Many people think that he was a manipulative and unprincipled devil, that he wrongfully inherited the throne and on the way murdered the Princes in the Tower or at the very least arranged for their disposal. As the only then living legitimate sons of King Edward IV and his Queen, Elizabeth Woodville, they certainly stood between him and the throne in 1483 and the elder of the two, Prince Edward, was proclaimed King as Edward V on his father’s death but disappeared before his coronation.

Much as I love this controversy this is not the time to delve into the conspiracy theories which abounded then and still reverberate in certain circles to this day (if you are interested see The Richard III Society website).

All I will say is that there are sufficient doubts about Richard’s culpability to ensure that a jury would acquit on the basis that they could not be sure of his guilt beyond all reasonable doubt. Whoever is right, Richard did not enjoy the spoils for long before, bereft of a horse, he succumbed to the forces of Henry Tudor at Bosworth Field on 22nd August, 1485.

One of the joys of any silly season is the errors which others make. Always thankful that it is not me, I am constantly amused by reports of instances where others have fallen foul of the law of unintended consequences. One such example recently came to my attention and concerned the story of a lovelorn swain berating his female companion of one date’s standing for her failure to respond to his efforts to contact her again. Sadly for Mike, Lauren is unlikely to be the girl of his dreams anytime soon after his email to her was made public by her, following what she described as a first “horrific” date. Read the report here: How not to get second date: Banker’s 1,600-word ‘email fail’ goes viral, Metro, 8th December, 2000.

Schadenfreude is a word which only the Germans could have coined. Laughing at the discomfiture of others is a pleasure few of us can resist and I am not talking about the current state of the euro either, but if anyone was ever in any doubt, it is increasingly clear that care must be taken over intemperate emails for exactly the same reason that those of us old enough to remember writing letters always used to place the first draft of angry responses in our bottom drawers overnight and almost always destroyed them unsent the following day. It made us feel better at the time and by not sending out the intemperate early response certainly saved later embarrassment.

The feeling of optimism described in my post Banging on was given a boost at the weekend when I was able to catch up on recent posts by Chris Dale. Always worth reading, there are some which catch the eye and make you chuckle, not least because there is a certain element of Schadenfreude involved when I read that he is yet again stuck on a train or has been irritated by the shortcomings of public servants.

I know he will not mind if I refer with approval (well, at least partially) to the following UK relevance in a Practitioner Guide to eDiscovery from the New York State Bar Association  [e-Disclosure Infomation Project, 7th December, 2011] and to Prosecution lawyers don’t want to take the CPS tablets [e-Disclosure Infomation Project, 12th December, 2011] .

The first post refers to an e-discovery guide produced by the New York State Bar Association which contains practical tips which will be of interest to all serious practitioners of the e-disclosure/discovery art but also a glossary of terms which you can access by clicking on the NYSBA website highlighted in the article. As I have not looked for some time at the glossary that is situated on the right hand side of this blog’s home page, I found the contents of this US glossary instructive. Of course it is US-orientated but none the worse for that as many of the concepts resonate here in this jurisdiction too.

The other post on his Google+ site concerns what Chris calls “staid old Norwich.” Now I do not often dare to disagree with Mr Dale but I draw the line at his description of Norwich as “staid.” The context in which he uses the word proves the contrary in that it concerns a report (that I had heard about locally earlier but which Chris was quick to blog about) that an application has been made to local planners for permission to change the use of a shop in Norwich to a topless barbers. I very much doubt that Chris was concerned about the propriety of a topless barber establishment as he was blogging about the proposed use by Norfolk CPS of tablet computers in the drive towards paperless courts, but I cannot let his description of Norwich as staid pass unchallenged. After all, the only other place where such an establishment exists is in Australia, where the business is said to be brisk, and there are no comparable delights in Chris’s home town, Oxford. One-nil to Norwich City I say.

If Norwich is up, it seems that Norway may be down! According to recent press reports, there is news that the country is running out of butter. It seems that fashionable diets and unproductive dairy cows have contributed to Norwegians eating up all their stock of butter, which is used in great quantities for traditional Norwegian Christmas fare. Let’s hope it doesn’t spread to the UK.

