The International Association of Women Judges London Conference 2012

The International Association of Women Judges (IAWJ) is a non-profit, non-governmental organization of more than 4,000 members at all judicial levels in more than 102 nations. Formed in 1991, the IAWJ has united women judges from diverse legal-judicial systems who share a commitment to equal justice and the rule of law. Lady Hale, a Justice of the Supreme Court of the United Kingdom is the current President (I wrote about Lady Hale’s fine speech on access to justice in this article  )

By happy chance, Lady Hale’s tenure coincides with the successful bid by the UK Association to host the IAWJ conference in London next year. The dates are 2 to 5 May and the conference has its own website here.

The IAWJ conference is looking for sponsors for this significant event and is offering exhibition opportunities and other promotional involvement. If you are interested in knowing more about this, please contact Fiona Whitehead on 0870 143 6978 or by email at fiona.whitehead@tfigroup.com.

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Drowning in Regulation – a day at the Corporate Counsel Europe Forum

Despite its title, this is “about” Legal Week’s Corporate Counsel Europe Forum, held at Luton Hoo, last week, in only the loosest sense, consisting more of random reflections derived from listening to first-rate speakers with in-house responsibility for legal and compliance matters at an extremely good conference dedicated to them. More focused posts, about the information management and the social media sessions, will follow.

I get to see a lot of places with airports in the course of a year. This year’s destinations include New York, Hong Kong, San Francisco, Singapore, Nashville, Luton, Washington, Dublin, Berlin, Sydney and Paris. “Luton?”, you ask. Well, that is what I thought I heard when George Parapadakis of IBM first asked me to take part in a conference with him.  Luton Airport is full of people rubbing their eyes with shock at the discovery that the final bill for the “budget” ticket to their chosen destination has trebled the web site price, with extras like a seat, use of the lavatories, access to the stairs, baggage fees and credit card charges. In addition, the plane is actually going to land 100 miles away from their resort, in a neighbouring country. Apart from that obvious parallel with lawyers and their bills – inflation by “extras” and divergence from the clients’ objective – it was hard to see why Luton would be hosting a legal conference.

What George had actually said, it transpired, was Luton Hoo, a place whose conference centre alone was grander than most, even without the splendours of the main house. The event was Legal Week’s Corporate Counsel Forum Europe whose entire delegate list, and many of its speakers, were in-house lawyers, many from household-name companies. I got into trouble on Twitter later by describing corporate counsel as the “most important” people in the eDiscovery market. It reflects a rather quaint, old-fashioned view of mine to the effect that the client (patient, pupil, voter, anyone who is the buyer or end-user of products, services or policies) is the one who matters most. It ties in with my repeated stress on the objectives behind everything we do which, in eDiscovery, seem to get lost in the focus on rules and on the miracles of technology. We have to keep asking “what is this for?”

I could attend only the first day of the Forum, something I very much regretted as I drove away leaving the rest sitting down to their gala dinner. I do not have to time to write, nor you to read, everything which was useful, interesting or both, so my summary, split across three posts, is a selective one – some musings on the role of and burdens on general counsel, a few particularly apt quotations, a summary of my own panel and, what was easily the highlight of Day 1, a lively talk about the use of Twitter and other social media. None of that necessarily ranks among the most important outputs from the day, but I have the luxury of choosing my subjects. I will start with an apparent diversion derived from hearing in-house lawyers talk about the things which fill their days.

A diversion: hitting the target whilst missing the point

One of the running ‘jokes’ of New Labour’s time in office was that its obsession with setting and reaching defined targets became more important than any actual benefit to anybody. Education is the most obvious example of an area in which every participant – government, schools, universities, headteachers, pupils, parents, local authorities and the wholly useless OFSTED – had an interest in the achievement of ever better results. The proper way to reach that is to raise the standards and the quality of the teaching. The timescale required for that does not suit politicians, who can claim the same apparent result within an electoral cycle by producing quality yardsticks which are more easily achieved. These appear as checklists, quotas and regulations which owe more to the ease with which they can be measured than to their value in educational terms. If you can tick the right boxes, so the logic goes, you must be doing well. The inevitable result is that everyone involved plays to the checklists. The real objective – a better education for the next generation – gets lost in the form-filling, itself a burden so onerous that it consumes all the available resources.

