Judges Deliver Wake-Up Call

Jan 24, 2019

Korbitec president Alan Bass describes several cases in which the judge capped the winning party’s recovery of costs because they failed to use technology to reduce the time spent preparing for trial.

Judges Deliver Wake-Up CallThe legal profession received a wake-up call when a pair of judges factored the parties’ use of technology into their decisions on costs, says Korbitec president Alan Bass.

In one case, Ontario Superior Court Justice Alan Whitten capped the winning party’s recovery for costs and disbursements after concluding “counsel’s preparation time would have been significantly reduced” had artificial intelligence sources been employed for research purposes.

That followed another decision by his colleague, Justice Paul Perell, who labelled computer-assisted legal research “a necessity for the contemporary practice of law” that should be recoverable as a disbursement or counsel fee item.

“Properly done, computer-assisted legal research provides a more comprehensive and more accurate answer to a legal question in a shorter time than the conventional research methodologies, which, however, also remain useful and valuable,” Perell wrote.

And Bass tells AdvocateDaily.com that he expects to see more judges follow suit in the future.

“Not only is this a wake-up call to the legal profession, but it has also flagged the issue as one for other judges to look out for in future,” he says. “In my view, it’s not just restricted to artificial intelligence [AI], but to the use of any technology that speeds up the time it takes to go through court processes.

“As a firm that develops document automation technology for litigation, this is something we’ve been saying for a long time,” says Bass.

According to Whitten’s decision, the plaintiff’s claim for damages under the Occupiers’ Liability Act — against the owners of a bar where she fell and injured her ankle — was summarily dismissed.
However, when the defendants requested partial indemnity costs, the judge took issue with their claimed fee for legal research of case precedents. Whitten also questioned the need for 80 hours of counsel preparation time on a summary judgment motion.

“In this day and age of boilerplate pleadings and the instant availability of drafting precedent, the hours expended appear to be excessive. The same could be said of the conduct of the examinations for discovery,” he wrote.

Bass says lawyers who view the decision too narrowly risk missing the point.

“It’s easy to look at the comments about AI and dismiss it as too advanced, but the overarching theme is that with the technology and tools that are out there today and inexpensively available, the time it takes to do certain tasks is not what it used to be,” he says. “If you’re not prepared to use them, then you should not expect to be reimbursed for the extra time and expense you took.”

According to Bass, the shift in judicial attitude may be a result of the youth of the most recent generation of appointees to the bench.

“One tends to think of a judge as an older, slightly out-of-touch person, but that’s not the reality,” he says. “I have a friend who was appointed a few years ago in his early 50s, and these are people who are well versed in technology because it was central to their own time in practice.”
More recently, Bass has even encountered interest from the government about the possibility of developing automated document assembly technology designed for the judiciary, rather than just lawyers.

“It’s encouraging to see an awareness from the bench of the benefits of technology in law,” he adds. “If messages like the ones we have seen in these decisions come from the judges, it will help lawyers to recognize how they have to change.”