The spate of blog posts last week-end was a clearing of the decks in the knowledge that I would not have much writing time for a bit. The Edinburgh trip which is the subject of this post is being followed by some in-house sessions for lawyers, and when there is a choice between talking to people and writing, the talking comes first. I also had to take every last stick of furniture and cabling, right down to the router, out of my office so that it could be decorated and, after 11 years in the same room, that takes some reassembly.
I was in Edinburgh on Tuesday, speaking to the Scottish Society for Computers & Law with Ian Manning of Raposa Consulting and Nigel Murray of Trilantic. Trilantic organised it, and kindly invited me to take part. The law technology commentator Charles Christian of the Orange Rag has rather unfairly labeled me as the Ancient Mariner of air travel on the basis that I no sooner book a flight than either the prices plummet or the airline announces a strike. This is the first time, however, that an airline has actually ceased trading between my booking the ticket and take-off. Shortly after I was invited to go to Edinburgh, a small airline announced the opening of a route from Oxford to Edinburgh, and the price, the convenience, and the wish to support a local venture caused the suspension of my usual caution and my loyalty to British Airways. If someone ever offers to fly you from just up the road to where you need to be for £49 each way, then the offer is almost certainly too good to be true – and so it proved. The airline suspended flying in days, and I ended up as usual in my branch office, the BA Executive Lounge at Heathrow’s Terminal 5. Don’t even ask about the return journey.
In between, however, it was a good trip. Ian Manning and I went to see one law firm which gave us a feel for the climate and the context – you can read all you like about a jurisdiction, but you have to go there to begin to understand those things which are the same and those things which are different.
Our host was Iain G Mitchell QC, Chairman of the Scottish SCL, who had arranged for the event to take place in the Reading Room of the Advocates Library in Parliament House (the room at the left end of this photograph). We did not need to be told that this was a privilege – it was the most severely august-looking place in which I have spoken.
My general theme, common to most of my talks at the moment, was that whilst the rules and formal procedures are important, they are less so than the outcomes. This is by no means an encouragement to play fast and loose with the rules – far from it – but it brings the suggestion that the rules in most jurisdictions provide a framework within which the parties and the court can seek out the right course. “Right”, in this context, depends on finding the evidence from electronic sources which a fact-finding judge will need (which is, of course, the same material as the parties and their lawyers need for their own decision-making). The scope of the formal duty to disclose varies from jurisdiction to jurisdiction, but you cannot simply ignore electronic evidence just because the court rules have not caught up with it.
It was some comfort, I think, to some of those present to learn that the rules and practice in England & Wales still, for the most part, read and operate as if the documents had been typed on paper and posted. Although we do in fact have a practice direction which covers electronic disclosure, few lawyers and fewer judges know of its existence. My message in London is that you should not wait for the rules and the courts to wake up to the realities of commercial life, but should find out how to access and make proportionate use of electronic information for your own reasons and those of your clients. The suggestion is therefore one which transcends the differences between the formal regimes of procedural rules, and applies equally in Edinburgh as in London or anywhere else. The starting point is knowing enough about the technological solutions which are available to solve the problems which technology has created, and to be equipped to judge when it is appropriate to use them.
Ian Manning and Raposa Consulting are expert at the first stage, finding out what exists, helping to arrive at decisions as to what matters, getting hold of it for the lawyers, and giving evidence in court about it. Although the mechanics of this appear to involve technological black arts, there is potentially much more to this role than mere collection. Someone who spends his life doing this learns to notice things which might otherwise get missed, either because they have been overlooked (those boxes of old backup tapes or the redundant servers relating to the period when the seeds of the dispute were sown) or because they are things which someone has an interest in concealing. Despite the technology layer, much of this is old-fashioned evidence-gathering about fundamental assertions such as whether a communication was or was not sent or received on the day alleged. Ian made it clear that there was much more to be found from a computer than the files which appear in its directories – documents written but never saved, the connection of an external device such as a BlackBerry, and web pages viewed on the screen, are all capable of identification. The aim here is not to go into over-kill mode for every case, but to know enough to judge what might be needed – and to have some idea of the likely cost before blandly asserting that it is all too expensive.
