Recent article by William MacLeod and Kate Gower re Court Applications while the courthouse is closed published In Slaw, Canada’s Online Legal Magazine.
Recent article by William MacLeod and Kate Gower re Court Applications while the courthouse is closed published In Slaw, Canada’s Online Legal Magazine.
Electronic Trials – Counsel’s Perspective after a Trial with CaseLines A Presentation for the Pacific Legal Technology Conference, November 15, 2019
William G. MacLeod Q.C.*
Our recent experience of an electronic trial using CaseLines litigation software has confirmed the advantages of conducting an electronic trial instead of one using binders of paper documents. The economy and efficiency of electronic trials generate significant savings of time and money. Depending on the case, it is realistic to expect savings of 10-20% of the trial time, and using electronic presentation of evidence saves about 80% of the costs of preparing binders of documents and authorities for use at trial.
As clients bear most of the costs of litigation, they also save the most through a digital trial. But Courts also save time and money: this is a shift that will benefit all involved.
The Reasons for Conducting an Electronic Trial
The reasons why clients would prefer that their counsel use computers to present evidence and argument in litigation extend throughout the litigation process and taken together, they are compelling advantages. They include:
● time saved in each stage of the preparation and conduct of the trial.
● practical elimination of the costs of organizing binders of evidence, authorities, pleadings, etc.
● efficiency of access to the information necessary to argue and for judges to decide the matters in dispute; and
● facilitation of sharing of information among counsel, clients, witnesses and others.
Options for Conducting Electronic Trials
From April to July 2019, we conducted the hearing of a lengthy trial electronically. It was a trial about breach of trust and breach of fiduciary duty and it involved extensive evidence surrounding the development of lands in Saanich B.C. especially over the period between about 1994 to 2000. The trial reasons for judgment have been reported: Hutchison v Moore 2019 BCSC 1479. The matter is now under appeal.
In February 2019, we considered how best to conduct the trial, which involved nearly 40,000 pages of documents. The large number of documents was in the consensus view of all counsel unmanageable except through electronic presentation. The trial was set for April 15, 2019 in Victoria, B.C.
None of the counsel in the case had conducted an electronic trial before. We knew nonetheless that the trial needed to proceed and accordingly we looked at three basic options on how to present the evidence electronically.
Shared Laptop and Paralegal for Presentation of Evidence
In this system, all documents used as trial exhibits would be electronically scanned to a DVD disk or a USB drive which would be marked as exhibits, with the documents organized using a simple document directory structure. The clerk of the court would physically mark those items as exhibits and store them in a cardboard box.
The documents from the CDs and USB sticks would be loaded into a laptop and from the laptop a paralegal jointly acting for all the parties would present the documents through a wired network to a series of monitors. The judge, witness, counsel and public gallery would all have such wired monitors.
The paralegal would take direction as to what document to display by the counsel who were leading evidence or cross-examining as the case might be. The system used in that case would be supplemented by the use of an electronic whiteboard to display maps and other exhibits which witnesses could markup in the course of their evidence. This system reportedly was functional, and successfully facilitated a lengthy aboriginal claims case. West Moberly v. BC, 2017 BCSC 170. See also “West Moberly Victoria’s First Electronic Trial”
Electronic Presentation Software
The second option that we considered involved the use of electronic trial presentation software in conjunction with a network of monitors as in the shared laptop option. The option that I initially came to recommend to the other counsel and the Court was TrialPad. By comparison to other trial presentation software, this software was inexpensive and relatively easy to use. It had sophisticated evidence presentation tools and was in widespread use in the United States where it was developed.
We eventually decided to use a web-hosted trial document repository called CaseLines. This web-based system which was developed in England is widely used in the United Kingdom, Africa and the Middle East. Notably CaseLines is used to host all criminal trials in the United Kingdom. On any given day it is supporting some 10,000 criminal proceedings there.
However, it had not been used in Canada or the United States as yet although there were plans afoot to market it in North America.
This software is well-designed, providing an environment where all counsel and the Court can share access to common documents. Access to the database can be strictly controlled. Thus, counsel for the parties can privately note-up, highlight, and organize documents in the database in a manner that is private to them. They can securely share some or all of the documents in CaseLines with clients and witnesses. The judge has access to his or her own private area of the database where they can undertake similar tasks, copy and paste from exhibits, and facilitate the drafting of a judgment.
