Why lawyers are slow to pick up new technology

Sir Isaac Newton, in his second law of motion, tells us why it is so hard to get the legal profession to adopt new technology. Newton’s second law is F=ma. This means that the larger and more massive an object, the smaller the acceleration you will get (for a given force). That is because the amount of acceleration you get is inversely proportional to the mass of that object.

For anyone longing to see this as an equation (for example, my father), it is expressed as: a=F/m

This is called “inertia”. Lawyers have a lot of mass. I do not mean that they are physically massive people, rather, I mean that – as a body of people – they are formidable. There are a lot of them. They are educated and opinionated. In Canada, they have a title role in the adversarial system of justice. They have developed rules that direct court process and that guide their behavior in and out of court. Let us agree, for the purposes of this paper, that they are massive.

Electronic TrialBecause the legal profession is massive (perhaps more massive than was expected), we have to apply a tremendous amount of force to get even a little bit of acceleration in a given direction – for example, in the direction of adopting new technology. Furthermore, only “net” force matters. There are many forces acting on the legal profession and lawyers. Cost and time concerns impact lawyers in different ways: while some time and cost benefits exert a force towards adopting new technologies, other concerns about the time and cost involved in buying and learning how to use new technology can push lawyers away. Sometimes, the simple fear of technology is another a force that makes some lawyers turn and run directly away from using a new technology in the practice of law. To get acceleration and change, we must ensure that there is a large net force, pushing lawyers in the direction of using new technology.

Let us turn to a real-life example. West Moberly et al. v Her Majesty the Queen et al., 2017 BCSC 1700 (West Moberly) was a 60-day trial, successfully run on a simple electronic trial platform. The parties, and the court itself, accelerated from a standstill to running the trial on this platform. How did
that happen?

First, the judge in West Moberly supported technology in the courtroom. One should not underestimate the force of a judge telling counsel that a “wall of binders” will not be welcome in court. Having a judge who is pro-technology is a significant force in the right direction.

Second, one party was prepared to exert a constant force over a period of months towards running the trial in an electronic environment. Hardware was priced, purchased, set up and tested. Courtrooms were measured, assessed in schematic drawings and determined to be suitably sized to hold all counsel and the hardware itself. All parties selected documents for the common book, found the common book contained 3376 documents filling over 30,000 pages and decided to generate the common book electronically (to avoid the “wall of binders”). Protocols for entering exhibits were set
and the case began. A constant, large force caused acceleration.

Third, forces going in the wrong direction were minimized. The easiest way to do this was to keep the electronic trial platform as simple as possible. A monitor sat on each table (i.e. the tables for counsel, the judge, the court reporters and the witness) and all monitors were linked to a single laptop.
Anything viewed on that laptop (the “Presentation Laptop”) also appeared on each of the monitors. The electronic Common Book (organized folders of 3376 PDF documents) was loaded onto the Presentation Laptop. When a presenting party wished to draw the court’s attention to a document, the
party called the document up on the Presentation Laptop and the document was instantly visible on the monitors in front of all the other parties, the judge, the court reporters and the witness.

In fact, the only piece of “extra” technology was a large “Smartboard” in the courtroom. Like the monitors, it was connected to the Presentation Laptop. When a document was brought up on the Presentation Laptop, it also appeared on the Smartboard. However, once the document was on the
Smartboard screen, the Smartboard functioned like a giant “tablet” (one lawyer described it a “colouring book”). The user had the ability to manipulate the image by zooming in and out, and could write text directly onto the image. At the same time, any zooming in or writing appeared on the monitors directly before all counsel, the judge, and the court reporters.

While the constituent parts were simple and generic, the resulting electronic trial platform was powerful. It saved the parties paper and space. West Moberly would have required eleven copies of the common book of documents. Each paper copy of the common book would have been 30,000
pages of paper, filling – and I am being conservative here – 100 binders with paper. Eleven copies of the paper common book would have put 1,100 binders into the courtroom: literally, a wall of binders.

The electronic trial platform also gave the parties an effective way to manipulate and discuss the many maps in the case. West Moberly was a dispute over the boundary of a treaty signed in 1899. Hundreds of historic, hand-drawn, oversized maps were reviewed. The platform made it possible for everyone to view the same map at the same time, instantly. Parties made effective use of this during closing submissions – the instant display made it possible to “show” more exhibits to the court than would have been possible with a 100 binder common book. Further, the Smartboard made it easy for parties to zoom in on a particular part of a map for further discussion. It was even possible, using just your finger, to highlight an area of the map under discussion, and to show it on the screens in front of
everyone else in the room. All the parties used the Smartboard in their opening statements and when examining the witnesses. Once you have used a Smartboard to discuss and review a map, it is hard to imagine not using this particular piece of technology.

And this is the good news: p=mv. Momentum (“p”) is equal to mass multiplied by velocity. This means that a very big truck, even if it is moving forward at a very slow speed, is very hard to stop. Since we have already established that lawyers have a lot of mass, if we can get them to move with even a very little bit of speed, then they will have a lot of momentum. Small bumps in their way will be driven over. Forces trying to pull them back will be brushed aside. They will continue to go forward. One and a half years after closing arguments, the parties to West Moberly brought the e-trial platform back into the courtroom to argue costs. So the good news is that, when we succeed and get the legal profession to adopt just a little bit of technology, then the future is coming.

i  Kate Gower was the lawyer responsible for creating the e-trial platform in West Moberly et al. v Her Majesty the Queen et al., 2017 BCSC 1700 (West Moberly) – email her at kate@gowermodernlaw.com. Kate prepared this paper for the TLABC’s Women Lawyers Retreat, October 19 – 21, 2018 in Whistler, BC.