Moderating a video discussion with Digital Reef: Preparing eDiscovery Data for Review

Whilst I was at ILTA in Nashville in August, I moderated an eDiscovery discussion with Steve Akers, CTO of Digital Reef and Peter Mansmann, CEO of Precise Litigation Technologies. Digital Reef has now edited our discussion down into three short videos and published them on its blog under the heading Preparing eDiscovery Data for Review. The three sections appear under the titles An Introduction, Strategies, and Tools and Techniques.

I used the introduction to draw attention to the gap which so often appears between the objectives – the clients’ objectives and those of the court – and the discovery work done by the lawyers in purported compliance with those objectives. US sanctions cases tend to involve some permutation of breaking the rules, failing to produce documents, and less than open behaviour vis-a-vis opponents and the court. It is no less a failure of duty when they disclose too much – throwing piles of irrelevant materials at opponents is often used as a tactic, but it is more often done, I think, because no one applies their mind to the proper scope of discovery. It is not a binary option – disclose it all or get sanctioned; there is a middle ground.

The same is true in the UK, even if we lack the risks which US-style sanctions bring. The courts in both jurisdictions are coming under pressure to hold down the costs of discovery. The paradox is that those who complain about it – the clients – are the very people who could control it, partly by the way they manage information on their own systems, and partly by negativing their lawyers’ assumption that they want them to fight for them in every last ditch. The cost of procedural infighting, when added to a lack of knowledge about what are, after all, the clients’ own documents, can add significantly to litigation costs which do not bear at all on the issues, the merits or the substantive arguments.

The first of the three videos is largely taken up with my observations of this kind. In Parts 2 and 3 I pick the brains of two very experienced players in eDiscovery and invite them to suggest how we might reduce costs and focus on the things which matter.

In what may appear to be an unrelated episode, I recently recorded a webinar for Virtual LegalTech with Bill Belt and Daryl Shetterly of LeClairRyan and with Heather Bryden of Capital One Bank. Its title was Unbundling Litigation: Selecting and Using eDiscovery Counsel, and we focused on the benefits of using specialist lawyers to handle eDiscovery alongside the merits counsel.

The connection is that I am taking part in a panel session on Day 1 of the Masters Conference in Washington along with Steve Akers and Bill Belt with Shawnna Childress of Navigant as moderator. The title is Early Case Assessment (is it working?) and I think it likely that some of the themes from the earlier events will recur in the ECA panel.

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Epiq Systems webinar: the Challenges of Cross-Border Regulatory Investigations on 21 September

One keeps hearing of “Bribery Act fatigue”, with the implication that companies and their lawyers either think that the subject was oversold or that the absence of a headline prosecution implies that we can all relax. The sense of urgency has perhaps been diminished also by the early focus on corporate entertainment, which gave rise to much exaggerated fear before apparently dropping off the agenda, and by the government’s public mishandling of the SFO’s future.

All this may have had the effect of diluting a proper sense of urgency amongst companies and their lawyers. The Bribery Act has been in effect only since 1 July and the noises coming from the SFO give warning that it is very much open for business on this subject.

One serious implication is the inter-relation between the UK Bribery Act and the US Foreign Corrupt Practices Act (FCPA). Many companies will be subject to both jurisdictions and may face investigations which cross borders. This is the headline subject of a webinar tomorrow, Wednesday 21st September at 9:30am Pacific time / 5:30pm BST which is entitled The Challenges of Cross-Border Regulatory Investigations and which covers also the key differences between ESI management for litigation and an investigation, and how to prepare for and respond to an investigation.

The webinar is given by Deborah Blaxell, Legal Consultant, Epiq Systems, Emma O’Kane, Senior Associate, Eversheds LLP and Mark Surguy, Partner, Eversheds LLP and is co-hosted by the Masters Conference and EMC.  These are all topics on which both Epiq and Eversheds speak with the authority of experience, and a webinar is a convenient way of keeping up to date with developments. Registration is here.

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