The software is browser-based. Thus it runs on Windows and Mac computers, and on both laptops and tablets. No additional software has to be purchased, and the amount paid to CaseLines was only a per-page-uploaded cost of $.30 per page. (This was an introductory rate. The usual rate is $.40 per page). This cost was shared among the parties. In our case, CaseLines offered training and support without costs. This included flying a technical representative from the UK to support the trial during its first few days.
Understandably then, the parties and the Court found CaseLines to be the best option, and we decided to use it six weeks before the trial.
CaseLines’ structure and nomenclature reflects English court practice, which in some respects is different from British Columbia court practice. We developed modifications and workarounds as necessary and the company has since introduced enhancements reflecting our feedback.
At the time of our trial, there was no courtroom equipped for such an electronic document trial in Victoria. Accordingly, it was necessary for the parties to organize the supply of the necessary wiring, monitors and routers for the trial. Successful use of the system required that all counsel and the court have a strong wideband internet connection. At times this was the cause of some frustration as our collective demands on our internet connection sometimes caused instability and connection failures.
The timing of the introduction of CaseLines into our case severely tested the makers of the software, counsel, and the court. It was the first electronic trial for all counsel. The case had been under way for some seven years and the trial had been adjourned a number of times. We first learned about CaseLines on February 22, and we obtained Court approval for its use on March 7 only five weeks before the trial was to begin. The Supreme Court judge who had case managed our proceedings for six years, was elevated to the Court of Appeal that same day. A judge who was new to the case and to these arrangements was not appointed until March 19, less than four weeks before the trial. There was ongoing discussion among counsel as to the terms of an Agreed Statement of Facts which carried into the first week of the trial. The trial involved many complex legal and factual issues spanning decades.
Additionally, there were features of the software which needed to be created to meet the needs of B.C. practice notably a software mechanism to “stamp’ the electronic images of documents as Exhibits as documents were proved in Court. This work was not complete until the start of the trial.
Most civil litigation settles, and everyone can then avoid the costs of a trial. But if a trial is necessary, an electronic process mitigates the “pain” both practically and economically. In our case and in any case of commercial complexity it is common for the evidence to be electronically managed through the course of the action. This was the case for all parties in our litigation.
The parties used Summation1 to create Lists of Documents. Images of the documents were scanned into Summation from the beginning of the litigation. The parties conducted their review and analysis of the documents using Summation. In our case, CaseLines was introduced to us too late to be effectively used for the analysis of evidence. We only used it for management of the presentation of evidence and argument at trial.
Accordingly, we uploaded the current pleadings, the examination for discovery transcripts and the examination for discovery exhibits to CaseLines.
We had a Documents Agreement among the parties, dispensing with formal proof in certain respects about the documents unless otherwise notified. Finally, we uploaded the main body of documents that the parties had requested be put before the court, i.e. the Core Documents. Over the course of the trial we added new documents daily as new issues came up and additional evidence was referred to during cross examination of witnesses.
In preparation for closing oral arguments, legal authorities and written Submissions were uploaded as well.
Identify Documents to Upload
Using several columns in Summation to identify documents requested for trial from four different parties, we were able to make sure only documents agreed upon by all parties were uploaded. We created a section for disputed documents and these were kept separate from the Core Documents. As an Agreed Statement of Facts was still in progress up to the first week of trial, it was challenging to identify and upload all the necessary documents before the trial started. We could see if a document had already been added when various parties sent in their lists of requested documents for the Core Documents section. Using one central database made it easy to track what had been done so far.
Export PDF Images from a Litigation Database Such as Summation Briefcase We used a fairly simple tool within Summation to export images and create PDF documents for each one. It took time for the system to convert larger batches of documents from TIFF to PDF format which is generally required by CaseLines for bulk import. (CaseLines can support other formats, including video but we did not need that in our case.)
Though we used Summation as our pre-trial litigation database, other litigation databases can be used. So long as documents can be organized, saved, and uploaded in PDF format, there should be no difficulty loading documents to CaseLines.
