Plibersek, Ray --- "Managing Complex Litigation - 'Some Other Way'" [1993] JlLawInfoSci 25; (1993) 4(2) Journal of Law, Information and Science 396

• Managing Complex Litigation - "Some Other Way"
• Complex Cases - Problems Defined
• Complex Cases - Potential Solutions
• The System
• Benefits
• Unresolved Problems
• Conclusion

Managing Complex Litigation - "Some Other Way"

by RAY PLIBERSEK

The preparation and presentation of complex commercial or criminal matters are problematic. The detrimental effect of such problems was recently demonstrated in R v Cohen and others^[1] (the "Blue Arrow" case) where before passing sentence McKinnon J said:

"What is beyond all doubt is that all involved in this case have had to endure what no one in our courts should be called upon to cope with...no jury should be asked to cope with what this jury have had to endure. No defendant or his family should have to suffer through month after month after month all that these defendants have had to suffer. There must be some other way."^[2]

Examples of problems lawyers have to contend with in complex litigation are:

- accurate and comprehensive control of large numbers of documents.

- rapid access to those documents during preparation and at hearings.

- presentation of complex, factual or legal arguments in a readily comprehensible way; and

- excessive delay and costs.

In dealing with these problems and responding to the chorus of criticism about increasing delay and escalating costs, litigation lawyers are seeking innovative solutions. A computer system recently developed by the Commonwealth Director of Public Prosecutions and LMCS has the potential to address many of these problems.^[3] The system has just completed a successful pilot program where it was used in a month long complex fraud committal hearing. The system essentially stores and displays images of; statements, exhibits, transcript and diagrams for display in court. Before explaining the operation of the system the types of problems it is designed to overcome need to be examined.

Complex Cases - Problems Defined

The complexity and volume of evidence makes the successful conduct of large cases difficult. A recent example is the Blue Arrow case^[4] which involved charges of conspiracy to defraud arising out of a company take over. The jury trial lasted for over one year (184 hearing days plus 50 preliminary hearing days) and resulted in a verdict of guilty. Due to the complexity and volume of evidence the trial judge substantially amended the indictment after counsels' closing submissions. However the judge did not limit the evidence, approximately 75 per cent of which then became irrelevant. As a result the English Court of Appeal Criminal Division quashed the convictions.

The Court of Appeal described the trial as a "costly disaster" and an "ordeal". The court attributed the problems to the length and complexity of the indictment^[5] and the "multiplicity and size of the evidential issues...which proved to be incapable of accommodation within the context of a jury trial."^[6]

The Court of Appeal made numerous suggestions for improving the conduct of complex fraud matters^[7] including the use of pre-trial hearings and procedures designed to:

(a) identify the issues;

(b) assist the jury's comprehension of such issues;

(c) expedite the proceedings before the jury; and

(d) assist the judge's management of the trial.^[8]

Numerous studies have identified the causes of this complexity, failure and delay as including^[9]:

- incomplete evidence and difficulty of proof due to the complexity of commercial transactions involved;

- difficulty in reducing evidence of complex transactions into a form comprehensible to a jury;

- difficulties in separating and relating relevant evidence to the relevant charges and accused;

- limited use of charts and visual aids to assist comprehension; and

- inadequate or ineffective document management systems.

Complex Cases - Potential Solutions

The causes of the problems in complex litigation seem to be two-fold. First, poor management of large volumes of complex evidence. Second, the failure to simplify evidence and make it readily comprehensible. Unlike the Blue Arrow case, there are recent examples of complex cases being successfully conducted. Direct comparisons between cases are unreliable due to the lack of empirical evidence. However, the distinguishing features of the successful cases appear to be the use of good document management and computerised litigation support in court. These innovations have resulted in rapid and less complex hearings.

An example of the successful use of document management with computer support was the Equitcorp fraud trial in New Zealand^[10]. The trial judge, Tompkins J, concluded that the use of computers in court was responsible for substantial time savings.^[11] The Equitcorp trial lasted for 6 months, 31/2 months less than the original estimate. The computer system in the Equitcorp trial used 12 monitors in court. The system contained over 43,000 pages of imaged exhibits and used full text retrieval of transcript with a facility to index and annotate the transcript.

