June 18, 2020
Disruptive forces are shifting the types of disputes in the market and methods of conducting litigation. Notably, the use of remote working technology and new ways of working necessitated by the COVID-19 pandemic have ushered in virtual hearings far more quickly than anyone anticipated a year ago. Additionally, litigators must adjust to the rapid monetization of data and the rise of big tech companies by increasingly utilizing rich data sources to resolve disputes. Lastly, the very nature of disputes themselves are changing as algorithmic price fixing and data breach actions have become more prevalent. Now, more than ever, it is essential for legal professionals to stay ahead of emerging technology trends that will impact the future of litigation.
Virtual Hearings and Trials are Here to Stay
On 19 March 2020, in the UK, the court ruled that the trial of National Bank of Kazakhstan & Another v The Bank of New York Mellon & Ors should be allowed to continue online, despite the defendants’ argument that there may be insurmountable logistical and technical difficulties running a virtual trial. Mr. Justice Teare said: “The courts exist to resolve disputes and, as I noted this morning, the guidance given by the Lord Chief Justice is very clear. The default position now, in all jurisdictions, must be that hearings should be conducted with one, more than one, or all participants attending remotely.”
The case proceeded virtually via video conferencing and live streaming, which demonstrates the feasibility of conducting trials online. This is one example of how the civil courts in England & Wales — and, reportedly, around the globe — have been remarkably quick to adapt to prevailing circumstances and are committed to ensuring justice prevails even in difficult and unpredictable times.
Similarly, in the Supreme Court, in Mastercard Incorporated and others (Appellants) v Walter Hugh Merricks CBE (Respondent), the presentation of submissions by counsel via video presented little difficulty. The submission of electronic documents during hearings appears to be working well using trial presentation systems that barristers are familiar with using. Giving evidence via video link is also certainly not new. That said, challenges can arise in an online hearing. From an expert witness point of view, giving evidence remotely used to make an expert feel somewhat removed from proceedings, given that the expert could only see a general view of the court, the judge or counsel, and little else.
The advent of more sophisticated video conferencing systems that concentrate more directly on the faces of individuals is a significant step forward. Cross-examining counsel can now see the reaction of witnesses and experts and can direct questioning appropriately in response to these reactions. The witness or expert, however, can see only the inquisitor and cannot see how the court or tribunal is reacting to their evidence. The expert can neither witness the affirmative nod or otherwise of the judge or individual members of a tribunal, nor see the flurry of notes that typically move in a steady stream from solicitor to counsel in response to replies. The ease and cost savings offered by virtual hearings may be offset by the absence of visual cues that can help experts express their views more advantageously.
The number of hearings managed online is expected to increase. It is likely that virtual court rooms may be here to stay thanks to the cost efficiencies and streamlined process they offer. Protocols will, however, need to be developed to deploy technology in a way that ensures that the courtroom becomes as virtual as possible, and that all participants in the proceedings are on an equal footing.
Predicting the Outcomes of Cases and Improving Access to Justice
Law and technology are becoming increasingly intertwined as evidence has become primarily electronic. One of the features of legal technology is its ability to level the playing field and even out contests in litigation, as both sides regardless of size and available resources can use the same tools.
For example, an online legal service designed by a teenager launched in 2016 to offer free legal advice to people contesting parking fines and successfully enabled users in London and New York to overturn 160,000 fines in its first year. The service is now available to support consumers with other types of simple legal claims. This kind of disruptive technology is likely to continue affecting the way in which smaller claims are handled.
By using systems driven by artificial intelligence (AI) and supervised learning, legal teams can begin using existing case data and digitized case law to check on the hypothetical case outcomes on commercial cases. Systems capable of applying facts to case law and predicting case outcomes exist and are being tested by some law firms. So-called ‘neural networks’ that underpin some of these systems have now, according to data scientists, been trained to accurately predict outcomes on cases.
In the future, AI could be used by the judiciary to assess facts and provide judgement on high volume, low value cases such as supplier disputes. A key consideration is whether AI can be taught to base decisions on social context as well as case law and fact, which is the case with human judgement. Despite the power of technology, subjective concepts such as mercy and discretion are perhaps impossible to automate, and algorithms can still be subject to bias. For instance, in criminal trials those accused are historically more likely to be found guilty, so models based on past decisions must be continuously updated in line with legal reform, and not be based solely on precedent. While algorithms and technology will continue to play an important role in litigation, for the foreseeable future there will always be a need for human judgement.
Increasing Use of Artificial Intelligence and Data Analytics
Data scientists point out that there is a long way to go before every lawyer understands the real power and potential of AI. The increasing use of the technology and the advent of legal innovation offices within law firms is an indicator that the potential of AI to revolutionize legal services is starting to be realized.
AI is being used extensively in cases involving large volumes of data. Early case assessment technologies underpinned by data analytics can explore the key issues in data populations without human intervention or the use of keywords. Lawyers are, for example, able to see millions of documents on a screen and the software automatically categorizes the documents into topic groups which can be explored to find key case issues. Alternatively, the technology can be used to build case models that aggregate the data needed for a case.
