"There has to be a better way."
Such utterances are not unfamiliar to an attorney involved in a multi-party litigation effort. A call to a colleague is answered by voice mail. The fax is busy. The copier is jammed. FedEx has lost a package. And you are late for a meeting which has been canceled.
Complex multi-party litigation places enormous burdens on the resources of parties and counsel.
Traditionally, and within express parameters set by the courts, lawyers whose clients are related by a common interest in the defense of a complex case will organize pursuant to the terms of a joint defense agreement. A carefully executed agreement allows multiple parties to communicate to advance the effort of the group while preserving the attorney-client privilege.
But such an effort often may fall short of the intended goal. Until recently, lawyers had to rely on an uncoordinated, hybrid combination of meetings, messengers, telephone calls, voice mail, faxes, postal services, and e-mail to transmit and receive information. The amount of time spent making direct contact, the enormous paper flow, the cost of each service combined with the lack of prompt feedback often undermined the effectiveness of the common defense effort.
The Internet is a natural communication band
The inherent connectivity of the Internet and its now-mainstream usage may help alleviate many of the problems described above. The Internet can easily be configured to function as an extension of the lawyers' internal computer network, with all of the members of the common defense connected.
The benefits are immediately clear. The burden of notifying the group of a simple meeting change does not require a phone call which must reach every party at every firm. The need to circulate a draft of a large brief to everyone in the group does not require countless collated photocopies and burying your fax machine. A relevant opinion does not need to be messengered or mailed overnight to each and every member of the group in order to be available for research.
A web site dedicated to serving a joint litigation effort can serve as a vital connection among all parties involved in a case, and access to the secure site can be restricted to authorized users only. The web site is always online, at all times, and allows the user full access to all posted information whenever the individual is free to log on. And the site can be configured so that it does not matter if an office uses a PC or a Mac, Lotus Notes or Novell NetWare, Windows 3.1 or Windows 95 . . . web based technology functions on all platforms.
The Extranet experience
Using Internet technology to connect a group of select users (and excluding everyone else) can be described as an "Extranet," one of the newest buzzwords in the online arena. The idea is to share information, resources and tools with colleagues as if they were on the same internal computer network. Extranets vary greatly in sophistication, from a simple web site with restricted access to high-end system integration, where documents can be sent to all the members of the group by simply dragging and dropping icons on the computer desktop.
The web site concept allows the user to perform a series of tasks all launched from one place. This can include real-time messaging and on-line conferencing, posting news updates, schedule coordination, document storage, research and writing collaboration. With each firm simply managing its portion of the case online, every colleague in the group is kept current and accessible. This allows for better use of time and resources and assures the maximum benefits of sharing information. And it can be done in a secure environment, under electronic lock and key.
A Virtual Tour
So how does this all work? A lawyer in the case has been out of touch with the group for several days, attending to other matters, and needs to catch up. She opens her web browser on the computer and taps in the address of the joint defense web site, a non-specific, unregistered domain name. The connection is made through a recognized hook-up to the secure server. After a series of security checks, she is into the main menu.
The home page provides a welcome, instructions for use of the site and easy to follow directional buttons to move to the substantive pages.
First stop is the schedule page - several meetings have been rescheduled, depositions moved and a court date added. The changes can be integrated into her appointment book.
On to the news page, an important development in a parallel proceeding is posted which effects several points in a brief she is writing. She follows a link to the research area, and retrieves an article from a law journal describing the ruling in greater detail.
She checks the message board, where several colleagues have been strategizing on how to create a common document index. She has a database which can loaded on the site for the group to configure to suit the case and she quickly posts her impute on the matter.
Another message notifies her that the docket in a related case has been upload to the "related case" library. She goes to the library and downloads the file to her hard drive to review later.
One last stop on the e-mail directory to send messages directly to two colleagues about an expert witness interview on Friday.
Up-to-date, reconnected, informed and relevant documents in hand, she logs off after only minutes. This is the real power of the Extranet.
Setting up an Extranet
Setting up an efficient and effective Extranet requires Internet development expertise. An experienced web development company will be able to create a simple-to-use interface that combines all of the functions outlined earlier, and will be able to restrict access to authorized members through layered security measures. The web developer can configure the technology components to match the specific demands of the case and the users: the site is custom tailored.
The economy to be achieved by a common Internet defense effort in a large case is considerable. The amount of time spent gathering facts, conducting research, and communicating among colleagues for each party can be expensive but not necessarily efficient. The reduction in usage of other communication means such as mail, fax, FedEx and telephone can result in significant savings.
All of these solutions sound great, but they mean nothing if the technology does not offer security as well. Confidential information must remain confidential - for the integrity of the site and to ensure the enforcement of the joint defense privilege. Although no security measure can be labeled foolproof, web-based solutions have developed to dramatically decrease the likelihood of breach of security. Internet Service Providers with experience in security issues can implement layers of protection by using techniques such as IP filtering, IP tunneling, Secure Socket Layers (SSL) client/server key encryption and server-resident username and password restrictions. In many cases, good ISP's are able to configure their networks so that they can follow access trails down to individual computers in offices. Privately disseminating web-based information through Extranets is now secure and will only become safer as the technology improves.
The federal district court in the Southern District of California has recently enacted a rule which provides for electronic filing. And several sites have been set up to post civil class action pleadings. As the technology advances and the access to the internet becomes widespread, it is only a matter of time before the use of paper becomes limited and electronic filing become the norm.
Assuming the development of Internet capabilities in the legal community and growing interest in the courts in reducing paper and establishing electronic filing means, the logical conclusion is dedicated case web sites with electronic dockets. The most secure level would be within a firm's Intranet with all the material unique to an individual client. The next level of the site would be connected to the Extranet among common interest parties. At the next level, the Internet could be used to serve other parties and file with the court with full public access.
The legal work for the individual party will move from the firm's LAN or Intranet, to the joint defense Extranet, to opposing counsel's network, and to the court, all online.
All of the technology is in place. It is only developing the practice to use it in this context which needs to follow.
New trends in technology also stand poised to both simplify and enhance the online litigation experience. Web-based interfaces with databases are improving rapidly in speed and reliability, and are making the amount of information deliverable through a web site virtually limitless - all while keeping the process of finding what you might be looking for very simple.
User-driven components (which usually update information in online databases) are making it easy for Extranet participants add, remove and update information on their own. Tasks such as uploading new documents for others to view or making schedule changes will not require the intervention of a web administrator - nor will there be any time lag between a lawyer making a change and the time it takes for that change to appear.
Computers used to be viewed as devices that isolate their users. But the Internet allows lawyers to be connected as never before, and can greatly enhance and enliven the collaborative process. The time and cost savings will allow the lawyer to realize increased efficiency and effectiveness in managing the defense of a client. Joint defense will always be a complex and demanding process - but the Internet can go a long way in managing information better. The robust, reliable and flexible platform on which it is built will ensure that using the Internet for litigation will soon become standard procedure.
About the authors:
Allison Manning and Stephan Roussan are partners in Intercounsel LLC, a New York-based company that creates Internet solutions for law firms. Ms. Manning has 16 years experience as a litigator. Mr. Roussan is a web developer and Internet consultant.