Although I have long had an interest in disclosure and specifically in electronic disclosure, the sense that there was a mission and a message to promote dates from the IQPC conference in London in May 2007. It was the first big conference I had attended, and was the first time I met Senior Master Whitaker and heard him speak. The other speaker who caught my attention at that conference was Mark Surguy of Pinsent Masons. His message was not addressed to those accustomed to e-Disclosure but to lawyers who might find themselves suddenly involved in a case which required skills and knowledge about handling electronic documents for which their experience had not equipped them. His message was that everyone should know what they would do if an urgent e-Disclosure problem arose tomorrow. Lawyers ought, he said, to know who they would call whom they could trust, and what the terms of engagement would be. His suggestion was that every firm should identify at least two providers of software and services and should have reached a framework agreement with them on matters including price and the divisions of responsibility and liability. Read the rest of this entry »
The most powerful single message from ILTA INSIGHT 2010, held in London yesterday, was that lawyers risk becoming merely part of the clients’ processes in a slot marked “insert lawyer here”. Technology must become part of the lawyers’ business processes, and not merely an adjunct to them.
ILTA INSIGHT 2010 took place yesterday at the Grange Hotel St Paul’s Hotel. Peggy Wechsler and her team put on an interesting programme, as ever, at an event which always manages simultaneously to be friendly but challenging. ILTA’s scope is much wider than my own specialist subject, e-Disclosure, embracing every aspect of bringing technology to the business of being a lawyer and, in consequence, has a delegate contingent which is wider than I usually see. There is a greater emphasis on law-firms-as-businesses, which tends to be side-lined at pure e-Disclosure conferences. It deserves a place there – the internal decision-making about this aspect of the litigation process should be driven as much by the firm’s own costs as by those incurred by the clients.
The British election has so far not thrown up a single defining slogan, that killer combination of words which simultaneously captures the mood and skewers an opponent. Abby Ewen of Simmons & Simmons came up with one at an ILTA INSIGHT session led by Charles Christian of Legal Technology Insider and the Orange Rag blog. The context was the identification of things which lawyers are good at, as opposed to all those other things which they do as part of their traditional work for clients and to the (relatively novel) idea that they are running a business. Abby said that “not much of what lawyers do is all that clever stuff they went to university to learn”. It was important, she said, to “try and extract the things which lawyers are not very good at”. The corollary to that is that the clients are only interested in those things which the lawyers are good at, so that they, and the charging rates which go with them, are applied only when necessary. Read the rest of this entry »
Lawyers tend to overlook structured data. If they think of it at all when giving disclosure, it goes into the box marked “too difficult to deal with”. A decision that it is disproportionate to handle it may be right, but “decision” implies that its value has been weighed against cost, which is not the same as just ignoring it. I asked Jim Vint at FTI Technology to give me some examples where structured data was crucial to a case.
In general, lawyers like structure, with its implication of order and of things being in the right place. I do not necessarily mean that they (or “we”, strictly, since I am a lawyer too) prefer that every day is the same from alarm clock to Ovaltine (that is what the civil service is for as a career), but lack of organisation wastes time, and time is money. If you need a library book, your favourite coffee, or a particular iTunes track, then it is helpful to have some degree of pattern and consistency to help you find those of a like kind in a regular place. You expect a library to group its stock by subject and type, and not have law reports, textbooks and periodicals stuffed any old how into random shelves or all over the floor; imagine going into Starbucks and being told that every possible permutation of coffee, chocolate and the rest is in a cup somewhere, but that you must lift each lid to see which is which; you would not appreciate having to scroll down endless lists of iTunes tracks until you find the one you want. We go for the structured stuff every time. Read the rest of this entry »
Professor Dominic Regan and I will lead a session on electronic disclosure at Ely Place Chambers, 30 Ely Place, London EC1N 6TD on Wednesday 12th May 2010. The event starts at 2.00pm and will run until 5:15pm
This is the first of an intended series of talks around the country. Dominic Regan is Visiting Professor of Litigation at City University, and is well-known as a speaker on all aspects of litigation, and particularly on costs. He will talk about the law and I will cover the practical aspects of handling electronic disclosure in a climate which, thanks to the recent cases, brings enhanced risks to reputation as well as in relation to the actual conduct of the case on behalf of the client.
Of particular interest at the moment is the ESI Questionnaire annexed to Master Whitaker’s judgment in Goodale & Ors v The Ministry of Justice & Ors  EWHC B41 (QB) (05 November 2009), one of the topics which we will focus on.
Lord Justice Jackson has highlighted the value to practitioners and judges of education in this area, including the benefit of actually seeing some of the types of applications and hearing about the services which are available to help tackle the problems.
We will be accompanied by suppliers of some of these tools and services who will between them cover the different stages of collection, processing and review.
There are practice development opportunities here as well as mitigation of risk. This is a good opportunity to get up to date in an area which is growing in importance.
The 451 Group, Rob Robinson of Applied Discovery, and I each have different roles in the business of spreading information about e-Discovery and e-Disclosure. The 451 Group is a technology analyst company whose business involves in-depth knowledge of enterprise IT underpinned by research into the industry and its players. Rob Robinson remains, as he has been seemingly for ever, the fastest gun in the West (Austin, Texas in fact) at picking up information, news and views across the industry and serving it up in easily digestible form, not least in a weekly list of articles distributed by e-mail and by widely-read resources such as the Posse List’s Electronic Discovery Reading Room. Mine is the easiest role – I have the luxury of writing, in my own time and without regard to journalistic deadlines, about only those things which interest me and which I hope will interest others.