Despite that, I cannot help feeling a warm glow today. While we all know that “Faire words butter noe parsnips” and that we actually have to put into practice some of the fine things all bloggers (including yours truly) have urged upon us through the year, it is a great comfort and a source of no little amusement as we slip towards Christmas on a tide of too many lunches and not many fewer dinners, to know that things can surely only become less gloomy in 2012. Something for which we can be profoundly grateful!

So I will not tell you about my recent train journey to Liverpool courtesy of Sir Richard’s Virgin Pendolino trains where, at a totally unscheduled stop in Crewe which was going to make us late in any event, the train came to a grinding halt and the “train manager” (whatever happened to the guard?) announced a complete loss of power and urged anyone in the disabled loo not to panic when the doors failed to open!

35 minutes later, power was mysteriously restored and we arrived some 45 minutes late into Lime Street to find there were no taxis. I promised not to tell you about all this but instead of being grumpy I found the extra time useful to catch up on some reading and to reflect on the end of 2011.

Will it go out with a bang or a whimper? I have already posted some predictions for 2012 [Old Holloway's Almanack, 1st December, 2011] and the time will doubtless arrive to review 2011 but I find myself curiously optimistic. Just as well I was not in the loo when the train stopped as my mood would have been somewhat different once released.

I have posted items recently dealing with a number of judicial pronouncements both in this country [In the race to modernity..  8th December, 2011] and in the United States [Pandora's Box, 6th December, 2011]. On my powerless train there was just enough light on a windy grey December morning to read two of Lord Justice Jackson’s latest lectures in his implementation programme series on the subjects of avoiding and resolving construction disputes and Third Party Funding or Litigation Funding as it is becoming known.

Jackson obviously hopes that all his reforms will come into effect some time in 2012 and as part of a “Big Bang” of reforms. I am not so sure that will happen but if it does not it will not be because Lord Justice Jackson has not put enough effort into persuading all concerned that these reforms are necessary if we are ever to curb the ever rising costs of litigation.

It appears that Commercial Court Judges have already undertaken e-disclosure training and others will have training provided next year. It is hoped that providers of CPD training for solicitors and counsel will come up with similar training. What is clear is that a far higher degree of knowledge of e-disclosure amongst those appearing at CMCs will be expected in future and that must be a good thing because inappropriate use of technology can often be as bad as no use at all in proper circumstances.

I get the feeling that there are a number of strands coming together to make a meaningful change to the way litigation in general and disclosure in particular are handled in this country. As Jackson says, “…the first case management conference should be a real event at which the court takes hold of the case and gives directions which will focus the factual evidence, the expert evidence and the disclosed documents on the real issues between the parties.”

Amen to that.

Add to that the development and expansion of litigation funding (Investec’s recent entry into the market for example) and the arrival of the Association of Litigation Funders and the Code of Conduct prepared by the committee chaired by Michael Napier QC (Irwin Mitchell’s chief for many years and soon to settle into well-earned retirement?) and I think the future of litigation looks brighter than for some time.

Optimistic? Possibly. Perhaps too many early mince pies and fattening alcoholic drinks, but I sense more joined up thinking here. Someone told me recently that a case of Chateau Lafite 1982 cost about £300 then and is now worth about £25,000! The cost of litigation is still rising but there are moves to stem the rise which may well be successful and technology will play its part particularly as the cost continues to fall.

Lord Justice Jackson may not get his Big Bang in 2012 but I am not betting on a whimper either.

What on earth were they talking about? Does it matter? Well no, not really but it is fun to try and ascribe words to historical personages and even more so to adapt them to and use them in a more modern context.

Whether Victoria did not like the performance of Gilbert and Sullivan’s HMS Pinafore or whether Queen Elizabeth was not amused at Walter Raleigh smoking his new fangled tobacco in her presence, I suspect that historians will never know. I was intrigued to learn, however, that according to Princess Alice, the then last surviving granddaughter of Queen Victoria, in the late 1970s that her grandmother had told her that she, Victoria, had never uttered these words!

Following on somewhat from my previous post on the subject of ancient legislation [Stuffs had strange names and were very expensive in the days of the Tailor of Gloucester, 24th Aug, 2011] I have recently had to consider the provisions of two Victorian pieces of legislation and one which predates the start of Victoria’s reign by a good 11 years!!

It is always a source of amusement and pleasure to me that in 2011 we are still governed by legislation which is (in one case) almost 200 years old and that the legislation was presumably sufficiently well drafted and relevant to its subject matter to have survived to the present day. Don’t let’s go down the route of modern legislation which never seems to survive the latest disaster (viz the last Government’s numerous Criminal Justice Acts).

