A Paperless Pandemic?

The Covid-19 pandemic has left barristers, like so many others, stumbling through a new world of remote working. Ross Birkbeck is a barrister at Old Square Tax Chambers, and the founder and inventor of Casedo, a software application for legal reading, analysis, and e-bundling. An advocate and pioneer of the paperless practice, he recently spoke (remotely) with Tom Haggie, of QEB, about working digitally before and after the current crisis.

Tom Haggie: How has the current crisis affected how you run your practice?

Ross Birkbeck: Not much actually. The fact that I have always run a genuinely paperless practice has meant that the transition to working from home has been seamless – all my files were already accessible on my laptop, as is all the software I use. I already access 90% of my legal resources online. So I can easily plug in a few extra screens (I am a big advocate of upscaling your screen real-estate) and the working experience is pretty much exactly the same as in Chambers. Or it would be were it not for the home-schooling…

TH: Are you really completely paperless?

RB: Barring the odd notebook, which is still the best way of taking notes when the other hand has a telephone in it, yes. If I get sent physical bundles I scan and shred them (though actually, in my practice, I tend to get a dribble of docs sent by email).

I’ve worked this way ever since becoming a lawyer – it is a legacy of my past career as a video editor. The film and video industry went almost completely digital about 20 years ago. So despite never being very tidy in the physical world, I was forced to be very organised digitally when dealing with the thousands of video clips and project files and other assets that are needed when assembling a film.

I thought it would be easy to apply the same principles to work at the bar, given how little data is involved in most cases by comparison to a film. As it turned out, the paperless workflows used by lawyers were still incredibly basic and immature. But I was determined to make it work, even if I did have to invent my own software to do so!

TH: What are the advantages of ditching paper?

RB: Speed is the obvious difference. It is not the time actually printing that is saved, which is probably matched by time spent scanning. The real saving is in the increased speed of research and analysis. Finding information, both new and bits you have already found once before but need to go back to, is dramatically easier, more reliable, and faster when dealing with digital documents if they are properly organised and you know your tools. And having everything at my fingertips means I can respond to queries from clients or leaders very quickly, or pick up a matter that has been dormant for some time with minimum lag.

But there are also obvious benefits when it comes to remote working, data security, and cost too. I can pick up my laptop at home and carry on exactly where I left off in Chambers even if I didn’t plan to do so before I left, which is liberating.

TH:           A career at the bar is generally quite demanding and many practitioners worry about their ‘work/life’ balance, and their mental health. Do you find digital working helps with either of these concerns?

 RB: I think people do not realise the time wasted, and the additional frustrations, of both paper based legal workflows and bad digital ones.

The former involves huge amounts of waiting around for the paper to be printed, bundled and filed. Often, information that is needed quickly is in the wrong place. Mark-up gets lost, resulting in repeated reading and work. Just the additional thinking that has to go into ensuring paper bundles are in the right place at the right time takes up a surprising amount of thought and worry.

But equally, digital tools can be incredibly frustrating when they are deployed inappropriately (it is rarely the design of the software that is the problem – most likely it was simply just not designed for the job we want to use it for). Conflicting versions of a file is the digital equivalent of having your bundle in Chambers when you need it at home, and just as frustratingly results in repeated work.

All this results in stress. This kind of ‘administrative burden’ is in fact more stressful than the burden of having to do heaps of substantive legal work, not least because we believe we shouldn’t be doing it and shouldn’t (or aren’t) charging for it.

So a well thought though digital workflow can do wonders for mental health. I myself have spent a lot of time getting a set of tools and best practices set up. Some might argue lost time, but I am convinced it was entirely worth it. Rather than finding myself frustrated at wasted time and effort on menial tasks I am (self) satisfied that my system makes me faster and more efficient. I think, as a self-employed person, reducing the hassle around actually doing the job you are paid for can really help with how quickly you can do your work, and how stressful you find it.

