TechReport 2022: Litigation & TAR

The ABA TechReport combines data from the annual ABA Legal Technology Survey Report with expert analysis, observations, and predictions from leaders in the legal technology field. Every Wednesday, we’ll be posting a new report from one of our experts, so stay tuned!

“Slowly but surely” may be an apt phrase to describe the results from the 2022 ABA Legal Technology Survey Report covering Litigation Technology & E-Discovery. More technology is making its way into the courtroom, and it appears that document review tools are becoming more of the norm in law firms for litigation matters but it has been, and still is, a slow-moving process.

As Stephen Embry reported last year, law firms seem to still be in a belt-tightening phase when it comes to investing in litigation support software on the other end of  the pandemic. This is even more evident when you see the brand names reported by firms that are still working with legacy products instead of more functional and modern tools available in today’s cloud-capable environments.

Many Years and Much Litigation

The largest group of respondents to the Litigation Technology & E-Discovery Survey (32%) practice at firms with 2-9 attorneys while 10% of respondents are solo attorneys and 25% are at firms with 10-49 attorneys. The rest of the respondents (33%) are at firms with more than 50 attorneys (13% have more than 500 attorneys). The results of the survey thus skew slightly more towards mid-size and smaller law firms.

When asked to describe the type of attorney respondents mostly closely identified with, 46% stated they were “primarily litigation.” When respondents were asked to identify their primary practice area based on billing, the largest selection (27.5%) was “Litigation” with the next largest selection (17.2%) as “Commercial Litigation” – the remainder of the practice areas included Corporate, Estates & Wills, Contracts, Real Estate, Employment, Constructions, etc.

On average, respondents have been admitted to the bar for 27 years with 48% being admitted for 30 years or more. The average age of all respondents is 55 with 82% over the age of 40. Sixty-eight percent of respondents are male and 30% are female (1% preferred not to say). Forty-five percent of the respondents are Partners at their law firms (47% male / 39% female) while 24% of females and 13% of males are Associates.

Software for Litigation & E-Discovery

There were four broad categories of questions in the survey asking respondents if they used software in litigation (courtroom technology is addressed below): 1) litigation support software (47.3%), 2) deposition/transcript management software (34.4%), 3) evidence preparation, management, or presentation software (32.9%), and 4) trial presentation software (32.3%). In general, the availability of litigation support software increased as the firm size increased, starting with solo respondents (21%), firms with 2-9 attorneys (31%), firms with 10-49 attorneys (54%) and firms with 100 or more attorneys (75%).

Even with those numbers, it appears law firms are not making investments in litigation support software as the number of firms that have purchased such software in the past 18 months was in the single digits, with only 4% responding that they had purchased litigation support software in the past 6 months. This could be a result of cutbacks or hesitation since the pandemic, or simply that firms have made investments in other areas such as remote connections and collaboration platforms.

For trial presentation software the overwhelming choice is Microsoft PowerPoint that can be used on Windows, Mac, and iOS (81.4%), followed by TrialDirector which is Windows only (20.4%), TrialPad which is iPad only (13.3%), and TimeMap (10%).

The category for “evidence preparation, management or presentation software,” was a new question in the Survey this year, but respondents stated they used Thomson Reuters Case Center (51.7%), Adobe (10.3%) and PDF Expert & TrialDirector (6.9%). Firms that needed to managed transcripts from depositions or hearings used “E-trans” (32.1%), LiveNote (21%), and TextMap (19.8%).

[LiveNote is owned by West, A Thomson Reuters Business, which is a sponsor of the Litigation Technology & E-Discovery Survey. TextMap is owned by LexisNexis which is a sponsor of the Litigation Technology & E-Discovery Survey.]

When the survey asked about “litigation support software” those questions appeared to be synonymous with e-discovery software since the majority of those purchases was reported for “document review/viewing” (56.8%), Bates stamping (54.1%), Full-text search (48.6%), OCR (46%), redaction (37.8%), generating document productions (32.4%), and annotation (24.3%).

The top brand names for litigation support/e-discovery software were Relativity (43.1%), CaseMap (28.4%), Concordance (12.7%), and Summation Pro (8% which has consistently decreased in use from 26% in 2017). While Relativity is no surprise here (although the survey did not distinguish from RelativityOne), it appears that CaseMap from LexisNexis has made some inroads for e-discovery since the company added some “light document review” tools to the software a few years ago.

It is perplexing to continue to see both Concordance and Summation Pro as those tools are legacy software products that are not designed for the modern cloud architectures. While both Concordance and Summation were the marquee names of document review in the mid-90’s and early 2000’s, Concordance was acquired by CloudNine from Lexis in 2018, and Summation Pro is no longer a current offering since Exterro acquired AccessData in late 2020.

When asked what features of litigation support/e-discovery software were most useful to litigation teams, the responses were full-text search (35.2%), document review (28.4%), Bates stamping (27.6%), redaction (23.6%), and OCR (19.6%). Interestingly, the survey asked respondents if they would rather have the litigation support/e-discovery software installed behind a firewall (30.2%), or hosted externally (20.1%) and while there are a small number of scenarios and clients that demand local installations with limited access requirements, the most acceptable and secure option for most firms today is a cloud-based platform.

For those lawyers that do use litigation support/e-discovery software, 31.5% stated they preferred an “all-in-one solution” for e-discovery review, which was described as “including sophisticated tools to assist in your processing, production, analytics, and review.” The next option was a “simple review solution” described as “a tool focused on the basics of review” and only 16.8% of respondents selected that. Only 10.1% of respondents stated that they needed a “sophisticated review solution” that included “advanced review functionality” with analytics. It seems vendors would be better served to focus on improving their basic review tools rather boasting about more advanced functions and analytics that may only be used by a tiny percentage of lawyers at the largest firms.