Another example is the recent committal hearing in Sydney of a complex fraud case which involved approximately: 2,700 pages of exhibits, 100 witness statements, 300 pages of transcript and 11 schematic diagrams representing money flows. Prior to the commencement of the hearing, all the evidence was scanned and images in electronic form were stored in the computer system. Once in court any: exhibit, statement, diagram or transcript reference could be accessed within one to two seconds. All such documents were linked to each other so that the system could display any exhibit, diagram or transcript reference to any other relevant document. For example, if a flow chart was being viewed any exhibit referred to in that chart could be viewed within one second.

Another key component of the system used in the Sydney case was a comprehensive document management system. Some features of the system were as follows. Every document was identified by a unique alpha-numeric number usually reflecting the origin of the document. A detailed list (or Exhibit Register) was kept which listed the: document number, date of document, brief description of the document, date tendered, against which defendant tendered and through which witness the document was tendered. This Exhibit Register was updated daily and able to be printed out in court. The Exhibit Register was stored on the computer system and linked to the witness statements, exhibits and transcript. This enabled the court and parties to have the ability to accurately recall and control the thousands of pages of exhibits. Because of the interactive relationship between the: Exhibit Register, exhibits, witness statements and transcript, the computer system was able to search for exhibits and relationships between documents in many different ways. For example, transcript or exhibit descriptions could be searched for common key words. Another example is a search could be made of the transcript for when a document was admitted, which witnesses referred to that document or against which defendant the document was admitted. Such document management enabled the accurate and rapid identification of which evidence was relevant and to which defendant or charge that evidence related.

The System

The system consists of six 20 inch monitors driven by a central processing unit (CPU) with a one gigabyte capacity (approximately 30,000 A4 pages). The 20 inch monitors can display almost a full size A4 document. The system is operated by a "slave" control method with one operator controlling the system and every screen viewing the same image at the same time. A feature of the system was that it was easily portable, being installed in court in less than one hour on the first day of the hearing

The system uses five readily available commercial software applications. The innovation in the system is the seamless way in which those applications are integrated. That is, the five separate applications appear to work as one without the need to move from one application to another. This integration enables extremely rapid access to all the features in the system either individually or different applications linked together.

The software operates in a Microsoft Windows environment. It uses File Maker Pro to manage imaged documents. Tool Book is used for the graphics and flow charts which are interactive or directly linked to the exhibits. Thus, when looking at a flow chart, any document referred to in the chart can be selected and displayed within one second. The system also uses ISYS for full text retrieval searches of transcript for key words and exhibit references with a direct link from transcript to images of those exhibits. WImage was used to view and manipulate the images. Transcript was supplied on disc by the Court Reporting Service.

Benefits

With the completion of the first pilot of the system the following benefits have emerged. The tender of documents into evidence has been greatly accelerated. As each document was tendered the magistrate, legal representatives and witness were able to see the image of the document whilst it was being tendered. Documents already in evidence could be quickly shown to witnesses while they were giving evidence or being cross examined^[12]. Diagrams were used which showed complex financial transactions in a readily understandable way. When preparing written submissions counsel were able to refer comprehensively and with great accuracy to all relevant exhibits and transcript references. During closing addresses counsel were able to quickly refer the court to any relevant exhibit, written statement or transcript reference. The result of these time savings have been estimated to be approximately 2 or 3 days out of a 16 day committal hearing which clearly results in substantial savings to the parties and the court.

Another benefit, as yet unverified in Australia, is the greatly improved comprehension by juries of evidence when presented in the form of charts or graphs. The Roskill Report referred to research that concluded that jury comprehension of evidence improved between 20 and 55 per cent depending upon the type of diagram or visual aid used^[13].

Unresolved Problems

Given the powerful nature of computerised litigation support care must be taken to limit any potential detrimental or prejudicial effects particularly on a jury. When a computer system is used in a jury trial safe guards will have to be used to limit jury access only to evidence or transcript admitted into evidence.

Another potential problem is the appropriate use of charts or visual aids. As referred to earlier, studies suggest that visual aids greatly increase jury comprehension of complex cases. Yet it may be argued that such charts have a prejudicial effect upon a jury. Thus a court may have to balance competing imperatives that although visual aids improve comprehension such aids may arguably be prejudicial.

