By Paul R. Kiesel

The concept was a simple one, borne of necessity, as most creativity is. The problem is sim- ple to articulate: In April of 1999 my firm was brought in as plaintiffs' trial counsel in a construction defect case involving the manufacture, installation and use of galvanized steel pipes for the potable water system in housing development. These pipes corroded prematurely, causing brown water, pin-hole leaks and stained fixtures.

Most of you have had an experience like this - you arrive 10 minutes before a court appear- ance, the are four cases on calendar, and every seat in the courtroom is taken. You tuck yourself into a corner. The Court takes the bench and calls the first case. "Smith v. XYZ developer." The next thing you know, the gallery is emptying, the seats are opening and a huge crowd descends on counsel table. The court reporter looks frightened. When an attorney opens her mouth, the court asks all counsel to wait until they're in position, not speak until everyone has appeared on the record and "never speak without first identifying, for the sake of the court reporter's sanity, your name." You've been there, right? Oh, I forgot to mention this picture usually includes one plaintiffs' attorney and 20 plus others on the defense side of the room.

Such was the case I found our firm agreeing to associate in to. To be precise, there were four cases involving the same alleged defect with 42 defense firms lined up on the other side. Being the process-driven and economically-minded attorney I am, my first thought was the nightmare of attempting to communicate with so many attorneys at one time. Every time I sent a letter, my poor office staff would have to copy 41 other firms. This, however, proved to be the least of the prob- lems. Within 24 hours of our firm filing its Notice of Association of Counsel, I began receiving copies of the defendants' cross complaints against one other. Like a snow storm off the Great Lakes, the paper began falling heavier and heavier. In the mid west it's called the "lake effect," in Los Angeles, It's called a paper storm. Our office, quite frankly, was absolutely disinterested in all the cross-com- plaints. Our associate counsel had only sued the developers; the developers in turn cross-com- plained against the sub-contractors, and each one was cross complaining against the next. By the end of the month, we had two litigation boxes of material, and my paralegal could barely keep up with the indexing. The proof of service changed weekly, and my legal assistant was nearing a nerv- ous breakdown, printing, stuffing and stamping so many envelopes. Just when my legal assistant thought it couldn't get any worse, it did. Motions for Class Certification were being filed and, of course, copies had to be sent to each counsel. Enough was enough. There had to be a better way - there was.

I contacted the lead defense counsel and floated an idea both simple, yet difficult to imple- ment. I said "Hey, we've all got email; how about if we agree that, rather then serving everyone with a hard copy of every document, we serve a hard copy only the counsel who's directly affected by the document, and, if appropriate, file with the court." It turns out that my office staff weren't the only one being driven insane by the mass of paper.

After receiving the blessing of the lead defense counsel, I began contacting each firm to ask if they would stipulate to allow email as the exclusive method of service. To my extraordinary relief and satisfaction, all but two of the firms had email, and all AGREED to my proposed stipulation. Several weeks later we completed an amendment to our Case Management Order, providing for email as the approved method of service. The two firms without this capability were referred to euphemistically as the "dinosaurs."

What an amazing relief. The paper flood ceased, while the electronic mail mushroomed. The dinosaurs were sent hard copies, while the rest of us checked our computers for the latest pleading, correspondence and changes to the proof of service. Having put this system in place, we began experiencing problems none of us envisioned when we embarked on this grand experiment.

The problems included:

1. In what format should the documents be sent. (We opted for WordPerfect, but WordPerfect was not the most elegant solution, since not all counsel could convert the WordPerfect documents into Word.)
2. How to confirm that an email was received. (We all assume that if the send button is hit, the email reaches its 42 destinations.
3. What if an attorney is out of town and can't check in to his/her email and a substantive motion is sent?
4. Some attachments, even though sent as WordPerfect documents, still couldn't be opened. Then there was the time that I began receiving complaints that some counsel hadn't received emails. I eventually figured out the problem. At the start of 2000, our office modified our computer servers and inadvertently knocked the email server off line for two weeks. So, here I created a system that relied on the computer, it was working very well, but I was disconnected. Just as I was about to admit defeat and suggest returning to paper, a wonderful thing happened. Our 4 galvanized steel pipe cases were consolidated with 4 other similar cases and collectively transferred to an exceptional, creative, forward- thinking trial judge in the newly created Complex Litigation Pilot Program, Judge Peter Lichtman.

Judge Lichtman was impressed with the efforts we made in organizing the litigation, and he was determined to take us to the next step. Not only did he take us to the next level, he improved on the original design. Here's what he did. Recognizing the limitations we experienced with email, but realizing the tremendous savings we all enjoyed in using an electronic format, Judge Lichtman suggested a service he had seen demonstrated at a recent judges conference. The service hosted cases on the web and could function as everything from a document repository for discovery to a place for all depositions and discovery responses to be posted, as well as post ALL COURT FIL- INGS and communications between counsel. The company offering these services is ICRS.com. The judge invited the owner of ICRS to his department, and ICRS put on a demonstration for coun- sel. The cost was a bargain - about $20 bucks a month. The elegance of this service was that we now longer needed to rely upon our individual servers, but could simply access the ICRS web site from anywhere in the world.

Each day, the documents forwarded to ICRS would be posted in the appropriate folder, for example, motions, court rulings, referees' recommendations, etc. In addition to posting the item on line, ICRS sends out an email advising counsel what documents were received on that day. However, if you are out of the office, you can still access the site to see what documents were received. But here's the BEST part of the ICRS service. After you enter the password and access the particular case hosted by ICRS, each "case" has a "bulletin board." The bulletin board can be used to communicate with all counsel or post a message for particular parties.

Judge Lichtman, with the stipulation of all counsel, obtained agreement that the parties could communicate with the court, and the court could communicate with the parties, by posting a mes- sage on the bulletin board. All of us are familiar with the 11:59 a.m. phone call advising of the Ex Parte at 8:30 a.m. the following day. You wind up schleping to court and waiting 90 minutes before the court takes up the application. The time, effort and often times frustration associated with this process can be extreme. Enter the bulletin board. By simply posting a message to the court, the judge, who views the site several times a day, can respond to counsel's question. Essentially the court ruled that any ex parte motion can be brought by posting the request on the bulletin board and waiting for the court's reply. While I realize at first blush this seems like a fairly dangerous proce- dure, let me assure you, at least in our GSPL litigation the bulleting board has been an inexpensive, simple and effective way of communicating with the court what might otherwise take days or weeks to accomplish.