For the last 17 years I have been Under Sheriff for the county of Norfolk and I am governed by the 124 year old Sheriffs Act 1887. From time to time I have to refer to what remains of the Act to keep myself and various High Sheriffs on the straight and narrow. It is a wonderful piece of Victorian solidity and I suppose today we should regard it as an example of the confidence of the Victorians of the time.

In that context, also, I have to deal with rewards awarded by the courts to people who have rendered particularly notable service in the interests of justice and this involves me in the provisions of sections 28 and 29 of the Criminal Law Act 1826. Last week a man who had singlehandedly tackled and captured a jewellery thief was given an award. His story was fascinating particularly as he was a modest man and did not relish telling his story. His most telling comment was that “I was brought up by my parents to know the difference between right and wrong and I did not hesitate to run after him and collar him.”

We could do with more people like him particularly after recent events, which brings me to the Riot (Damages) Act of 1886.

This legislation provides for the police to compensate those who suffer material loss in circumstances where there is a riot. I imagine there could be some claims flying about after the last few days.

“We are not amused” suits the situation well.

I have no wish to embarrass the trainees who asked me recently about partners who insist that electronic data be printed out [Girl in a Septillion, 11 Aug, 2011] but I think that lawyers who persistently ignore the changes in the rules and refuse to accept that today there is a more cost effective and efficient way of dealing with document review and disclosure are more than likely to hear a judge say, “I am not amused”.

Their clients will definitely not be amused if they receive a bill for wasted costs and are ordered to redo the disclosure they have already paid for!

The ability of so-called insiders to construct a special language marks out a territory to which outsiders are not admitted or are only admitted upon sufferance or the payment of a hefty entry fee. Lawyers do it, accountants do it, even litigation support professionals do it! Technology is no exception.

Even lovers do it! They have pet names for each other, private jokes and they laugh at things the rest of us do not find funny.

Nothing wrong in that but it is just another example of keeping out those who are not in the club. If you are trying to sell your services, however, that strategy is doomed to fail.

One of the first things I always do when speaking at a seminar or looking at a piece of marketing material is to assume that my intended audience has absolutely no idea what I am talking about. You soon realise that to use jargon is completely pointless because the audience really will not understand you.

It has always struck me forcefully that probably the greatest barrier to persuading lawyers to accept technology is the almost complete inability of the litigation support professional to explain what the technology brings to the party in terms that the lawyer can understand. For that reason I set out some time ago on the right hand side of this page the A to Z of terms commonly used in the industry with a plain English explanation.

My thanks go to EY’s  Jonathan Maas (@MaasJonathan) for pointing me, via LinkedIn, to an article in BBC News Magazine: Americanisms: 50 of your most noted examples. It starts off with that all too prevalent phrase these days “Can I get?” used by increasing numbers of the under 40s to ask for a cup of coffee or a drink and for all I know anything else they want. The article lists the 50 “worst” Americanisms which are creeping into our language. Some of them are truly mind bogglingly awful/sloppy such as “gotten”, “ that’ll learn you”  and “eaterie”.  If you thought this was going to be a rant about the creeping use of Americanisms into English you will be disappointed. I forget who it was who first described Britain and America as two countries divided by a common language but you get my point. If language is to be useful it must be understood by those to whom it is addressed. The problem with the new Americanisms is that often we just do not understand what is being said and in the world of business that just is not clever.

I am very happy to enter into that sort of exchange with anyone who is interested as there are definitely words the use of which really gets my goat. Now where did that phrase come from? But now is not the time.

Talking of goats, I was struck the other day by a goat in Bishop’s Square. For those of you who do not regularly walk round the old Spitalfields market in the City of London, this area is now a collection of the sparkling glass new and the shining white old (Wren’s Spitalfields Church). Even so, it is a little incongruous to find a statue of a goat in the middle of the entrance to the square.

The Spitalfields Public Art programme aims to provide an “exciting array of sculptures and soundscapes in and around Spitalfields market” and Kenny Hunter‘s amazing white goat standing on a pile of packing cases is a fine example!