How often is an e-discovery tool necessary? Respondents were asked if they ever need to process or review electronically stored information (ESI) and 54.4% answered they do, which follows fairly closely with the 46.4% of respondents that identified themselves as primarily litigation focused. Almost 20% answered “No” to the question and a confusingly 26% answered they “don’t know.” One can only assume that these respondents are not involved in litigation because all discovery today involves electronically stored information.

The survey asked how often lawyers received e-discovery requests on behalf of their clients and 70.3% reported they did ranging from two times a year, to one or more times a day. The mean came to 41 times per year that respondents were receiving e-discovery requests from opposing parties. Respondents sent e-discovery requests a mean of 32 times per year with 20% stating 1-3 times a month, and another 20% stating 3-11 times a year.

Still undefeated, the “search term” is the primary technique used to process and review electronically stored information as 80.6% of respondents confirmed it is their preferred method for reviewing data and even performing early case assessment (51.9% respondents stated they used keyword searches for ECA). A close second was “natural language search” at 66.7% which many platforms provide as their default search method. Next, “concept searching” and “AI-assisted search” both came in at 28% and “predictive coding” held the bottom at 19.2%. In those scant cases where predictive coding was used, the handful of respondents stated it was for “document prioritization” (89.3%) and it was only used because they had a “short timeframe” – in other words, it was not their first choice. Seventy-three percent of respondents stated they were completely unfamiliar with predictive coding.

Are You Playing Angry Birds In The Courtroom?

When asked “Do you practice in a courtroom?” 66% of respondents answered “Yes” with an average of 23 courtroom appearances per year (the largest segment, 39.7% make appearances 3-11 times a month). The report wanted to know who was primarily responsible for operating courtroom technology during those appearances and the largest segment (30.5%) stated the attorneys themselves were the primary operators but 10% of the time it was “another attorney from their firm,” a paralegal (9%), or a “litigation support consultant” (8%).

The survey focused questions on three tools used in the courtroom: 1) laptops (68% compared to 57% in 2020), 2) smartphones (81% compared to 83% in 2020), and 3) tablets (34% which dropped quite a bit among solos from 2020, but increased in firms with 10 or more attorneys).

Laptops are primarily being used for accessing “key evidence and documents” (44.4%) which is understandable since attorneys work at their computers every day to access and organize information. After that, laptops are being used to access email (42.9%), legal research (40%), and only 38% are using laptops for delivering presentations.

Attorneys that have their smartphones in the courtroom appear to be using them for the same tasks anywhere else: checking email (72.7%), checking their calendar (49.8%), texting/messaging/phone calls or what the survey termed “real-time communications” (49.3%), legal research (26.3%), and then a smattering of tasks for idle time (“web browsing to kill time” 24.9%, reading the news 22.9%, and social media 19%).

If attorneys bring a tablet into the courtroom they’re mostly using them as large smartphones to check email (23.7%), their calendar (16.5%), legal research (15.5%), and for conducting “real-time communications” (12.4%). But tablets are also being used like laptops to access “key evidence and documents” 13.4% of the time and for delivering presentations 12.4% of the time. It’s interesting to see tablets (presumably mostly iPads) covering tasks on both the smartphone and laptop sides of the technology equation.

Thirty-two percent of respondents replied that they have access to trial presentation software (for any device) at their firm, 45.6% answering they have none, and 22% didn’t know if they had any trial presentation software.

E-Filing, Training, and Case Analysis

There were a few additional interesting tidbits from the Survey covering e-filing, training on courtroom technology, and what features attorneys sought in case analysis software.

Electronic filing in state and local courts is continuing to make slow progress as 84% of respondents reported that they now submit documents electronically to their respective institutions, compared with 83% in 2020 and 2018, and 79% in 2017. On average, respondents filed documents electronically 180 times per year with their state or local courts, compared with 155 in 2020, 138 in 2018, and 136 in 2017. Five percent of respondents indicated that e-filing is voluntary in their state courts, 50% reported that e-filing is mandatory, and 31% reported that e-filing varies by court, county, or district.

Respondents who reported that they practiced in a courtroom were asked if they had training in courtroom technologies and overall, 39% reported that they did compared with 43% in 2020, 34% in 2018, and 31% in 2017. Even if formal training was provided or available, it appears that the vast majority of attorneys preferred to “practice using technology before using it live in court” as that was the answer from 74% of respondents. The remaining training options included “training materials provided by the court” (55%), attending a court-sponsored training course (45%), training materials from a vendor or consultant (37%), attending a third-party CLE (30%), and only 19% received training from in-house staff at their firms.

While 38% of respondents reported that they do not use a case analysis solution (presumably tools such as CaseMap or CaseFleet), the litigation teams that do make use of such tools reported that they prize “ease of use” above all else (61%). The next significant factors were price (46%), collaboration (44%), unique features (29%), cloud-based (24%), administrative capabilities (23%) and implementation process (16%).

Perhaps one would have expected to see a little more technology adoption or purchases post-pandemic, but progress seems to grind slowly in this uncertain world. There are certainly highlights in this year’s Survey, and glimmers of hope that more lawyers and firms are embracing technology but it has been incremental at best. It’s slow progress, but we’re moving in the right direction.

About the Author

Brett Burney (burney@burneyconsultants.com) is an E-Discovery Consultant. Brett Burney founded Burney Consultants to provide independent and expert consulting services to corporate executives and legal professionals. Brett is an esteemed author and speaker on legal technology topics. He has been a featured speaker at numerous legal technology conferences and served as Chair of the 2015 ABA TECHSHOW. Brett speaks regularly for local and state bar associations nationwide, and is routinely quoted in industry interviews for TechnoLawyer, Legaltech News, ABA Journal, and more.

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