Electronic casebooks – a trial judge’s experience [NZLS seminar, 30 September 2019]

Introduction

1. The first significant use of electronic documents at trial in New Zealand was in the Serious Fraud Office’s Equiticorp prosecution in mid-late 1992 before Tompkins J.[1] At the time, international best practice commended judges have “a micro-computer”, “a floppy disk drive”, and “preferably a colour monitor”, with “access to the court system’s central computer”.[2] The standards emphasised such was not for ease of display, but for the judge’s engagement with the presented material, requiring software functionality for (and training in) electronic document creation, editing, and management.
2. Thus armed, Tompkins J conducted judge-alone trial. Counsel managed production of the evidential documents from an electronic database. The Judge developed his own chronology – and topic or subject-matter outlines, progressively with events, and headings and subheadings – as the evidence was given. He linked the transcript and documentary evidence, together with his own annotations, to those skeletons, “editing the evidence every night … [giving him] the comfortable feeling that [he was] keeping on top of this huge volume of evidence”:[3]

When I am in court I normally have open the evidence managing programme, one, two or three of the outlines and the chronology. If I am taking a note in an outline, and think an entry should be made in the chronology, it is quick and easy to move from one to the other, then back to the evidence programme.

3. So far, so little change. What has changed is ubiquity. Electronic documents are the medium; electronic devices are the means; and, at least for this seminar (but also for this judge), electronic casebooks are the message. Compiled in compliance with the Senior Courts Civil Electronic Document Protocol (the “Protocol”), they permit effective and efficient presentation and collation of, and reference to, the pleadings and evidence for hearing. Judges’ hearing bundle, including the developing transcript, is annotatable to party, issue and time in a way which permits comprehensive identification of all relevant material throughout the hearing, and thereafter for judgment.
4. Counsel’s role remains one of persuasion, both of case and argument. That is enhanced by good comprehension of what happens with the electronic casebook before, at, and after trial. There is a caveat: all judges do not have the same baseline of information technology familiarity; your mileage may vary. But we are at a tipping point of judges whose pre-appointment practice was in predominantly electronic firms and chambers, and whose expectation to continue that course is not diminished by the Ministry of Justice’s paper-based record. Those increasingly are the judges it is your role to persuade.
5. It also is relevant to know of hardware at judges’ disposal. Each judge has a docked combination laptop/tablet in chambers, linked into the registry’s network (including access to case and research databases). The dock supports working screens, keyboard (and mouse), and printer(s). The laptop wirelessly can replicate network access throughout court facilities (and more remotely). In court, the judge has a wired networked terminal, (small) screen, and keyboard. The laptop is preferred for court use, particularly given its tablet functionality. The laptop includes Adobe Pro software, for dealing with PDFs. Some judges also or alternatively use their own tablets, typically iPads, for those devices’ PDF annotation applications.
6. Paper is prevalent still, even in electronic hearings. Key documents may be reproduced in hard copy for ease of reference. A chronology, and possibly index of key people, is likely to be useful at hand. So too is a ‘merged’ or ‘blended’ pleadings document – a document in landscape orientation, containing paragraph-by-paragraph claim and defence (and affirmative defence and reply) in responsive columns.

Registry process

7. You’ve carefully supervised compilation of the electronic casebook in compliance with the Protocol, and filed it on a USB stick in accordance with timetable directions. You’re ready for hearing. What happens to the product of your hard work?
8. Generally, a judge will not know of the matters for hearing next week until Thursday the prior week.[4] On that afternoon, the trolley of doom heaves into view in chambers, laden with large boxes containing the entirety of each case’s flat (paper) file, segregated by coloured tabs into divisions of decisions, pleadings, memoranda, and administrative documents. The box will include (or, on late(r) filing, be supplemented with) any hearing bundle and opening submissions.
9. The case officer will have tagged the file’s core documents: for witness trials, essentially the relevant pleadings and openings; for interlocutories, also the affidavit evidence. Until relatively recently, included somewhere on that file would be a nondescript envelope, hole punched to secure it in the file, containing your USB stick. (It was a measure of judicial diligence to discover it – usually by noting a timetable order for its production, and then wondering if that was met.) The USB stick was not taken into the registry’s systems, other than by notation on the file’s index, and inclusion of the envelope in the proceeding’s flat file.
10. Now, when a matter is allocated to a judge for hearing, the registry provides the judge (or associate or clerk) with a hyperlink to the subfolders and files contained on the USB stick, downloaded after filing to a folder titled with the proceeding’s case number on a common drive within the registry. The judge (or associate or clerk) copies the folder to a drive accessible only to those three. They deal subsequently with that folder, and not the centrally-filed folder downloaded from your USB stick.