Apart from goats and Americanisms I have been struck this week by numerology. Cricket lovers will know that last week’s Test Match at Lord’s (won by England by 196 runs) was the 2000th Test Match and the 100th between India and England. Add to that the possibility that Sachin Tendulkar might score his 100th international century and it was all going to get too much. Alas, for him and India, he did not. Since then the 2001st match and the 101st between India and England has been completed in 4 days with England again the victors by the astonishing margin of 319 runs. (Nowhere near as extraordinary as the win by 675 runs achieved by England over Australia in 1928, but that is truly another story).

All this is much easier to get your head around than the algorithms much beloved of litigation support professionals and so I am not going to go there.

However, “technology speak” seriously puts lawyers off. Its proponents should beware. After all it is obvious that if you are trying to sell something and the intended purchaser cannot understand what you are talking about, then you have erected a huge barrier for yourself.

And when it comes to the day of judgement, it might just separate the sheep from the goats!

The Sorolla Museum in Madrid and the Jacquemart-Andre Museum in Paris, “the passion of Edouard Andre and Nelie Jacquemart,”  are collections housed in the artist’s and the collectors’ houses respectively, whereas the magnificent Thyssen-Bornemisza Museum in Madrid is in a refurbished palace designed to show off the fabulous collection of pictures collected by the late Baron Thyssen which he gave to the Spanish nation in honour of his Spanish wife Carmen.

So it was that in a quiet moment after the end of Legal Tech in New York, and outside my schedule of meetings, I found myself walking 20 blocks up through Central Park to the Frick Collection.

It was a beautiful sunny morning and I was glad of my overcoat, woolly hat and gloves as the temperature was only a touch above 25 fahrenheit (-4C) and there was a sharp wind across the ice covered snow in the park. I had been to the Frick before about 12 years ago and it is one of my favourite museums so I was determined to see it again. It is contained in a magnificent Park Avenue building, lived in by Frick and his family and remodelled by him and his architect to house his truly gorgeous collection of paintings, sculpture and furniture and incorporating a garden made out of an old carriageway which had existed between the two parts of the house and which ran between East 70th and East 71st Street.

Henry Clay Frick was an industrialist who had an eye for some of the most sumptuous paintings of women. The Boucher room and the Fragonard rooms are outstanding and some of the other rooms contain pictures of beauties such as Elizabeth, Lady Taylor and Emma Hamilton, infamous for her affair with Admiral Lord Nelson before his untimely death at Trafalgar in 1805. Standing in front of these magnificent canvases I fell to thinking about the passage of time. After all, it is over 200 years since Nelson fell on the deck of the Victory and over 90 years since Frick himself died.

It is also 38 years since I first turned up at Allen & Overy in Cheapside to begin my articles, as training contracts were then called. The office was even then one of the premier firms in the City although I am not sure I recall the term Magic Circle being used. Lawyers had secretaries who typed all day on a selection of manual typewriters using carbon paper, and communications were all by telephone or by letter as fax machines (remember them?) had not yet been invented. Some of the senior secretaries operated with something called a Golf Ball typewriter and a select few had the first memory typewriter where the previous line of type appeared on a “ticker tape” in front of the typist rather like the information screens which run on a loop in modern tube trains.

In litigation, the White Book was the bible which contained the rules of the game. The game to be played was litigation and it was like Snakes and Ladders. You twisted and weaved through the small print of the Rules in order to outwit your opponents. If you were lucky (devious/clever) you could ambush them causing maximum embarassment as a result of which they slithered down the nearest snake while you climbed the closest ladder, for example,  by revealing some telling point to them which tended to undermine their case from cards previously played close to your chest. Solicitors were in almost complete control and the courts had limited case management powers.

Two years later, in 1975:

• Jaws and The Rocky Horror Picture Show were premiered.
• The Sweeney and Jim’ll Fix It started on TV
• In Vietnam, Saigon fell.
• Gerald Ford was US President.
• General Franco died
• Angelina Jolie, Kate Winslet and Charlize Theron were born.
• Britain voted 2 to 1 in favour of remaining in the Common Market.
• I qualified as a solicitor.
• The internet was scarcely a gleam in the eye of Tim Berners Lee!

How times have changed!

Today the Woolf reforms, born in 1998, are 12 years old. In the Noughties, more and more people sent emails and created documents which were never in paper but only existed electronically. As a result, it is practically inconceivable that a piece of litigation today does not carry with it the need to consider electronic documents. The courts have acquired significant case management powers.

