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TECH NOTES: E-briefs: Who needs paper any more?

CIArb News / 23 September 2010

Introduction

The Chartered Institute of Arbitrators' Practice and Standards Committee recently established a Technology Sub-committee. The sub-committee's charter covers both the impact of technology on alternative dispute resolution as well as the resolution of technology related disputes.

As part of its first function, the sub-committee will be periodically publishing on the CIArb website and in the Resolver, CIArb members' magazine, short advisory notes on the use of technology in the arbitration process and this note - on e-briefs - is the first in that series.

E-Briefs

For any of us who have been confronted with lengthy briefs and a substantial evidentiary record, verifying that the parties' positions in their briefs are supported by the actual hearing transcript or documentary evidence can be no small chore.

Bouncing between the briefs, on the one hand, and the transcript as well as multiple evidence binders, on the other, is time consuming as well as distracting. It is certainly tedious. On top of this, one must also check the parties' descriptions of the law against the actual authorities to which they have referred.

The solution to this is e-briefs. An e-brief is much more than a searchable electronic or software copy of the brief. To be sure it is that. But, in addition, it also provides the backup documents to which the brief refers linked to the textual references to those documents.

In other words, each reference in an e-brief to the record or authority is a "hot" link on which the reader may mouse click and, by doing so, the record or authority in question will pop up in a separate window. There is no need to go back to the record itself or to dig out the legal authority; they are instantly available by just a mouse click.

Unfortunately, as they say, there is no free lunch. And that is true of e-briefs. For they usually need to be prepared by an outside vendor and are quite expensive. Accordingly, they should not be considered except for large cases where both the size of record and the amount in controversy justify their use.

In addition, before proposing them, the tribunal needs to be mindful that the parties may have unequal resources and that the cost of an e-brief, while justified by the size of the matter, may still be a burden, perhaps unbearably so, to the smaller party. In any event, because of the cost, the tribunal should be cautious before raising solely on its own motion the concept of e-briefs.

Other things to consider if e-briefs are to be used include:

• Make sure the text of the briefs, and as much of that of the linked materials as is possible, can be searched and copied. It should be searchable so that the reader can do "key-word" searches on as much of it as a whole as is possible. It should be capable of being copied so that portions may be included in the award without the necessity of retyping.

• Assuming that both parties use outside vendors to prepare the e-briefs, it is better if one vendor does the job for both parties. Each vendor tends to do e-briefs differently. Sometimes the differences are minor, sometimes not.

It is easier for the tribunal to learn one set of use protocols rather than two. In any event, an e-brief which is significantly harder to use may inadvertently be used less by the tribunal with some resulting potential prejudice to the party in question.

It is recognised that the use of a common vendor may in some circumstances be perceived as a conflict of interest or be difficult if the parties come from substantially different cultures and backgrounds. Such problems may be overcome by use of a vendor designated by the tribunal.

• Have each party's entire post hearing filings put on the same cd-rom. This will minimise the need for loading and unloading discs (although there will inevitably be two discs - one for each party).

• Make sure that it is easy to go from one brief to another (and back again) on the same disc and that clicking on a hot link in a brief to an underlying record does not make it difficult to return to the originating brief.

• Recognise that each party will most likely have its filings on its own disc and that the tribunal will need to be able to deal with two discs at the same time. If juggling discs is to be avoided, the best way to do this is to have two available disc drives. Most computers only have one, but an outboard drive contacted through a USB port is not expensive.

For the Technology Subcommittee of
the Practice and Standards Committee
by Thomas D Halket, Chair