Pre-hearing

11. Obviously, much depends on time and materials available to the judge in advance of hearing.
12. The starting point is always the relevant pleadings: the claim and defence, or application and opposition, for hearing. As may be seen from the electronic casebook format, those immediately are identifiable and reviewable. Judges tend to read prior decisions on the file, including any minutes going beyond routine case management.
13. The exercise is to isolate issues for determination, and (more particularly for interlocutories) to identify any apparent gaps in the evidence. To that end, the ‘merged’ pleading document is of singular utility. If key documents (eg, contract, trust deed, constitution) can be identified (for example, as hyperlinked from the pleadings), they may briefly be scanned, as will counsel’s opening submissions.
14. If pre-hearing opportunity permits, the judge may begin to work up a draft issues (and sub-issues) list. Because the electronic casebook tends to be amended or supplemented until shortly before hearing, judges try not to annotate their copy until the hearing commences.

Hearing

15. At hearing, judges largely are reliant on counsel to be led to relevant documents. The judge will have the electronic casebook index open on their device, and follows counsel’s directions to the document at issue. It is to be remembered, irrespective of the comprehensiveness of the common bundle, only those documents referred to by counsel in opening, or produced by a witness, are evidence in the case.[5]
16. First, it is important counsel use consistent references to the document. The document filename’s entire number string may not be required, but only the document’s suffix number. (It should be evident if counsel is referring to pleadings, evidentiary statements, or the common bundle – the casebook’s three principal categories of document.) If counsel is referring to a pinpoint reference within the document, it will be necessary first to refer to the suffix number (that is, the document’s starting page number), then to the particular page number within the document. The suffix number enables the judge to locate the relevant document within the index, and then to go to its first page, and from there to any pinpoint reference.
17. Although individual judicial practice will vary, I tend to annotate the specific document with the party producing it, by either counsel’s opening or which witness, and then if in evidence-in-chief, or on cross- or re-examination. I will highlight particular passages to which I am taken, colour-coded to each party, and note in the margin any pertinent comment from counsel or witness.
18. Either in the course of the hearing, or in adjournments, I will tag the document to my issues list, reworking its classification as the list develops in the course of the hearing. I supplement that with an automated references index, which lists in chronological order hyperlinks to documents to which I have been referred during trial. (The list and index are located in the ‘For judicial use only’ section of my copy of the casebook, together with any other documents I have created or choose there to include.)
19. Judges’ work at trial involves a fair degree of multi-tasking, especially if the document is being produced only in passing reference by witnesses, while their oral evidence continues to be delivered. Hence the desirability of hyperlinking briefs to exhibits. But, because briefs traditionally are not received by the Court until the witness gives evidence, that practice requires some adaptation if the Court is to have access to the hyperlinked brief at the time evidence is to be given.
20. Time is required to download the hyperlinked brief to the judge’s device, and to incorporate it within the judge’s (now-annotated) electronic casebook together with the updated index. Additional documents can similarly be brought into the electronic casebook. A whole replacement electronic casebook at the end of trial is not a substitute, because it omits the judge’s annotations made at trial. Given those personal annotations, filing with the registry is not alone sufficient to ensure the judge has the additional documents in a timely way.
21. In electronic trials, when witnesses’ exhibits also are being produced electronically on common screens before judge, counsel and witness, I am replicating each document on my own device, to be able to mark it up as I have explained. This requires some attentiveness from counsel, to ensure – even although the judge has the document displayed on the common screen – the judge also has correct references and time to bring up the document, to be able to annotate it.
22. Second, counsel responsible for operating the common electronic presentation of exhibits should be reasonably competent in navigating the electronic casebook. Beyond the standard reference to documents from the casebook’s index, there should also be familiarity with other means of searching the casebook, by page number or search term. Scrolling through the documents at speed is exceptionally disconcerting to those without control of the screen before them, particularly witnesses. Witnesses also need opportunity to be familiar with the context of the portions of documents displayed to them.
23. Incidentally, screensavers should be disabled on the operating counsel’s device: unexpected appearance across common screens of personal photographs, or (worse) corporate law firm branding is to be avoided. While the former merely may be embarrassing, the latter particularly is objectionable. Similarly, counsel should guard against inadvertent disclosure of email, SMS and calendar pop-up notifications, and of other screens open on the operating counsel’s device. Desirably, the operating device should only have the electronic casebook open, and any other communications disabled.
24. Third, the National Transcription Service (“NTS”) now has achieved compliance with the Protocol in its provision of the Notes of Evidence, or transcript. That compliance is sufficiently new as may still require reminders for word-searchable PDFs, particularly progressively through trial. The NTS also has developed capability to embed in the transcript hyperlinks to the common bundle as documents are referred to in evidence. While additional liaison between counsel and registry is necessary to achieve those links progressively in the course of trial, it can now be done.
25. If time permits, closing submissions also should be hyperlinked to the common bundle, transcript and authorities, desirably with pinpoint references.