Last October the new Practice Direction 31B came into force for most cases as the Rules Committee sought to catch up (for the time being) with the advance of technology. Lawyers must now consider, search for and disclose/inspect documents including Electronic Documents. Judge Simon Brown QC in the Earles case described a failure to know and apply the rules as “gross incompetence”. Now lawyers (or at least the better ones) understand that circumstances have changed and that they must plan how they intend to deal with electronic documents early on in the life of a case so that practical matters are agreed at the outset in the interests of furthering the overriding objective and their clients’ interests.

Now lawyers are concerned with the issues which arise from the practice and the concept of cloud computing [see Burying our heads in the clouds, 19th Oct, 2010]. They have to ask themselves how they will meet their disclosure obligations if their data is in the cloud. What happens if the court orders production of data by a specific date and the provider cannot meet the deadline? How will the court react? What happens if your provider subcontracts the storage of the data to a company based outside the jurisdiction of the court? That just did not happen when companies stored their data in metal filing cabinets, or, if it did, I never came across an instance!

At the risk of repetition, how times change!

One of the more interesting talks at Legal Tech was by Michael Rogers entitled “A look at the Law-2020.

Rogers is what is described as a futurist and I attended his talk because so much has happened since I started in the law and particularly in the last 5 to 10 years that I wanted to hear what he thought might happen in the next 10 years.

Some of his ideas were truly startling. They included:

• Law and lawyers should not assume that their profession is immune from change. Think used cars and the arrival of eBay.
• Since 2008, 15,000 legal jobs have been lost in the US.
• Technology will become smaller and more personal. Wireless will be everywhere and spectacles (goggles have already been tested) will enable us to recognise a person as he/she approaches, providing information about the person to enable you to speak to him/her about relevant matters even if you initially failed to recognise the person or to remember what he/she did.
• Intelligent systems will increase. Example is translation software which to a small degree is already with us.
• Software engineers will be more important than lawyers. As data increases, the organisation and management of it will become more important and the need for clever programmers will rise.
• A system of secure ID will become available because, at present, “on the internet no one knows you are a dog!”
• Open Source legal documents will replace the bespoke variety. Start ups already use them.
• Virtual law practices will be widespread. Telepresence will be perfected.
• Governments will have to act to deal with the rise of organised internet crime. Internet access will be crucial. Cyber war is simple: just turn off the internet and a whole country can be immobilised.

His closing message was along the lines of the need to strike a balance between the real world and the virtual but that we would do well to take care not to lose the values of the past while building the new world.

We have come a long way since Emma Hamilton and Elizabeth, Lady Taylor!  It has often seemed like a Dance to the Music of Time – Poussin’s painting being the inspiration both for my title and for and Anthony Powell’s 12 volume novel cycle of the same name.

And whilst on the subject of tenuous links, Josephine Tey is an author whose works are not that well known but who is remembered most for her book, The Daughter of Time. Not about time travel, it is an entertaining account of her view that King Richard III was not the monstrous child  murderer he is always made out to be. She argues that history is written by the victors and that after failing, according to Shakespeare, to find a horse on the field of Bosworth in August 1485, Richard was subsequently excoriated for murdering the Princes in the Tower (for which she argues there is little evidence). History was (re)written by the victorious Tudors whose claim to the throne depended to some extent on the Princes not being there to argue that their claim to the throne was better than that of Henry VII.

The Daughter of Time is a misquotation of Francis Bacon who actually said, “Truth is the daughter of time, not of authority.” Francis Bacon is also credited with the saying: “Knowledge is Power” which seems to me to be an appropriate way to conclude these musings. It is what e-disclosure is all about. Know your data and how to manage it and you can achieve the high moral ground, and serve your clients’ interests well at the same time.

So there’s no need to be content to dance to the music of time – the message must be that if you get it right by planning ahead, you will soon see that knowledge is power!

The concept appears in the Old Testament, the Koran and the Talmud and probably elsewhere as well. It is even referred to by Jesus in the Sermon on the Mount: 

38. You have heard that it was said, “An eye for an eye and a tooth for a tooth.”

Matthew 5:38. 

Today’s litigation is not so much about eye gouging and/or tooth extraction as about cooperation and proportionality, while reserving the right to be as beastly to your opponent as possible if the rules permit and you are prepared to risk having to delve into what must be a deep pocket. 