Prepare Various Sections in CaseLines for the Loading of Documents
We created separate sections in CaseLines for the material which we uploaded:
A. Current Pleadings
B. Examination for Discovery Transcripts C. Core Documents
D. Examination for Discovery Exhibits
E. Trial Transcripts
F. Final Trial Transcripts
G. Expert Reports
I. Disputed Documents
J. Submissions of the Parties
K. Case Authorities
L. Additional Authorities
We created this particular structure for the needs of our case, and you can structure your own CaseLines databases to best meet the needs of your case. New sections can be added as you go along. We ended up adding six new sections on top of the initial eight that we began with.
● This structure was designed to meet the needs of just the trial. If we had used CaseLines from the start of the proceeding, it would likely have been convenient to track the material filed on each interlocutory application, all amendments of the pleadings and interlocutory orders.
● In our usage the “Core Documents” were the ones whose formal proof was agreed.
● The separate section for Examination for Discovery Documents resulted in some duplication of documents that were uploaded in the Core Documents section.
● It was convenient to have separate sections created for the “rough” daily transcripts generated by the court reporter each day and the final transcripts produced after corrections had been made. All counsel submissions to the court were thus linked to the final transcripts.
● In another case it might be convenient to create separate sections for the authorities cited by each party or to have sections grouping the authorities by issue.
Uploading PDF files to CaseLines
We initially tried uploading large batches of PDF files in ZIP format to CaseLines. This proved unwieldy as the system wouldn’t process them until the next business day and we needed to monitor the documents processing. We were limited to uploading 100 PDF files in a single batch, and the speed of this process depended on the size of each file and our internet speed. It took our two staff two full days to upload all the initial documents identified at the start of the trial, and we continued to add documents as it progressed. The capacity of CaseLines Canadian servers to process documents has since been increased to facilitate faster uploads and transfers.
On uploading, CaseLines scans the documents with optical character recognition and it creates a searchable index of all the uploaded contents. It assigns a unique CaseLines index number for each page of each document, with a search on the CaseLines index number taking you to that unique page. The CaseLines number would refer to the letter code for the section and then a number for the unique number of the pages of a document in the series of documents uploaded to that section.
We originally estimated that we would upload roughly 15,000 pages. This was unrealistic: by the end of the trial we had uploaded 56,539 pages of documents, authorities, pleadings and transcripts.
Some duplicate documents were uploaded, mainly due to the haste with which we had to proceed. Another issue we had is that where documents had been uploaded in “batches” e.g. a complete business file loaded as one document, sometimes only a few of the pages were in fact discussed by a witness. At the time of our trial, the software did not facilitate the marking of only a few pages as the trial exhibit. There were work-arounds for this, and a more “fine- grained” treatment of the documentary evidence in listing documents would have avoided some of these problems.
CaseLines allows for easy hyperlinking between documents, even allowing for hyperlinks to specific pages of a target document. This was helpful in the course of submissions when the written submissions could be hyperlinked to documentary evidence, transcripts at trial, examination for discovery evidence or authorities.
CaseLines uses the total pages uploaded to calculate its charges to the parties (currently $0.40 per page shared among the parties). This level of charges is forgiving to some level of duplication but more time and attention might reduce your costs to a lower level than we experienced.
The use of CaseLines or a similar means of presenting evidence at trial essentially eliminates the costs of preparing binders of evidence.
The use of CaseLines, or other electronic presentation of evidence at trial can save many thousands of dollars over the preparation of binders of documents. We have prepared a spreadsheet attached to show a summary of typical costs for preparation of binders of documents. The spreadsheet indicates typical costs for trials assuming different quantities of documents from 200 to 1000 trial documents. The costs of preparing the binders are shown for 2 party, 3 party and 4 party trials. For comparison of costs, the spreadsheet does not include the costs of preparing an “office set” of the trial evidence, nor a client set, for any of the parties in paper form as is sometimes done.
This spreadsheet is illustrative only. It only compares costs on cases where up to 1000 documents are used. The spreadsheet assumes that documents average five pages each, i.e. up to 5,000 pages of evidence. (In fact we uploaded about 40,000 pages of documents into CaseLines, so the savings in our case were many times greater.)
With CaseLines, or other electronic presentation of the evidence it can be seen that the costs of preparing documents for a multi-party trial do not scale upwards because the physical costs of preparing multiple sets of paper documents, with tabbed sets of binders are avoided.
