October 1, 1997
The new federal court building in downtown Minneapolis provides a peek into the future world of computer-assisted litigation. Each courtroom has all the necessary hardware connections needed so clients and their counsel can present their cases on desktop and large screen monitors, including text documents, photographs, deposition transcripts and computer animations. Following closely behind these courtroom upgrades, many attorneys, including those at Fabyanske Westra & Hart, have upgraded their own computer technology to take full advantage of these new opportunities. The topic of this briefing paper is to discuss how construction-related clients can benefit from recent advances in computer technology, both in the field during construction and during the preparation and presentation of construction disputes.
Computer technology will not change the kinds of documents typically created during a construction project. Such documents include: daily reports, change orders, daily cost accounting records, timesheets, and correspondence between an owner, engineer and the contractor(s). Nevertheless, the traditional approach to organizing, storing, and communicating these documents has always been a significant overhead expense on a construction budget. Computers have already been used for creating and, to some extent, storing information during a construction project. Recent advances in storage capacity, imaging hardware and software, and the Internet can dramatically change the way construction documents are stored and communicated, providing advantages to all parties involved.
A few years ago, one of our clients, a contractor on a large municipal construction project, mobilized a separate office trailer solely for the purpose of storing project documents as they accumulated during the two years of construction. At the end of the job, the contractor waded through all of these documents for several days to determine where they should be sent, and how they should be stored. This unwieldy and risky practice for storing job documents is typical. The danger, of course, is that these documents could become completely disorganized or even lost during the project.
Construction attorneys have also suffered the consequences of dealing with document-intensive cases. In the past, when a construction dispute was referred to legal counsel, attorneys used computers only for word processing, limited document organization, and of course, billing. When a construction dispute arose, the party to the construction project traditionally sent to its attorneys all project-related documents, which can amount to a roomfull of documents. The documents were then organized and reorganized, as the issues of the case became more clearly focused. This “hard-copy” approach to preservation and organization of documents has been, and to some extent will always be, a significant cost and time factor for the client when a claim or dispute arises.
An attorney on a construction case must assist their client in organizing the sometimes huge amount of documents involved on a construction project. However, a construction attorney must also be able to present all of this information in a way that not only makes sense to a trier of fact (e.g., arbitrator, judge or jury), but also in a manner which convinces the trier of fact that the client deserves an award in its favor. Presenting a construction claim has always meant balancing a very large amount of information, much of which could be helpful, against the patience and attentiveness of the trier of fact. The use of hundreds of documents, some of which may exceed several hundred pages in length, can make it difficult for construction clients to achieve the requisite balance between comprehensive and concise presentation of a client’s position. Continuing advances in computer technology, coupled with greatly reduced prices for both hardware and software, promise to streamline the process of organizing and storing documents in the field and during litigation, while making communication during construction and presentation during litigation much more effective and less costly.
There was a time, in the not too distant past, when a contractor might encounter what it believed to be a changed condition, spend the better chunk of a day writing a letter and gathering photographs to be sent to the owner or its representative. The U.S. mail carried the letter to the owner, who might be able to respond with a letter that very same day. At a minimum, such correspondence required two days just to resolve what might be a minor dispute regarding site conditions encountered on a typical construction project. Even faxes have had limited usefulness because they do not adequately convey photographic images or fine print data.
The use of laptop computers, speedy new modems, the Internet, and relatively inexpensive scanners and scanning software make it possible for this time-consuming situation to disappear. With the current state of technology, a contractor who encounters a condition which it believes constitutes a change can take pictures, download the image into its laptop with a scanner (or use a digital camera and skip the scanner), attach the photographs to an E-mail, and send the E-mail to the owner or its representatives within a few seconds. In response, the owner or its representatives can view the photographs and respond to the contractor immediately, either by asking for more additional information or with an attached letter to proceed. Of course, this is only the component of communication which has been dramatically benefitted by recent changes in computer technology and communications electronics.
Advances in computer technology can also simplify the process of organizing and storing documents. On a typical construction project, a contractor’s project manager or an owner’s project engineer might submit to its respective home offices daily diaries or foreman’s reports once a week or even once per month. At best, construction managers might mail project records on a daily basis, which leaves a one-day gap between the field and the home office. In addition, such documents can become cumbersome as on-site representatives may wish to preserve their records for reference on site and simply send copies of such records back to their home offices. The ever-increasing speed of computers, and the lower prices and better quality of input devices such as scanners now allow on-site representatives to avoid the delay in submitting such reports to the home office, and avoid the cumbersome and time-consuming organization and storage of such documents on site. With the use of a scanner and storage medium (CD Recorder, DAT Tape Backup System, or removable “disks” such as JAZ drives), an on-site representative can now draft a daily progress report, scan the report into the on-site computer, back it up onto digital storage medium, and send the hard copy back to the home office for storage. To decrease the delay time, the on-site representative can also send the document directly to the home office computer with a few keystrokes. The on-site representative continues to have all of its documents at its fingertips, while allowing the home office to worry about organization and storage of documents.