I have heard it said that “proportionality is what differentiates restitution and retribution from revenge by proxy” but many people will be familiar with the use of the concept in relation to limiting the powers of the various European institutions. The idea is to limit the actions of the Commission or other agency of the European project to what is necessary to achieve any given object so that the extent of the action contemplated is in keeping with the stated aims.

In terms of the criminal law, the punishment should fit the crime. In international affairs we often hear that such and such an action is disproportionate as in criticism of Israeli reaction to bombings of their territory emanating from Gaza.

To litigators, the concept of proportionality came to prominence when the Woolf reforms of 1999 came into effect and for some time now lawyers have believed that they knew what it meant. But just as an eye for an eye may not be the answer to an injury causing loss of an eye (these days courts in this country are reluctant to order the literal taking of the eye and the order of the day is some form of compensatory damages), knowing what amounts to proportionality is not as easy as it seemed. In my colleague James Moeskops’s phrase, “the fulcrum of proportionality is changing”. 

Put simply, advances in technology mean that what used to be disproportionate may not always remain so. What was expensive and time consuming and even well nigh impossible yesterday may not be so today and an assessment of what is proportionate needs constantly updating. 

Examples are everywhere. For those who are interested there is a selection of articles in the News section of the Equivio website [equivio.com/news.asp]  dealing with predictive culling.  

Other examples include keyword searching of audio and even video tapes in the same way as the written word can be searched by the use of keywords. But the one which really caught my eye was the Index Engines Case Study, which describes how e-discovery consultant eClaris was able to process and review over 500 terabytes of tape data in just 47 days!

eClaris processed over 1200 backup tapes containing 5 years worth of data, consisting of compressed email and unstructured files in Symantec Backup Exec format. The court had allocated 60 days for discovery of the contents and the processing and review was completed with time to spare. Index Engines supported the 2.2 billion electronic records, including email and unstructured files. 

Does this mean that everything is now proportionate? Of course not! But it does mean that lawyers need constantly to be aware of what the technology can and just as importantly cannot do and what it costs before they can possibly convince their clients, their opponents and even the judiciary about what is proportionate or not. For example, it is just not good enough to decide unilaterally to ignore a whole area of potentially relevant data on the grounds that it is too expensive to access or too difficult to restore or retrieve as the Ministry of Justice found to its cost in Goodale v Ministry of Justice.

Everyone must now know that on October 1^st the new Practice Direction on electronic documents (PD31B)came into effect. If you did not receive my email alert then please let me know!

We are all believers now! Aren’t we?

There are numerous examples. For instance, I have come across the attached piece published by the Education Forum. I reproduce it in full, typos and all!

A significant event marking the international relations of the 18th century was the 7-year war (1756-1763). The war established England’s position as the greatest colonial and naval power of the times and allowed Prussia, led by king Frederic the Great, to confirm its status as a great European military power. It is nonetheless common knowledge that despite the king’s energy and military prowess, there was a time when Prussia was on the point of giving in due to its enemies’ (Russia’s, more specifically) overwhelming superiority. In 1761, the new British cabinet, led by Bute, stopped the transfer of funds to the Prussians. Given the circumstances, Frederic the 2nd found himself no longer able of carrying on the war. He even gave serious thought to abdication. But then there came about what the king himself named “the miracle of the House of Branderburg”.

In January 1762 tsar Peter the 3rd, a great admirer of the Prussian king, followed his successor to the throne of Russia. He commanded that the Russian army put an end to all operations against the Prussian army, which situation provided Frederic the Great with an outlet to his predicament. This remains an incredible happening in the course of history, its consequences reaching far deeper than would appear at first sight. Hence, it is known that Germany was unified around the kingdom of Prussia. Had Prussia been defeated, it would not have played such an important part in the history of both Germany and Europe. If this were the case, how would it have become possible for Germany to be unified? Would the two World Wars still have taken place? These are amazing questions, emphasizing the beauty of history. Such questions can be made use of during classes, as brainstorming or debate themes for students.

As I grow older I find I am increasingly attracted to a consideration of our history and how it relates to the present day. Of course you need to have an understanding of some of the major events along the way otherwise you do not stand a chance of associating them with modern events or places you visit. If you did not know that King Philip of Spain had watched his Grand Armada set sail for England in 1588 from the height afforded by the Torre de Hercules, a lighthouse on the Spanish mainland near Coruna in Galicia in north western Spain, a visit to the present day light house would be fairly disappointing.

