Hasten slowly

I love oxymorons.

Woodbine used to advertise their cigarettes as the “great, little cigarette” which conjured up precisely the size of the cigarette (they were smaller than the standard size) and the great taste and value (whatever takes your fancy!) For Latin lovers, hasten slowly is the English translation of Festina Lente. An example might be the tortoise and the hare, one of Aesop’s Fables, where a hare mocks a tortoise for being slow and challenges him to a race. Super confident of his ability to win the race, the hare sets off at speed but stops for a rest on the way. The day is so warm and the hare has run so fast that he falls asleep. When he wakes up, he finds that the tortoise has finished the race before him, despite moving so slowly.

The phrase has come to mean that if you have a task to perform or a destination to reach you will do better if you set about the task or out on the journey in a measured and structured way. If you have ever walked in a hurry along a crowded street where everyone else seems to have nothing better to do but meander along in front of you, you will know what I mean. The faster you go, the more obstacles appear in front of you.

I wonder if that is the position we have reached with predictive coding. Not in the sense that users of the technology are super fast or particularly slow or wandering in between but because I detected a note of caution in the air around the halls at Legal Tech (LTNY) at the end of January.

If LTNY2012 proved to be the time and place when predictive coding or Technology/Computer Assisted Review came of age, I thought that LTNY 2013 would surely see last year’s stars soaring out of sight. After all, we have now had several years of experience of the technology and the courts in the US have been busy even if the courts on this side of the Atlantic less so. Commentators have had a field day!

It came as something of a surprise to me, therefore, that instead of triumphalism there was an air of guarded optimism around the halls at the Hilton on 6th Avenue fused with a feeling that things might just be going forward too fast and that may be, just may be, we all needed to take a big breath and not get carried away.

This does not mean that I or anyone else I heard or spoke to thinks that predictive coding is anything other than a useful tool whose time has come or a technology that lawyers will come to know and love but I detected a feeling that there were still aspects of the application of the technology which were causing concern and that even among the judges not everyone was happy with the speed of apparently universal uptake.

Because it is LTNY, examples of what I mean are necessarily American, but there have been enough straws in the wind in the Senior Courts of England and Wales  in the form of judicial encouragement and the new rules (which have at last been published) due to come into effect in a little over six weeks, to suggest that what happens over there will soon happen over here too. At the very least something similar will happen.

So what do I mean by this air of caution detected at LTNY? There are a number of examples I could give but for the sake of brevity I will restrict myself a few which seem to be the most important as follows:

  • There is little agreement about when and how the technology should be used. This causes uncertainty for lawyers and their clients as it must mean that more cases will be tested in court before there can be complete clarity or confidence. Every case is necessarily different and merits its own assessment of the practicalities of using a particular technology.
  • Judges themselves appear to be drawing back from all out endorsement. We seem to have moved on from the huge publicity caused by cases such as da Silva Moore v Publicis Groupe, Kleen Products LLC v Packaging Corp. of America and Global Aerospace, all reported in 2012. Judge Francis, Magistrate Judge for the Southern District of New York rejects the idea of judges leading the way because he feels that there is a risk of judges merely doing something because they can. In any case most judges lack the technical expertise to micro manage EDD.
  • Judge Shira Scheindlin of Zubulake fame(an early EDD case) recalled part of the Hippocratic oath in saying “First, do no harm.”
  • Issues of data protection and data privacy have moved to the forefront of the debate. There is nothing wrong with that of course and some countries and indeed some people jealously guard their personal data for a variety of reasons not least if they have an experience or history of that data being used in an arbitrary way by the authorities. One only has to think of some of the unspeakable horrors perpetrated by the Nazis in Europe in the last century, immediately to sympathise with those for whom the protection of personal data is an article of faith.

In my view, predictive coding is a technology whose time has come and, whether we as lawyers like it or not, we will have to get used to the idea that sometimes it is not proportionate to review all the documents in a case and it is no longer appropriate or proportionate to employ teams of paralegals to review volumes of paper.

It is of course absolutely right that careful thought should be given to the adoption of predictive coding in a particular case or indeed the use of any particular technology. The new Civil Procedure (Amendment) Rules 2013 (just published) incorporate the words “at proportionate cost” into the definition of the overriding objective, and this alone should give litigators pause for thought when considering with their clients and experts the strategy to be adopted in each case.

There are many other changes in the rules to consider now (and please don’t wait until April to do so) but that one change alone coupled with the requirement to file a budget as required by the rules or as the court may direct (a party’s failure to do so will be treated as if they had filed a budget limited only to the court fees incurred) should cause responsible lawyers to reflect early on how they are going to manage the case and their responsibility to comply with the relevant rules and regulations.

In conclusion, it appears to me that there is nothing wrong with the air of caution expressed at LTNY. Quite the opposite! It would be wholly inappropriate to rush ahead with a case without giving due thought to some or all of the issues mentioned above and that is as true in England and Wales as it is in the USA or indeed any other common law jurisdiction.

Hasten slowly may smack of undue caution or insistence on old fashioned methods of conducting cases but I guarantee that those who find themselves on the wrong end of a final or interlocutory judgment will rue the day they did not remember the tortoise and the hare.