The combination of hardware and software advances also allows construction attorneys to provide to their clients a more cost- effective, less time-consuming, and more easily understood presentation of claims and defenses in a construction dispute. Our firm is using several new hardware and software components in order to more effectively prepare and present claims on behalf of our clients. We have implemented a plan to upgrade every computer in the firm to Pentium processors with CD ROMs and Internet connection capabilities. All of the attorneys in the firm will have the option of a laptop with its own CD ROM drive and Internet capabilities. On the software side, each attorney will have at its disposal the following software packages: ProLaw (a comprehensive case management, docketing, and billing software package), Summation (a database program specifically designed for attorneys in document-intensive cases), Trial Link (a courtroom presentation program specifically designed for litigation attorneys), and WinVizn (an imaging, OCR, and document retrieval software package). In addition, these litigation-related software packages can be used in concert to streamline the organization of documents, preparation for trial, and trial presentation itself.
Summation, WinVizn and Trial Link allows us to “burn” construction documents onto CD ROMs, organize them in a sensible fashion with an independent database, which is also linked to these CD ROMs, and to present all of this information in a palatable fashion at trial with minimal wading through the thousands of pages of documents typical on a construction case. The use of this software and hardware upgrade not only makes it easier for us as attorneys, but can also greatly reduce the cost of preparing and presenting a claim or defense in a construction case.
In a recent case, we used Summation, WinVizn and Trial Link to store, organize, and present a fairly document-intensive case for an existing client. We used Summation as our database and deposition storage program to organize our documents at increasingly focused levels as the case progressed. First, all documents produced by the contractor, the owner and design firms involved in the construction project were organized in a summation database. As depositions and discovery progressed, we used Summation to enter new exhibit numbers into the database and attach identification codes to the deposition witnesses who had testified regarding each of the documents in our already existing database. This way, when we prepared for the trial itself, we were able to identify a comprehensive stack of documents to discuss with our own witnesses and to prepare for cross-examination of the opposing party’s witnesses, all with just a couple of keystrokes. We were also able to stay on top of our document organization at trial by using Summation each night as we revised our witness outlines. This greatly reduced the amount of time we were required to spend simply organizing documents, both prior to and during trial, which allowed us to spend more time on effective and persuasive presentation of the case.
In recent cases we have also used CD ROM technology to store all documents identified in our Summation database. This option, which has only recently come within a reasonable price range, allows us to call up any document in the case at any time from any location. In addition, the process allows us to communicate on a regular basis with our clients regarding construction-related documents, without requiring the attorney and the client to make multiple copies of the entire set of documents. Once the universal set of documents are “burned” onto CD ROMs, additional copies of the CD ROMs (each of which holds up to approximately 12,000 pages of documents) can be duplicated for less than $100 each.
Time spent preparing exhibits for trial or arbitration is one of the most expensive components of presenting or defending against a claim. However, time spent at trial or in the arbitration is also very costly. The use of imaging software such as WinVizn, database software such as Summation, and presentation software such as Trial Link, if properly used, can greatly diminish time spent presenting a case to the arbitrator, judge or jury.
In a recent case tried to a judge, we set up monitors at the witness stand, the judge’s bench, and at both counsel tables. Using Summation and Trial Link, we were sometimes able to review hundreds of pages of exhibits with a witness without ever requiring anyone to pick up a single document. Looking back, it’s hard to say just how much time we saved overall. Attorneys have a way of using up extra time if allowed. However, in addition to perhaps saving some time at the trial, and certainly saving time preparing for the trial, each client’s witnesses were on and off the stand much quicker than they might otherwise have been, allowing them to go back to the jobs they were paid to do. More importantly, by focusing on only specific portions of selected documents with each witness, we were able to present a comprehensive amount of information in support of our client’s position, without unduly risking the impatience, attention, and even wrath of the judge.
Computers will never change the need for parties to a construction contract to continue to create the daily documents which are essential for tracking progress and costs on a construction project, and also preserving documentation should a claim arise in the future. However, once these documents are created, recent advances in computer technology have allowed our clients to save time and money during construction. The use of such technology has also reduced the time and costs associated with litigating a construction claim, and has rendered the presentation of construction cases more effective.
This discussion is generalized in nature and should not be considered a substitute for professional advice. © FWH&T