As far as Richard Owens is concerned, the Jonathan murder trial demonstrates the need for today’s lawyers to be technology savvy. In the case, three boys from Toronto were accused in the brutal stabbing death of a 12-year-old boy known only as Jonathan. A mistrial was called because
of postings a star witness had made on a Web site which called her testimony into question. A cached version of the page was found by a reporter doing a quick Google search.
“”The existence of that kind of evidence is only going to be apparent to counsels who are technologically skilled. You have to know where to look,”” says Owens, executive director at the Centre for Innovation Law and Policy at the University of Toronto Faculty of Law.
Lawyers also need to be able to use IT to better prepare for trials, he says.
“”Lawyers need to understand technology right now or they are going to lose cases. It’s that simple,”” Owens says.
Technology can help lawyers more efficiently manage documents, he says.
This is important given the vast volume of documents a lawyer might have to shift through for a case, says Shayne Strukoff, a partner at Gowling Lafleur Henderson LLP in Vancouver.
No more lugging
Strukoff uses Gowlings’ eLS e-litigation services to prepare for trials. In large commercial cases, you can have 50 to 60 binders of documents, he says. It’s no longer necessary to lug those around.
Today, lawyers can scan documents into a computer using optical character recognition (OCR) technology, and can look through the material anytime provided they have their laptops on hand.
Lawyers can also perform keyword searches and more easily find the material they are looking for.
Strukoff went over the ways in which IT is changing litigation. The first step is the pleadings.
The main difference now is lawyers can scan the documents electronically. They can also make electronic notes or highlights on the e-documents, whereas they cannot write on the originals.
“”It used to be a horrendous task to organize the documents,”” he says. Now lawyers can easily sort files using whatever criteria they see fit.
The next step is discovery — the compulsory disclosure of facts. In any given case, there might be 30 to 40 transcripts and their summaries.
“”It was tough to remember who said what on what day,”” Strukoff says.
Again, it’s now easier to organize, index and search the documents.
“”Five or six years ago, you really had to know transcripts inside out. You still have to know them to a certain degree, but you can do word searches now,”” he says. “”Searching for evidence is actually easier.””
Making chamber motions and arguments during the course of the trial is also easier now, Strukoff says. In the old days, it meant trudging to the library, looking through large volumes for cases and dictating memos or arguments. The process would take a few days, he says.
With scanned files, lawyers can do their research through their computers.
Also, it’s becoming more common for transcripts in trials to be available in real time, he says. It makes cross-examining much easier, as you can more readily point to what was said two hours ago, Strukoff says.
“”What the technology is doing now for litigation is it’s putting you more in command of the facts than perhaps you were five years ago. You’re a lot more organized and you’re a lot more efficient.””
There are also paperless trials, in which the judge, witness and lawyers are all presented evidence on their own individual screens, he says.
However, Strukoff admits that not everyone is comfortable with the technology.
“”There are a lot of senior people who really have a reluctance to change. And they’ve been very successful the old-fashioned way, so they don’t see the need to change,”” he says.
But all players will have to embrace this new reality — especially where the large trials are concerned, Owen says. Here there can be millions of documents.
Alan Gahtan, a principal of the Gahtan Law Office in Toronto, agrees. The move from paper to electronic documentation has been underway in Canada for some time, he says.
“”It’s something that law firms have been doing for at least the last 10 years where it’s appropriate. There are certain cases where you have a lot of documents and it becomes cost-effective to handle the whole discovery process electronically,”” he says.
— with files from Neil Sutton