Post-hearing

26. As you might expect, there is a reasonable degree of industry, post-hearing. My associate will ensure all exhibits, other incidental documents produced during trial, and the notes of evidence are included in my copy of the electronic casebook, together with such hyperlinking as may be helpful. There may be additional inclusions or supplementation – for example, of particular exchanges with counsel, or my own chronologies or issues lists.
27. I then work my way through the hyperlinked chronology, and complete my tracing of evidence (including from the transcript) to issues. I identify the substance for evidentiary disputes, before beginning the task of drafting my judgment. My clerk later will use the electronic casebook to compile identified extracts of evidence or from authorities for the judgment, and in proofing the final judgment.
28. Working from the electronic casebook means I can continue preparation and finalisation of my judgment without needing also to have access to the proceeding’s paper files. Such portability is significant, because it means my own work can continue when I am on circuit or otherwise away from chambers. For reasons of security and file integrity, transportation of the Court’s paper file (which is the only hard copy of the filed documents) outside its precinct is discouraged. And the ability for multiple people to have contemporaneous access to the electronic casebook significantly aids collaboration with my associate and clerk, who need not to be in proximity either to me or the paper file.

Conclusion

29. The Protocol is designed to capitalise on lawyers’ work – the electronic creation of pleadings, discovery lists, witness statements and submissions – that will be conducted regardless. It enhances that work by providing a joined-up product from trial, able to be used as the foundation for judgment and any appellate consequence. The efficiencies are obvious and meaningful – for parties, counsel and the Court.
30. In its latest iteration, the Protocol thoroughly has outgrown its appellate origins, and now provides a sound and accessible foundation for efficient and effective conduct of trial. Gaining familiarity with electronic casebooks’ operation, which is simple and logical, must be a predominant objective for counsel.

­—Jagose J
30 September 2019

[1]      R v Adams T240/91 HC Auckland, 18 December 1992.

[2]      Greenleaf and Mowbray, Information technology in complex criminal trials (AIJA, May 1993) at 2.7.

[3]      Tompkins J, “The computer in the courtroom”, address to the Fourth Criminal Law Congress, Auckland, 15 September 1992; abridged as “A window on the Equiticorp trial”, Northern Law News (ADLS, 25 September 1992).

[4]      The exception is proceedings case-managed by, or for allocation to, a pre-identified judge for hearing. These usually are complex longer causes.

[5]      HCR 9.5(4).