Could an English court require lawyers to make a video about their disclosure obligations?

August 12, 2014

I recently wrote an article about the Court of Appeal’s decision in Denton which I called Letting the punishment fits the crime as Mitchell gives way to Denton. As the title implies, I suggested that Denton took us some of the way back to Lord Justice Jackson’s intentions and that the courts were now better able to exert discipline in a way which had regard to Jackson’s original intentions. I cited Gilbert & Sullivan’s Mikado as a model for the idea that the punishment should fit the crime.

A US judge has taken this one step further. Faced by a party whose conduct of eDiscovery involved taking every point and other activities which lost sight of the “just, speedy and inexpensive” requirement in Rule 1 of the Federal Rules of Civil Procedure, the judge focused on the value of educating the delinquent lawyers. He required them to make a video explaining the proper way to manage eDiscovery. The story is well told in this article from Above the Law which annexes the judge’s order and sets out the more quotable passages in the ruling.

One is a generalised complaint about the conduct of eDiscovery which is worth repeating. It reads:

Discovery — a process intended to facilitate the free flow of information between parties — is now too often mired in obstructionism. Today’s “litigators” are quick to dispute discovery requests, slow to produce information, and all-too-eager to object at every stage of the process. They often object using boilerplate language containing every objection imaginable, despite the fact that courts have resoundingly disapproved of such boilerplate objections. Some litigators do this to grandstand for their client, to intentionally obstruct the flow of clearly discoverable information, to try and win a war of attrition, or to intimidate and harass the opposing party. Others do it simply because it’s how they were taught…. Whatever the reason, obstructionist discovery conduct is born of a warped view of zealous advocacy, often formed by insecurities and fear of the truth. This conduct fuels the astronomically costly litigation industry at the expense of “the just, speedy, and inexpensive determination of every action and proceeding.” Read the rest of this entry »


Letting the punishment fit the crime as Mitchell gives way to Denton

July 21, 2014

What was over in moments, added a word to the law’s dictionary, led to countless spin-off cases and applications, cost millions in legal fees, ended reputations and, having left its mark, disappeared from the scene?

There is are curious parallels between “Plebgate” and the judgment called “Mitchell”, either of which could be described in this way. The original incident, the only event with a “-gate” suffix which actually involved a gate, was over in seconds; Andrew Mitchell lost his Ministerial job, one policeman went to prison, others were disciplined and a rotten branch of policing was given a long-overdue shaking; at least two libel cases ensued and the whole consequent series of investigations and civil and criminal claims will keep many lawyers in claret for long after we have forgotten both Plebgate and Andrew Mitchell.

It took Lord Dyson a few minutes rather than seconds to deliver the Court of Appeal judgment known as “Mitchell”, and its consequences have been similar to Plebgate. Millions of pounds have been spent since, in complying with the regime which the judgment spawned, in arguments and applications resulting from it, and in bringing claims against lawyers whose every minor default became a cause of dispute. It is suggested that “Mitchell” was the last straw for some solicitors, already hard-pressed to break even. Court lists were flooded with Mitchell-related applications. A spirt of co-operation, or at least of give-and-take, between solicitors, which had always oiled the procedural wheels, disappeared in a new climate in which lawyers felt it their duty to take every point in case they could “Mitchell” their opponents, and cases which could have proceeded toward trial were delayed as the “Mitchell” point was contested; one involved a delay of 46 minutes in serving a list of documents. Read the rest of this entry »


Justice takes a bashing but litigation work goes on

April 2, 2014

To say, as I did in a recent article, that that “civil justice in the UK has plunged off a cliff” is not the same as saying that civil disputes are in decline. Litigation lawyers, at least at the mid- to high level, seem to be busy enough, as do most of the London-based eDisclosure providers. The Jackson Reforms, now a year old, have positively generated work for some, although much of the focus has been more on procedural matters than on evidence and issues. Part of this, conveniently labelled “Mitchell”, has been negative, the opposite of the “justice” which the overriding objective requires; part of it, and particularly the eDisclosure aspects, reflect the attention which the rules now require on the sources, the methods and the costs of disclosure. One can deprecate the Mitchell aspects whilst thinking it right that parties are being required to pay early attention to the evidence and to the prospective costs.

