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Cooperating Counsel
The Role of Automation in Organizing the Preparation of
Geographically Spread Litigation
By: William H. Skeels, IV, Esq.

Much, perhaps even most, modern law practice is no longer strictly local. To an extent which would have shocked all but a few big city business litigators and other highly specialized attorneys 25 or 30 years ago, practice for many attorneys is regionalized, if not nationalized. Nowhere is this more true than in the litigation practice.

Litigation team members are usually both separated geographically from each other, and have the need to perform case development on a regional or national basis. Not surprisingly, those in control of litigation on both defendant and plaintiff side are among the first to use technology to deal with the challenges which result.

One driving factor in the greater centralization of work, and resulting greater need for control mechanisms, is the rise in responsibility of in-house counsel at major organizations. In-house counsel are increasingly given responsibility, and authority, to control work and work product from their constituent law firms, including and especially those who defend litigation brought against the organization. Consistent with that charter, in-house counsel are also held more closely responsible for quality and result of the work performed by outside counsel, further providing incentive to perform this level of management. Technique and technology are used to achieve not only the more efficient and economical use of outside legal work which is required, but support a more controlled and coherent strategic management of legal work.

Goals and means include:

- Reuse of documentary work product. This may typically include a document bank accessible through electronic means, including disk-based resources, bulletin boards, or, increasingly, some variety of Internet or Intranet-based resource.

- Creation, maintenance and access to a factual base for use in the litigation. This might include items such as standard sets of answers to commonly promulgated interrogatories, insuring not only efficiency but accuracy and consistency between cases concerning similar fact patterns.

- Measurement of effectiveness of strategies, and an institutional memory as to such effectiveness. These computer-based 'metrics', including statistical analysis of case types and results, supplement and complement the common-sense, experience-based means of determining what factors breed success, and insure that those which are judged to do so are consistently utilized.

- More effective allocation of resources. One of in-house defense counsel's most important role is the recognition of particular cases, or allegations within cases, that have the most potential for resulting in extensive damages. Early, accurate and thorough reporting strategies, generally enabled by technologies such as e-mail and litigation management databases (increasingly based on Internet technology), result in early recognition of such potential trouble spots. This, in turn, permits the application of scarce and expensive resources to these cases, with a salutary effect on both the results in that case and side effects on other cases.

- The use of electronic mail to support basic case communication, as well as to support the reporting and analysis functions listed.

- The distribution of commonly used forms.

- Entry, reporting and submittal of time and expenses in a form which is easily utilized and maintained.

The need for coordination and control among counsel is not limited to the defendant's bar; especially in more complex cases, plaintiff's counsel increasingly takes advantage of various technologies to achieve goals of communication and shared research. There is, as might be expected, an escalating competitive effect wherein each side increasingly must take advantage of available technology in order not to be overwhelmed by the opponents, as well as to take advantage of the basic efficiencies offered.

One driving force behind the use of technology by the plaintiff bar is the increase in cooperation among attorneys who, though geographically spread, are allied by their involvement in similar litigation. While plaintiff attorneys perform much of the same management functions as the defense bar (including such standards as using e-mail to manage functions), there are some differences in emphasis. Cooperating plaintiff attorneys might typically perform technology-assisted functions such as:

- Sharing the cost and benefit of discovery through exchange of discovery documents. This exchange is greatly eased by the ability of counsel to utilize mass exchange media such as CD's, to e-mail smaller sets of documents and, more and more often, to make such items available on Internet World Wide Web sites available to those with appropriate security clearances.

- Exchange of information concerning common interrogatories, briefs and other work product. Again, the exchange of documents is made vastly easier by means such as e-mail and web sites.

- Utilization and of various expertise, including technical data, the knowledge, and even the testimony of experts can be greatly facilitated by the ability to exchange both information concerning, and from, such sources.

Both defense and plaintiff counsel benefit from the use of computerized schedules, which can also be integrated into other network programs. The use of such shared calendars on a LAN is well known; Novell's Groupwise is among the players making a bid to bring these technologies to and through the Internet.

From both sides of the fence, the stakes are high, and the ability to obtain real advantage through technology-based or technology-enabled functions is high. Defense firms which understand this dynamic will succeed in capturing a greater percentage of litigation business from corporations seeking to utilize these techniques, including obtaining the lucrative and strategically important role as regional or national counsel. Plaintiff's firms which understand the broader use of technology in managing litigation will be able to obtain discovery, expert help and other assistance which will support successful preparation and trial of the increasingly complex litigation which is the heart of the high-end trial practice. In either case, recognition of practical, useful tools of management and communication is critical to a greater and greater segment of the law practice.

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Bill Skeels is a partner in Strout & Skeels, Inc., a Raleigh-based software development and Internet consulting firm that has specialized in legal applications since 1984. The firm's legal resources web site can be reached at http://www.lawsight.com.