In preparation for a paper trial, paralegals and other support staff spend most of their time in the physical production of the document binders. Electronic presentation of the evidence at trial eliminates this preparation time and expense. In the pressing time demands of trials, this enhances their effectiveness in assisting counsel.
Presentation Equipment Costs
Unfortunately, the vast majority of courtrooms in British Columbia are not equipped with monitors, wiring, or WiFi sufficient to support an electronic trial. For the time being, parties wanting to present evidence electronically must be prepared to bring, install, and support their own equipment for this purpose.
Our costs for purchasing and installing equipment in the courtrooms came to about $13,000. This included two routers, nine monitors, a witness/presentation laptop, a witness iPad, cabling, power adaptors and extensions. The hardware cost was about $10,000. That equipment can be re-used or sold off. The balance was for the costs of set up and tear-down. In our case this needed to be done twice to set up once in Victoria for the hearing of evidence and another time for argument in Vancouver.
We might have managed some savings if we had forgone the provision of monitors for the counsel and gallery; we could have run the CaseLines software simply on our laptops. However, there were significant advantages in having the monitors for counsel so they could follow the presentation of documents on the monitors while tracking the real time reporting on their laptops or doing other work such as making notes or dealing with email.
The need for parties to provide their own electronic equipment could be met in our case by the clients, but for unsophisticated clients with smaller cases, meeting this requirement would be an economic problem.
Providing real “access to justice” must imply some facilitation by the Court of the most economic means of bringing evidence before the Court. We cannot see a good reason for delay by the B.C. government in equipping its courtrooms for the electronic presentation of evidence. If the government counts only its own savings by having shorter trials, the costs of installation and support would soon be recovered.
If the savings and improved access to the courts for litigants are counted, the case for very early installation of such equipment becomes compelling.
Setting up the Courtroom
The trial was held in Victoria which at the time did not have a courtroom with the computers, monitors, wiring, or WiFi routers to conduct an electronic trial. Accordingly, it was necessary for the parties to supply and set up this equipment. The parties agreed to share this expense on the footing that the prevailing party or parties at trial could recover their share of this expense from the losing side. The Court Services were only in a position to supply the internet connection and computer support for the judge. We were fortunate to have the assistance of Kate Gower, a Victoria lawyer who had experience, (particularly from the West Moberly case) expert knowledge, personal connections, and hands-on experience in the Victoria Courthouse in setting up the equipment for an electronic trial there.
By cooperation of the Court we were able to get access to the Courtroom a day or two before the trial to set up and test the equipment. On the first day set for the trial we had a representative of CaseLines from the UK and Ms. Gower helping the parties to get going with the system. That representative also met privately with the judge to provide initial training.
Timelines and Recommendations
Ideally, CaseLines might be used from the outset of a civil dispute. To get the benefit of an electronic process at trial, the timeline between a decision to use CaseLines and trial can be short even in a complex matter as it was for us, but having more time is nonetheless helpful, especially when doing an electronic trial the first time.
Organizing a case using CaseLines depends on co-operation and planning among Counsel, and having a trained technical litigation support person with organizational skills to implement the planning. We had one trained person responsible for uploading documents on behalf of all parties. This helped us stay organized.
We found that Counsel erred on the side of including more documents than were strictly necessary. This was likely due in part to the relative ease to add new documents and the low cost to all parties for the uploading and use of documents. With more time, no doubt we might have reduced the documents that we uploaded.
Depending upon the volume of documents to be used in the Trial, it can take a few days to assemble, organize and upload them all. It would take weeks to organize and produce physical binders of those documents. If we were to have used paper copies of everything, we would have used roughly 6 sets of 75 large tabbed binders. There would be no space in the courtroom to accommodate such a volume of documents and keeping them organized would be very difficult.
With the trial in Victoria, all of the counsel were from out of town. We would have had to arrange for paralegal support in the courtroom with a paper trial, which was an expense we did not need to incur using CaseLines.
CaseLines’ technical support was very responsive leading up to and during our trial. A technical representative from CaseLines in London came to help counsel and the judge for the first few days of trial. The time difference between Victoria and London became an issue once the representative flew home, but we were able to work around this issue. Most of the technical support to upload and organize documents could be done remotely. We only needed to call for technical support to the courtroom to deal with issues of unreliable WIFI connections. We understand that arrangements are underway to improve local technical support for CaseLines.
