Indefensible?

If you can tear yourselves away for a moment from the grim headlines in the newspapers of tumbling stock markets and idiots rioting in the streets, you will know that I believe one of the major barriers to engaging lawyers in the use of appropriate technology is the widespread use of “technospeak.”

It seems obvious to me that if you are going to try and engage anyone in a process which is unfamiliar to them you need at the outset to set their minds at rest and you will not succeed in doing that if you use language with which they cannot identify. At best their eyes glaze over and at worst they run a mile. What makes it worse in the world of e-disclosure/discovery is that they cannot run far because considering whether to use technology is now firmly centre stage in the litigation process. While they may not be able to run far, they will almost certainly not run back to you if you get it wrong to begin with and they will end up with one of the many other organisations who profess to offer similar services. Last time I put the term “e-disclosure” into Google I came up with 95 million hits, so how on earth does a lawyer or anyone else looking for help decide which one to go for?

To be fair to the technology industry, there are a number of complicated and clever technologies on the market and many of them, although different in their way, in reality do much the same thing. So how do you choose?

I have been following the debate about predictive coding with interest. Chris Dale (@chrisdaleoxfordhas written a summary of the present state of the debate from his vantage point of sunny Carmel on California and you can read the article here: Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat [e-Disclosure Information Project blog, 2nd Aug, 2011]

One of his points resonated with me particularly. I have noticed in recent presentations that lawyers often now ask about the defensibility of the technology being used. I am not aware of any decision in any jurisdiction where a court has been asked to rule whether a particular piece of technology or process is valid/legal/appropriate, still less have I seen a judgment where the judge has said that a particular process or technology is valid etc.

This is not surprising because most judges are not technical experts themselves and even if they are technically astute the point of their judgments is not likely to bear on the efficacy or otherwise of a particular process or technology. The closest it may come is to consider whether the procedure adopted by a party and its lawyers was appropriate, proportionate or cost effective in the circumstances of the particular case; and that does not get us very far down the road of endorsing the use of a particular piece of technology.

I usually content myself with answering the question about defensibility by pointing out that the CPR now requires a consideration of the use of technology, there has been no case of which I am aware where a court has determined the issues based on the use or not of a particular process and if you want something a little more concrete, you have Senior Master Whitaker in his judgment in Goodale v Ministry of Justice saying:

Indeed, when it comes to review, I am aware of software that will effectively score each document as to its likely relevance and which will enable a prioritisation of categories within the entire document set.

Lawyers should take heart. It is really not that complicated, as many have discovered. Indeed, I have recently been involved in a case which dramatically illustrates the effective use of a variety of pieces of technology with tremendous results and I am hoping to persuade the client to allow me to use it as a case study to share with you all..

Remember the overriding objective of the CPR!

  1. These Rules are a new procedural code with the overriding objective of enabling the court to deal with cases justly.
  2. Dealing with a case justly includes, so far as is practicable –
    1. ensuring that the parties are on an equal footing;
    2. saving expense;
    3. dealing with the case in ways which are proportionate –
      • to the amount of money involved;
      • to the importance of the case;
      • to the complexity of the issues; and
      • to the financial position of each party;
    4. ensuring that it is dealt with expeditiously and fairly; and
    5. allotting to it an appropriate share of the court’s resources, while taking into account the need to allot resources to other cases.

If you remember that when you approach a new piece of litigation or the process of collection and review as well as the process of disclosure you will not go far wrong. Add to that a decent expert provider to help and you will not be troubled about considerations of “technospeak” nor defensibility.