February 12, 2019
There is no shortage of articles about the increase in the pace of technological change. The legal sector has not been left behind, with practitioners coming to grips with developments such as predictive coding, the use of artificial intelligence, concept clustering, and machine learning. All of these have their place in helping lawyers and their clients deal with larger and larger data volumes, to find what they really need more quickly and efficiently. The days of armies of paralegals clicking through documents from A-Z (or worse, turning page after page) are, or should be, over.
The courts, too, have embraced at least some of the advantages of technology. Electronic filing has been mandatory for all professional users in the Rolls Building courts since April 2017. But computer systems haven’t been problem free, with reports in January 2019 of IT issues causing delays in trials in courts across England.
Electronic bundles are frequently used in the courts, and there is no shortage of commercial providers of software to support annotation, hyperlinks, and searching. This functionality is of great assistance to the solicitors and the barristers, but what about the impact of not having paper copies on judges and witnesses?
The judgment of Mr. Justice Birrs in Invista Textiles (UK) Ltd & Anor v Botes & Ors  EWHC 58 (Ch) provides some insight: “I was not convinced the [electronic document] presentation system was helpful or worth the trouble involved.”
Helpfully, the judgment went into the specifics as to why this was the case with respect to the impact on witnesses:
“For one thing the system often had an appreciable delay, not always obvious to the cross-examiner, which meant the witness and the cross-examiner were at cross-purposes. More significant was the way witnesses were given a single screen on which a single page being referred to was displayed in front of them. The display would frequently flash to a different page, often without warning, and often before the witness had a chance to digest it properly or understand its context. I am sure the witnesses did not always read the text as carefully as they would have done if they had some personal autonomy which allowed them some control of the text in front of them. That is the kind of autonomy a paper bundle gives a witness but it need not be on paper if the witness has some control over what is on their own screen. When it was clear this was happening I intervened to allow the witness to have a chance to read the material properly. Otherwise there would have been real unfairness.”
This accords with my own experience of being cross-examined using electronic bundles. I like to see the context of the page I have been taken to, by looking back at the preceding pages. With paper, I can do this without interrupting the flow of the examination. Paper bundles also allow me to turn to other documents that are relevant to the question I am being asked, such that I can refer the court to that specific document —and its reference — in framing my answer and providing support for it.
Generally, with electronic bundles this cannot be done (yet), which may be fine for an experienced expert witness who is confident in asking to be taken back a page or two. However, for a nervous factual witness who is giving evidence for perhaps the only time in their life, this can be daunting, and my experience is that judges don’t always intervene in the way Mr. Justice Birrs refers.
No doubt we will get the technology to a stage where the witness will be able to move around their copy of the electronic bundle independently of what is on counsel or the judge’s screen, but we are not there yet. Mr. Justice Birrs’ comments end with a warning: “Unless such systems improve I will in future require witnesses to be given a paper bundle.”
In order to embrace all of the benefits that technological improvements give barristers, solicitors and their clients, we need to ensure that the technologies work for all stakeholders, including judges and witnesses.