Problem areas and challenges, things to avoid
● Bulk listing of documents. Digging through 500 pages in a single document for 2 or 3 relevant pages. Upload only the pages you need from larger documents
● Uploading new documents without marking them as “inserted” as this would change the CaseLines page number for documents coming after them within the section. CaseLines numbers pages according to the sort for that particular section. If new documents are added and are in the middle of the section, any pages after them will have their CaseLines page number changed. This can cause issues with any references made to those pages.
● As the CaseLines documents grew in volume, it took longer to paginate them in CaseLines when we were inserting into the larger sections-sometimes up to 2 hours. We had to do uploads at 8 am each day if those documents were to be used in Trial that day. We are advised that Increases in the server capacity and some software changes have been made to improve the speed of processing.
The Hearing of Evidence
For the most part, the examination and cross-examination of witnesses proceeded without any notable problems as compared to a paper based process. Witnesses had no difficulty testifying about documents as the relevant page could be brought up on the monitor before them.
To aid the witness, an iPad was provided at the witness box so that the witness could scan through documents, particularly longer documents. In the case of some of the longer documents that were referred to frequently in the trial or which were the subject of lengthy questioning, it was sometimes more convenient to refer to a paper copy.
Counsel for one or two of the elderly witnesses who were in their 80s were led through their evidence in chief by use of witness binders of paper documents while the rest of the parties in court and the judge followed along with the computer presentation.
Counsel who were leading witnesses and cross-examining would sometimes invoke the aid of another counsel on their side of the case to call up documents as necessary rather than doing so themselves. This was sometimes helpful, although as the case proceeded counsel acquired familiarity and skill in presenting documents to the witnesses.
Presentation to the Court
The use of CaseLines presented no new problems in leading the court to an appreciation of relevant documents.
The use of the software guarantees that the judge can literally be taken to the appropriate page of any document quickly and certainly. This reduces greatly one cause of concern- that the judge may not be on the same page as you are. (This concern was also assuaged by Real- time reporting which created a transcript of the proceedings minute by minute.) With these tools at hand, we were able to move more confidently and at a faster pace through the evidence. We were not limited to the speed of movement of the judge’s pen, nor the judge’s ability to type notes of the evidence. As always, counsel should not attempt to proceed faster than the judge’s ability to assimilate the evidence and argument. However we noted no apparent difficulty on anyone’s part due to the increased pace at which the case proceeded.
There were a number of moments of frustration, when for one reason or another, (typically the breakdown of Wi-Fi coverage in the Courtroom) there had to be a brief halt in the conduct of the trial to fix a computer problem. We took steps early on in the trial and at various later points to reinforce the point with everyone that such issues are to be expected, especially when new systems are used for the first time. All counsel and the Court exercised commendable forbearance on these occasions which allowed the resumption of the trial with minimal disruption.
The judge made little comment on the electronic presentation of the evidence and argument during the course of trial, and did not mention it at all in his reasons for judgment. However, the software and Real-time reporting did shorten the trial and he was provided with a full electronic working environment to note up, highlight documents and oral evidence. After 29 days of evidence and nine days of submissions, including extensive written submissions and reference to many authorities, he was able to give his written reasons in less than eight weeks.
Savings of Time at Trial
Counsel that have conducted other electronic trials have reported savings in the range of 10- 25% in the length of trials compared to a paper-based trial. Those estimates don’t surprise me. In paper trials, estimates of counsel for the length of a given trial can vary by this much without any real error by counsel in the estimates that they give.
Nonetheless, counsel and judges conducting electronic trials have uniformly declared that the time savings are real. The main factors governing the degree of time reduction appear to be the volume of documentary evidence to be considered, and the number of parties in the trial. The relative skill of counsel in conducting electronic presentation was not so much a factor. After a short time of adjustment all the counsel in our case maintained a similar pace in their presentation of evidence.
So too the use or not of Real-time Reporting (discussed below) is sometimes a factor that is not sufficiently taken into account in its effect on the length of a trial.