The ideal model therefore, from my point of view, is that The 451 Group does some research and analysis, Rob Robinson and Applied Discovery tip me off about it, and I write about it, adding such comment as seems appropriate, particularly if there is a UK angle to bring in. Read the rest of this entry »
Sharon Shoesmith has failed in her application for judicial review against Haringey, Ofsted and The Secretary of State, Ed Balls. This, as the judge made clear, was to do with the narrow ambit of the judicial review process and says nothing about (or, at least, is not determinative of) the unfair dismissal proceedings which have been stayed pending the disposal of the judicial review. The judgment, a summary of it, and the judge’s remarks are on the Judiciary website. The judge said (in paragraph 546)
The point simply is this: the court’s power to intervene in respect of an administrative decision exists to ensure that it is not made unjustly in the sense that, when a fair process is required, the adoption of an unfair process will operate to undo the decision. For the reasons I have given I have not been persuaded that the grounds for intervention have been made out as against Ofsted and the Secretary of State. Whether Haringey was unfair in the way it dealt with the Claimant’s dismissal (not merely procedurally, but substantively) will, if she pursues the case, be decided ultimately by the Employment Tribunal.
The judge confessed to a “lurking sense of unease” in reaching his decision, partly because of an apparent gap between the statutory powers of a minister in such circumstances and the contractual relationship between employer and employee, and partly because of the particular circumstances of the case. He said as to the latter (in paragraph 543):
If there had been a sustainable case that the Ofsted report had been ‘made to order’ at the instance of, or on behalf of, the Secretary of State and that the results of the inspection were thus either a foregone conclusion or had been manipulated to give grounds for his decision, the outcome of this case would have been different. Suggestions of such dark processes have been made during the proceedings. Ofsted’s inept handling of its obligation of candour during the case may at the time it was revealed have appeared to provide a key to an otherwise locked door. When the further disclosure took place, the suggestions were renewed with greater vigour. However, on the evidence as deployed before me, those suggestions could not be translated into anything of greater substance whatever suspicions, on one interpretation of the material, might have been engendered.
Two appendices relate to the duty of candour point. I do not intend to summarise them in a hurry, but the short point is that the judge intends to pursue certain aspects of the conduct of disclosure with the Treasury Solicitor. Mention is made twice (once in the judgment itself and once in the second appendix) to the Al-Sweady case which I have written about (see Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public). It appears that a note has been circulated internally by the Treasury Solicitor as a result of Al-Sweady to remind people about the duty of candour – I guess there may have been another one following Master Whitaker’s judgment in Goodale v The Ministry of Justice (see Goodale v MoJ – a template judgment for active management of eDisclosure). Every law firm responsible for litigation disclosure ought to be producing something similar, and for its clients as well as its own staff.
I suspect that there will be more than article to come about this. I will pull together the points of general application when I have had the chance to read, rather than merely skim, the judgment. Meanwhile, as I have suggested before, keep a copy of the standard form of disclosure statement pinned above the desk and give it a read before you embark on a disclosure exercise, not just as your pen (or your client’s pen) is poised to sign it. It is too late to reflect at that point on what is meant by the duty of candour.
Mr Justice Foskett’s judgment in Sharon Shoesmith’s judicial review application against Haringey, Ofsted and Ed Balls is due to be published at 12.00 today. It will be accompanied by some judicial observations. My own interest, of course, lies not so much in the outcome of the case itself as in the disclosure aspects.
Amongst my predictions for the year was that 2010 will see disclosure failures getting personal, with lawyers and their clients being named and shamed. It is not, I have to say, my weapon of choice in this battle – there are so many positive business reasons for getting the mechanics of disclosure right that it seems a pity to have to emphasise the costs and reputational risks of getting it wrong. The rules run to about five easily-understood pages; the technology is there to be used where it would help; the clients want their litigation run cost-effectively. All we see is people screwing it up in ways which results in someone – often the taxpayer – picking up huge bills for remedying easily-avoided defects. There are marketing opportunities here which make a much more positive message than mere fear of failure.
Wearing my marketing hat, the Conservative Party campaign leaves one open-mouthed with amazement, whatever one’s political affiliations. We will be mining it for decades as an example of a product beginning with a strong market position and throwing it away day by day. It is not the off-the-cuff stuff which is letting them down – anyone can trip in the unremitting light of media exposure – but the lack of the clear, coherent messages which the times and the “market” require. Sure, any unequivocal message will alienate someone – one man’s reduction in the burden of the state is another man’s job loss – but there are votes to be won simply for offering clear unequivocal policies without compromising the message by trying to please everyone.
There was a nice comment last night on the way Gordon Brown retreats behind a spout of numbers when under pressure . Someone referred to them as “tractor stats”, invoking in two words the the whole Stalinist era of Five Year Plans and state-led methods of production. Those of you with products to sell may care to look at your printed material and consider how much of it consists of tractor stats as opposed to clear identification of things which actually mean something to the lawyer with a job to do.