovery requests decreased from 42% in 2017 to 35% this year.

The number of firms involved in cases where the processing of e-discovery is necessary declined from 51% to 44%.

Review and Processing E-Discovery?

Thirty-eight percent of the respondents still use no sort of e-discovery review and case analysis solution, down the 44% of respondents who said they did not use it last year.

The primary tool used to review e-discovery materials remains keyword searching (80%, up significantly from last year). Few respondents use context analysis or predictive coding.

Perhaps this reflects more recognition of the existence of e-discovery, but a lack of understanding regarding the various tools.

Only 12% report using predictive coding to process or review e-discovery materials, a number consistent with last year. The lowest percentage of predictive coding use was with solos and the highest use was with bigger firms. The size of the case was the main reason lawyers did no use predictive coding but there were also significant concerns about cost and the validity of the process. Interestingly, 33% of respondents at firms of 500+ lawyers had concerns about this technology. Firms between 50-499 lawyers also had concerns, while only 5% of the solos did (down from 17% last year). Only 10% of the respondents claimed to be unfamiliar with the tool which is consistent with last year.Another interesting finding: 38% of the respondents never bother to perform any sort of early case assessment, up slightly from last year. 38% also claim not to use any e-discovery solution.

Very few of the respondents used lawyers outside the U.S. for e-discovery review (76% did not) or outside lawyers in the U.S. (83% did not). All of these numbers suggest that costs may still be higher for e-discovery review than they need to be.

About Stephen Embry

Stephen Embry
Stephen Embry is an attorney focusing his practice on mass tort and class action litigation and is the publisher of TechLaw Crossroads, a blog devoted to law, innovation, and technology.

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