TH: Do you see the crisis changing the way barristers work for good?

RB: Yes. And for the better. Barristers as a group have been slowly feeling their way towards a paper-light world for some time, but now they are having to accelerate this process in order to work from home. A lot also have more time on their hands than usual, and this combination is providing both the motive and the opportunity to experiment with new tools and processes. This will lead to lasting change: Zoom for example will not go away – I have already heard many barristers comment on how much better video calling is for client conferences than a simple telephone conference call. Nor will e-bundles and the benefits of search and portability that come with them be put aside after barristers have mastered the tools to use them. It is very hard to imagine going back to a less efficient way of doing things.

I also suspect that one of the side effects for the bar will be more working from home as people realise that, once they are digitised, there is very little to prevent it. This will re-enforce the effect.

 TH: What does the future hold? Is the paperless bundle just the start of barristers ‘going digital’?  

 RB: There is a lot of speculation about how AI is going to change the legal profession. For now, however, in litigation, this is only really affecting the disclosure process of large scale commercial disputes, where machine learning techniques are often the best way of sifting relevant from irrelevant evidence. But this tech is still very expensive, and impractical/impossible to apply to the vast bulk of litigation.

It will trickle down in some form, though. This will likely look to the average barrister like advanced search and sorting: the ability to immediately find, tag, and order a specific kind of evidence automatically (emails form a specific person to another, buried in a huge bundle, for example). This will offer a litigation team huge speed (and therefore cost) savings. The main question initially, as with even basic search now to some extent, will be how much we, as lawyers, trust the results. I suspect that for some time lawyers will insist on double checking the results of these tools, for fear of missing out on a vital piece of information that the algorithm might have missed. Some will dismiss them entirely. But eventually, if they are good tools, we will learn to trust and rely on them.

Perhaps more important for the average litigant will be the online courts, which are being scaled up now after what was generally considered a successful introduction. How barristers will interact with these remains to be seen, as in some forms the online court is a radical re-invention of the judicial process that goes far beyond the paper vs digital question.

 TH: What are the changes to court procedure you’d like to see to assist digital working?

 RB: I think the biggest single change that could be implemented now would be a shared storage location for court files for each case. A dropbox like space with managed permissions that would allow all parties and the judge to distribute documents to all others transparently and flexibly. It would eliminate the arcane concept of service once the case is up and running, reduce procedural disputes, save costs and reduce the risk of parties turning up to court with different documents to everyone else.

I would also like to see more screens in the courts and tribunals, so that when an advocate is referring to evidence they can bring it up in front of the Judge, witness, and the other side directly. If the screens were there this is not hard to set up, and would streamline things hugely.

 TH: How will this work for litigants in person? What needs to be done to help? 

 RB: The biggest barrier for litigants in person (and access to justice generally), has always been complexity – of the law, of the procedure, and of the facts. Technology can help with this – but it can also be part of the problem. I have seen far too much legal tech that is inaccessible. And I don’t just mean technically inaccessible, as in too many options and menus to figure out how to do things – although there is a lot of that. I also mean that it is often hard to understand what the tech does and how it will respond to your input. Online legal questionnaires designed to guide litigants in person often fall foul of this, for example – people know questionnaires are inherently blunt tools and one wrong answer could send them down the wrong track completely. They don’t want to trust their entire case to a process they don’t understand. So by simplifying the process too much you simply hide the complexity, rather than remove it, and that is no solution. It is a fine line to tread.

 TH: Finally, what are you top three tips for a barrister who is going paperless?

RB: Two 27-inch screens (at least) are worth the investment. The space increases productivity and is good for your health.

Commit to cloud storage. OneDrive and Dropbox are both GDPR compliant, provided really good backup facilities, and enable you to always have access to your work.

Use Casedo – it’s as close to a paper bundle as you’ll find, and very simple.

 

Ross Birkbeck  barrister at Old Square Tax Chambers and Tom Haggie, of QEB

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