The evidentiary status of charts or visual aids is not clear. There is authority that charts, graphs or other visual aids may be used to explain evidence. "The use of such charts and other time saving devices in complicated trials of this kind is a usual and desirable procedure and is encouraged by the courts." Smith v R ^[14]. It seems that a court has a discretion to admit such aids into evidence where they would assist in the understanding of the evidence^[15]. A chart that merely summarises in a convenient form a series of complex transactions which have already been proved by other evidence is clearly admissible^[16]. Where the information contained in such a chart is already in evidence it is difficult for the defendant to point to prejudice. To ensure the admissibility of charts and other visual aids it may be necessary to enact specific provisions such as sub-clause 32(4) of the Commonwealth's proposed Evidence Bill 1993^[17].

Conclusion

The challenge of complex cases is enormous and must be met by innovation^[18]. A fundamental requirement is that evidence be communicated in a comprehensible way. The use of better document management and computerised litigation support in court is essential in any complex commercial or criminal litigation. The benefits from these innovations are substantial and include considerable savings in court time and costs and greatly improved comprehension of the issues and evidence by all parties. The plea for a better way of presenting complex litigation may have been partially answered.

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^[1] Unreported English Court of Appeal Criminal Division 28 July, 1992.

^[2] Unreported 17 February, 1992 Day 188 referred to by the Court of Appeal unreported judgement page 3.

^[3] LMCS is Legal Management Consultancy Services Pty Ltd who are the computer consultants engaged by the DPP to construct the computer system. Simon Lewis and David Crossley are primarily responsible for constructing the system.

^[4] Refer to note 1 above.

^[5] At page 32.

^[6] At page 34.

^[7] At page 35.

^[8] At page 36.

^[9]` These studies are referred to in Greenleaf and Mowbray, Information Technology in Complex Criminal Trials a report to the Australian Institute of Judicial Administration, forthcoming 1993, page 7. See also GFK Santow, "The Trial of Complex Corporate Transgressions - The United Kingdom Experience and the Australian Context." Australian Law Journal volume 67 page 265.

^[10] R v Adams, Hawkins and Others, unreported High Court of New Zealand 18 December 1992 Tompkins J No 240/91

^[11] Greenleaf and Mowbray, Op Cit, page 38 citing Tompkins J "A Window on the Equitcorp trial" Northern Law News Auckland, September 1992.

^[12] Some UK studies have shown it takes an average of 3 minutes to tender a document or for a jury to find an exhibit. In contrast, this can be done by computer in a few seconds. See, Simon Lewis "Putting the courts right in the picture" Computerworld 24 July, 1992 p 32

^[13] Greenleaf and Mowbray, Op Cit, page 71 citing Roskill LJ, Fraud Trials Committee Report, 1985, HMSO. See also Lewis, Op Cit, pp31-32 and c.f. Michael Levi, "The Role of the Jury in Complex Cases" in Findlay and Duff The Jury Under Attack (Sydney, 1988) p103.

^[14] [1970] HCA 48; (1970) 121 CLR 572 per Menzies J at page 577 quoting the Court of Criminal Appeal [1971] VR at pp 59-60.

^[15] Mark Aronson, Managing Complex Trials, Australian Institute of Judical Administration, (Sydney 1992) Chapter 4 and c.f. p 54.

^[16] Smith v R[1970] HCA 48; , 121 CLR 572 at pp 576-577 Butera v DPP for Victoria [1987] HCA 58; (1987) 164 CLR 180 at p 190. R v Connell and Others, unreported NSW Supreme Court per James J 27 March, 1992 No 70166/90 at p 3 and pp 7-8

^[17] Subclause 32(4) of the proposed Commonwealth Evidence Bill 1993 is as follows:

"Evidence may be given in a form of charts, summaries or other explanatory material if it appears to the court that the material would be likely to aid it's comprehension of other evidence that has been given or is to be given."

Subclause 33(1) is in even wider terms and empowers a court to allow evidence to be given in other than narrative form, where it is so voluminous or complex that it would not be possible conveniently to assess it in that form

^[18] Justice Wood, "A Time for Change - But How Much ?" National Complex White Collar Crime Conference, (June 1992) page 42.