Nigel Murray of Trilantic took the story on from there with a summary of the software and services which exist to help manage electronic documents. Again, the message is not that all (or, necessarily, any) of this is needed for every case. In any event, whether something is “needed” is not really the point, just as the presence or absence of court rules about electronic documents is not really the point. The evidence needed to bring or defend a case lies in documents, 90% of which are created electronically and most of which are never printed. Electronic discovery is not just a way of automating paper handling, but a way of searching, filtering and refining document populations in ways which are not possible with paper without a vast amount of expensive human input. The lawyers should not be driven merely by what the rules require, but by how they can most efficiently arrive at the outcome which their clients want. Nigel talked of some of the solutions.
I have a feeling that there has been some fairly heavy-footed selling forays to Edinburgh which have somehow skipped the elements of motivation and outcome and gone straight to the wonders of technology and its cost. I was glad of the chance to talk about the context. There is no point, however, in talking about problems and opportunities without also making it clear that there are solutions, and it is for this reason that I welcome opportunities to talk alongside those who offer such solutions. This is in fact similar to the way lawyers market their services to their potential clients – they describe the issues which the client may face and outline possible ways of dealing with them. It would all be a bit pointless if they were not also in a position to follow that up by being able to do the work if asked. Those who offer the services are best placed to describe them.
If that provides one set of reasons for wanting to go back to Edinburgh, the next day offered yet more. For the first time since I took up globe-trotting, my wife was free to come with me, and we made the most of a fine day. I have only been to Edinburgh twice, once as a student for the Edinburgh Fringe, and once just before we were married in the days when you could put the car on the train in London and drive away from Waverley Station the following morning (this wonderful facility was abandoned in 1995).
If we spent most of the time in the shops, that is because it is a rare treat to have the opportunity — the crass ignorance of Oxford City Council and Oxfordshire County Council have combined to ensure that high rents, incompetent civic planning and transport stupidity have driven out both the Oxford shops and the people who might visit them. Edinburgh has everything one could want in a small compass, from the classier national chains to quirky little one-off shops.
Perhaps Edinburgh’s urban planners and highways officials are not cast in the same mould as ours in Oxford; perhaps Edinburgh’s size and its status as a capital has allowed it better to survive the bureaucratic indifference, ignorance and incompetence which is the norm in local government.
You did not ask about the return journey but I will tell you anyway. Ten minutes into the flight, they turned round and took us back to Edinburgh for reasons which were not explained. They found some volunteers to stay behind, and then moved the rest of us into another plane which had been held up for that purpose. I cannot quite picture what all that involves – taking out all the luggage, separating the bags of those who were staying from those who were going on, repacking the second aircraft, redoing all the paperwork to record who was on the second plane, all whilst keeping 130 tired and hungry people reasonably content. In this week when the cabin staff have been brought out on strike, largely to fulfil the personal ambitions of the two warring leaders of their union, Unite, it is good to be able to record how well the crew did all this.
There is strand of connection here between the disparate elements in this post. The dull little plodders who work for local authorities and other public sector employers are immune from recession. Salaries and pensions have kept on rising whilst real people tightened their belts, and whatever else gets chopped from public service budgets, it is not all those vacuous people doing meaningless tasks in council offices. There is a mutual dependence here – only Labour offers continued job-security to all these people, and Labour can expect their votes in return. BA fights for survival in a fiercely competitive market and none of its staff will have jobs if the airline goes under. The union leaders can ignore that; their own jobs are safe, come what may, and it has the government in its pocket – 25% of New Labour’s funding comes from Unite, which explains the government’s muted reaction to the strike. Like public servants, the union leaders can ignore commercial considerations such as the millions in fares being lost to other airlines.
Lawyers do not have any of that. Their job security depends on winning and keeping clients, and that in turn depends on being seen to do the job efficiently. The driver should not be the courts’ rules but the brute fact that the documentary evidence lies in electronic form and is most easily found electronically. Those who work this way south of the border do not do so primarily because that is the courts’ expectation but because they can thereby deliver a better service to their clients.
Nor is this necessarily just a matter of one firm striking out on its own. Real wins come when the better firms (not necessarily just the biggest) learn to work together on the document management, however opposed they are on the issues and however fiercely they may fight to win the clients. The LiST Group helped achieve that amongst the bigger London firms and there is a real prospect that we can get this to happen in Birmingham, where a judge-led initiative aims to encourage work into the city from other places, including London. Why should not Edinburgh do the same?