Whilst in the US recently, on a tour which embraced both eDiscovery events and a short holiday, I wrote an angry article (“blistering” was amongst the comments I received) on the state of British civil justice. If that seems an odd way to spend a holiday, well, the times are odd and it annoyed me. Better out than in as they say, so I wrote to get it off my chest. The article was headed The Jackson consultation responses pull no punches but Grayling and the MoJ will ignore them.

The article had three targets – a Lord Chancellor who seems ignorant of the basic concepts of justice, a Ministry of Justice staffed by people whom I described as “standard issue overpaid time-servers and… academics who have failed to hack it in the strenuous world of university life”, and senior judges whose understanding of the practicalities of business life is defined by their lifetime experience of working for very big firms, on very big cases, for very rich clients.

I referred to one or two of the responses to the Civil Justice Council’s consultation, mainly to show that my observations were derived from the daily experience of those who have to deal with the consequences of these things. I was at pains to draw attention to differences (identified in some responses) between Lord Justice Jackson’s original recommendations and the position in which we now find ourselves. Quite apart from the fact that he had nothing to do with (for example) the reduction in legal aid, Lord Justice Jackson specifically recommended investment in court systems; whilst he was keen to encourage compliance with the rules, it was no part of his plan that we should have the climate of fear and uncertainty which derives from Mitchell. Read the rest of this entry »


Kennedys seminar on 12th March in Birmingham – Surviving Jackson: one year on

March 6, 2014

Solicitors Kennedy’s gave a seminar this week with the title Surviving Jackson. Many of the points made in it were live-tweeted and the tweets have been collected here by academic and lawyer John Bates @MrJohnBates. They provoke thought.

Kennedys is running a seminar with the same title in Birmingham on 12 March from 2:00pm to 4:00pm. The speakers are Edward Pepperall QC who is a member of the Civil Procedure Rule Committee and Kerry Underwood who is perhaps the most vocal critic of the Jackson reforms. There is more information about this event here.

Knowing the rules is a good start, something which seems to have passed many solicitors by (read some of the judgments if you think I am being overly disparaging here). Anyone might be forgiven, however, for missing some of the implications of the Mitchell judgment and its confusing aftermath. This seminar seems a very good opportunity to try and keep up.

If you are affected by this and are not following barrister Gordon Exall’s Civil Litigation Brief then you should be.

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Mitchell and relief from sanctions under CPR 3.9 Part 2 – is Mitchell the last word?

January 6, 2014

This is the second of (at least) three sequential posts about different aspects of the Court of Appeal’s decision in Mitchell v NGN. The first was called Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy? and looked at the context in which this judgment is set. This one looks at the problems which the judgment gives and at some of the ideas which have been canvassed to mitigate its effect, not least as a result of some other judgments.

The preceding section is really aimed at those who seek a simple answer to a multi-layered and complex set of problems. Blaming Jackson lets us off having to think about the real issues here, as do easy blasts about right-wing conspiracies (and in case you missed the point, my references in that post to Blair, Brown and Balls were a deliberate descent into the sandpit of easy political name-calling. I mean every word, but it does not help us fix the problem in hand, which is the decision in Mitchell).

The problem, and one which Mitchell exacerbates (deliberately, so far as one can tell), is that there now appears no gap between damaging incompetence and the kind of oversight and inadvertence which any of us might commit, nor is any relevant distinction drawn between very big cases in specialist London courts and small ones in provincial county courts. Quite apart from any differences of scale, there is a reason why some judges get elevated to the Court of Appeal and others do not. Read the rest of this entry »


Mitchell and relief from sanctions under CPR 3.9 Part 1 – cock-up or conspiracy?