Machine learning technologies are also being used routinely by lawyers to streamline the review of documents in cases, whether for case building purposes or disclosure. Typically, lawyers will read a very small percentage of the document population online and a software algorithm will be deployed to learn from the lawyers, and then review and categorize the rest of the document population automatically. This type of machine learning or predictive coding technology was approved by the courts in England and Wales in Pyrrho Investments v MWB Property.  Today, technology is used in many cases in the UK and the U.S., mainly to prioritize documents to analyze, rather than to make decisions about whether to disclose or discover documents or not. Much of the less complicated and consuming work lawyers do, such as reviewing vast volumes of documents for discovery, can be automated to reduce the burdensome cost of litigation. Lawyers can then focus their attention on the more complex and strategically challenging aspects of dispute resolution. This allocation of time is certainly what the courts have in mind under the new disclosure pilot in the UK, which is designed to reduce the cost of disclosure and litigation.
Predictive coding is increasingly being used in situations that in the past would have been viewed as too complex, such as document reviews that involve an analysis of multiple issues. As the technology becomes more powerful, and lawyers become more adept at using it, this trend is certain to continue.
In the future, legal teams working with data scientists will be able to make use of algorithms and regression models to show which arguments are likely to be the most persuasive in a dispute. On the other side of the bench, AI can help judges or adjudicators use technology to reach their decisions.
Collaboration is Key in a Hyper-Connected World
Collaboration between professionals will continue to be a key feature of successful dispute resolution to ensure expertise across the range of non-legal disciplines that often come into play. In a tech-driven world there is an even greater need for lawyers to work closely not only with technical experts but also with data scientists, cyber-experts, forensic consultants, and cyber-discovery specialists.
Lawyers are very accustomed to partnering with experts able to shoulder some of the workload, such as barristers for drafting and courtcraft, and expert witnesses to help prepare technical evidence. In the future, they will increasingly use data scientists to look for data patterns that can help build arguments. Many large organizations and law firms are already embedding data scientists into their legal teams, and this trend looks set to continue.
As technology advances, and AI is increasingly used in legal workstreams litigators of the future will need a more diverse set of skills and will need to be more adaptable and collaborative than ever before.
The Data Universe Is Expanding
Electronic disclosure has traditionally focused on emails, voice recordings, and mobile phone logs. More recently, disclosure has extended to messaging platforms. Complex financial databases, enterprise-wide information systems and biometric card entry systems now need to be considered too when disclosure obligations are considered. Technology continues to allow vast amounts of data to be generated and stored by companies, which becomes subject to review in legal proceedings. For example, the growth in online virtual meetings during COVID-19 lockdown using video-conferencing platforms will add to the data universe that needs to be considered in disclosure, as will the use of online collaborative tools by remote teams.
As a direct consequence of the expansion of data types generated in the day to day business and their increasing complexity, eDisclosure has become more challenging for lawyers. In many cases it has become essential to work with a strategic technical expert to look through and integrate multiple data formats, whether that is drone footage, social media posts, photographs, or instant messaging.
In the future, the cost of extracting and reviewing data for disclosure may be addressed by modern cloud-based software capable of providing in-application searches. High-end versions of Windows 365 have search and analytics functionality built in, for example. It is possible that data will therefore remain in a company’s own IT platform where it will be searched directly to identify documents for disclosure, without being removed for analysis. These capabilities will need to be litigation sensitive in order to ensure that the data is handled in a way that preserves its evidential integrity.
The COVID-19 pandemic has provided lawyers, the judiciary, and experts with an opportunity to explore the benefits of working in new technology-enabled ways. The shift towards virtual trials, video meetings, and collaborative online working will undoubtedly gain more traction in the coming months given the reduction in unnecessary travel and resultant cost savings.
The future of litigation as a workable mechanism for dispute resolution depends on innovation and adaptability. The cost of litigation is high and because of the cost recovery rules in the UK, there are many individuals, SMEs, and smaller PLCs who simply cannot afford to litigate. This raises important questions about how to achieve access to justice in the future. The volumes of rich data generated in business, and especially by the tech companies, are growing exponentially and becoming increasingly diverse, which adds to the cost.
The significant advances in AI and the ways in which it is successfully being embedded in the legal process to help with data mining and decision making, give every reason to believe that technology is one of the keys to affordable litigation outcomes in the future.
Halide Bey, Data Scientist; Jon Fowler, Managing Director, Ankura; Mark Humphries, Senior Partner, Humphries Kerstetter; Neil Mirchandani, Partner, Hogan Lovells; and Nicholas Saunders, Barrister and QC, Brick Court contributed to this article.
 Claim No FL-2018-000007 – In the High Court of Justice – Business and Property Courts of England and Wales – Financial List (QBD)
 Mastercard Incorporated and others (Appellants) v Walter Hugh Merricks CBE (Respondent)
  EWHC 256 (Ch).