The main mechanism for saving time with an electronic trial is the much greater speed at which you can move from page to page within a document or from document to document. With CaseLines each change of place in the documentation can be almost instantaneous. When counsel are presenting documents they can take each party, the witness and the judge instantly to the appropriate place. With binders, the speed of each transition is limited by the speed of the slowest person in the courtroom. This person may be the least organized or adept with the wrangling of binders, or may simply be the last person on that particular occasion to find the right binder, tab and page.
Those who have conducted trials using many binders of documents will recall the many occasions when one person or another in the courtroom does not quite hear correctly which binder, tab and page reference is being called out by the presenting counsel. Or they will have had occasions when someone’s binder has come apart, or was mislabelled or misplaced. Despite considerable care in assembling binders, documents are sometimes filed under the wrong tab, or an error has been made in the photocopying. All of these mishaps and many other similar ones which are accepted as inconsequential in the ordinary course of paper trial are avoidable with the electronic presentation of evidence. Cumulatively a lot of time and money can be saved.
If the saving of time with each transition is say 30 seconds, the total time accumulates. If this happens every five minutes this is 12 times per hour, and 48 times per court day. The loss of time on this analysis is 24 minutes per court day. In the available 4 hours of court time per day (240 minutes per day) this comes to a 10% saving of time per day.
The time saved in this way increases with the total number of documents and binders, and the number of times that a transition from one document or page to another is made. The time lost is increased by the number of persons in the courtroom who must locate the appropriate page or document which in our case was seven-counsel for four parties, and then the judge, the witness and the court reporter.
Aside from CaseLines we used Real-time reporting as well, and that also shortened the trial. With a verbatim account of the evidence at hand counsel could proceed more quickly. It is difficult in our particular circumstances to separate the effect of the Real time reporting from that of CaseLines in speeding up the trial.
In a future trial it may be worth exploring whether the need for an ongoing transcript can be met by a more economical “rough transcript” delivered by a court reporter at the end of the court day or overnight. Such a transcript would not be “certified” i.e. finally verified by the reporter as to its accuracy. But for the purpose of speeding up the trial a certified transcript is not needed most of the time. As we understand the standard practice of the Court is to require certified transcripts, the use of rough transcripts may need a suitable direction from the Court.
If there was an overall saving of say 20% in trial time and half the time savings came from CaseLines, the savings for each factor would be about 10% or about four trial days for each factor on a trial of our length. In our case there were typically seven counsel in the courtroom. Multiplying by the hourly rates of counsel at an average of say $400 per hour gives a cost of about $3000 per hour including taxes. Assuming counsel charged for 6 hours per day, four days savings in counsel time is about $72,000 from using CaseLines, and a further $72,000 from using Real-time reporting.
Our actual costs for Realtime court reporting for the trial were about $2700 per day for the 29 days of evidence, so on this rough analysis the time that was saved was about the same as the cost of the Realtime reporting charges. However, there were additional offsetting benefits of having the full electronic transcripts for the purposes of counsel preparation during the course of the trial, the preparation of submissions, and no doubt the preparation of reasons for judgment. These benefits are greater in a long trial with complex evidence. On a net basis, without doubt, Realtime saved clients time and money.
Software like CaseLines does not diminish the need for counsel to exercise all the traditional skills of advocacy. Such tools do not win your case for you. Even with the best of tools, cases will still be won or lost mainly on their merits.
Nothing saves litigation costs for clients as effectively as achieving fair and timely settlements. Agreement on non-contentious matters and a focus on truly determinative issues is going to save more money than electronic presentation of evidence. Doing unnecessary things with great efficiency is not a solution to clients’ problems.
What our recent experience has confirmed though is that tools such as CaseLines help present and organize large quantities of documentation more rapidly, accurately, reliably, and economically than in a paper trial. It is an easy prediction that all counsel will soon be transitioning to the everyday use of such tools.
I am indebted to our firm’s Technical Assistant, Sean Doubt for his indispensable role in supporting the CaseLines Trial and for his assistance in preparing this Presentation. A number of people have read this paper in draft, and I have profited from their comments. Thanks to them all. Such errors that remain are wholly mine.
William G. MacLeod Q.C.*
MacLeod & Company 1900-777 Hornby Street, Vancouver, B.C. V6Z 1S4 email@example.com