January 3, 2014

One of the many advantages of not being a journalist is that I do not feel the need to react immediately when major developments occur. The news in November that the Court of Appeal, led by the Master of the Rolls, Lord Dyson, had upheld Master McCloud’s judgment in Andrew Mitchell v MGN prompted a flood of articles and comment ranging from the apocalyptic and apoplectic at one extreme to “What did you expect?” at the other.

If you missed it and want to hurry on to something else, the judgment’s narrow effect is that the failure by Mitchell’s solicitors to file a budget in time leaves him entitled to recover only his court fees if he wins; the wider effect, or so it seems, is affirmation of a policy requiring that any procedural defect except the most trivial is likely to result in severe sanctions which, actually or in practice, drive the defaulting party out of the court.

You might like to pause here and go and check the time limits on all your cases. As a rough guide, knock a day off every deadline just in case you miscalculated, treat every order as a peremptory order (see Gordon Exall’s Civil Litigation Brief on this as on anything to do with sanctions and deadlines), check whether the order says “exchange” or “serve on each other”, and make sure you don’t have square brackets in the wrong place in any document. Oh, and check your professional negligence policy. All done? Welcome back. Read the rest of this entry »


The end of an era: law firms, eDiscovery, Susskind, the year 1599, dinosaurs, and a yellow scooter

February 6, 2013

Sometimes one gets the sense of being tangibly at the end of an era – the door is closing and, perhaps, others are opening. I felt like that, quite suddenly, on my way to LegalTech in New York a few days ago as a result of the conjunction of three different sources. One of them involves the year 1599, the end of chivalry and the rise of a new merchant class, and another features dinosaurs and a yellow scooter. Those who have been with me a while are used to apparently random elements coming together in the last reel to reach an eDiscovery conclusion.

Richard Susskind’s Tomorrow’s Lawyers

The door which is closing will leave behind it the traditional law firm structure of partners selling at hourly rates the services of themselves and legions of  associates. There is nothing new in this prediction – Professor Richard Susskind has been making it for years, and one of my sources is his latest book, Tomorrow’s Lawyers.  The book is addressed to those starting out in the legal profession and to junior partners, and is subtitled An Introduction to Your Future. It restates views expressed in Susskind’s earlier works, especially The End of Lawyers?, sketches out the new legal landscape as he expects it to be, and (most interestingly) looks at the prospects for younger lawyers and at the skills they will need for the new legal landscape.

TomorrowsLawyersThe points are all familiar ones – Susskind is cheerfully unrepentant about saying the same things for years, not least because time has invariably proved him right. The most specific predictions – about the use of e-mail and websites, and about the use of technology to standardise and commoditise the delivery of services – were once derided but are now part of life. The broader predictions, effectively signalling the end of the traditional law firm model, have always seemed reliable but distant, something on the horizon which lawyers might hope not to reach before retirement. My sense on finishing Tomorrow’s Lawyers is that we can now see the waves crashing on the rocks. We have reached the horizon.

More specifically for litigation departments, the “cottage industry” approach which Susskind derides will die, and probably in 2013. eDiscovery / eDisclosure, the major cost component in many cases, is still about finding the evidence, but has become an exercise in search, in project management, in statistics, in budgets and metrics. The point is not so much that lawyers are unused to this, but that technology, and those who know how to use it, can do it better, more cheaply and to a higher quality – you will perhaps recognise a well-known Susskind paragraph in this. The quality and accuracy of such tools increases yearly; just as significantly, the rise of managed document review providers offers the transparency and predictability of time and cost which (not coincidentally) is the aim of both courts and clients. It is not that lawyers cannot compete with these new business models but that that few of them seem willing to try.

I will come back to that in a moment.  What does the year 1599 have to do with it? Read the rest of this entry »


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