The War of Jenkins’ Ear has always been a source of amusement. Who was Jenkins, I wondered, and why was his ear so desirable? The wonders of the internet reveal, as my history masters did not, that a British captain Robert Jenkins, is said to have exhibited his ear to Parliament after it had been severed in a skirmish during which his merchant ship, Rebecca, was boarded by coastguards off the Spanish coast in 1731. Clearly Parliament thought that the severing of the captain’s ear, along with other indignities suffered at the hands of the Spanish was sufficient justification to declare war on the Spanish Empire, although they took until 1739 to do so.

The Coalition Government is looking for cuts but doubtless the provision of a severed ear to today’s MPs would invoke a different result today! I hear calls for Health and Safety inspections and a commission of inquiry.

Matters of chance are the stuff of history.

It so happens that I was at Boscobel House in Shropshire last week on the 350th anniversary of the Restoration of King Charles II. One of the best known stories of the Commonwealth years following the execution of King Charles I in 1649 is the extraordinary escape of the young Prince Charles (later King Charles II) following his ill starred attempt to recover the throne of his murdered father and his defeat at the hands of Oliver Cromwell’s Ironsides at the Battle of Worcester in 1651.

Anyone with an eye for history will have noticed the profusion of pubs in this country with the name The Royal Oak. After fleeing from Worcester Charles travelled approximately 650 miles by a circuitous route to avoid the searching Roundheads and arrive at the south coast and take a ship to safety in France. Early in his travels he came to Boscobel House in Brewood Forest on the borders of Shropshire and Staffordshire. Living and working on the estate of local landowners Charles Giffard were five brothers. George, William, Richard, Humphrey and John Penderel (Pendrell or Pendrill, there are many spellings) were royalists and Catholics and they, more than anyone else, ensured that the instantly recognisable, swarthy, tall Charles (he was well over 6 feet tall at a time when most men were considerably shorter) escaped the clutches of his pursuers and others who were tempted by the £1000 offered for his arrest. Charles spent an uncomfortable night and the best part of a day in the branches of an oak tree near Boscobel House while Cromwell’s forces were searching the woods round about before it was safe for him to be led to safety and on his way out of his kingdom. **

What a magnificent chance that he found the brothers, that they were loyal and that the means of his concealment were so readily to hand. The troops ransacked Boscobel House and uncovered its priest hole so it was just as well Charles had not been concealed there. Without this act, and the help of many others along the route, Charles would certainly have been caught and executed and our history would have been very different

There is, of course, a difference between leaving it to chance and chance itself. The latter you can do nothing about. Indeed it is self evident that if you could do something about it, it probably would not be chance.

Leaving it to chance is decidedly more risky and might be regarded in many areas of life to be unwise. The young Prince Charles had no choice in the end but to allow himself to be spirited around the country by allies and to hope and trust that they did not get it wrong. Had he been able to plan matters better, he might not have found himself in his predicament.

Lawyers are in a better position. While the volume of electronic data they have to deal with is increasing as are the sources of the material (Blackberries, PDAs etc), the technology is getting better at sorting it all out, collating the data and filtering it and making it available for review. I am not suggesting that because there is more data and the technology is now cheaper, quicker and more powerful that there is some kind of virtuous circle emerging. After all, if that were the case lawyers would be in danger of being out of a job!

But the legal input into e-discovery is vital. Do lawyers think that e-discovery is not for them? If so, I fear they are making a big mistake that, in the end, will cost them clients, work and ultimately status. I well remember the days of paper discovery (and it was called discovery then!) and how adept lawyers came to be at sorting out the mountains of paper and extracting the vital sheets. I recall teams of paralegals with heaps of photocopied paper spending hours/days just to put the paper in some form of chronological order before the lawyers could start their review.

What has changed is that the input from lawyers is now vitally required at an earlier stage in the proceedings. Decisions need to be made earlier because decisions made early on about how a particular data set shall be processed will have a knock on effect later on in the process. It is not safe for lawyers to assume that this process can safely be left to others. The attitude that it is only e-disclosure and I don’t need to get involved at this stage does not wash any more. It really is leaving it to chance to adopt that approach. Worse still is the attitude which says that I am too senior to do this and someone else can take the pain!

This is all wrong. Lawyers do not need to be techies. It is quite in order not to be. But at least they should have the sense to seek to understand what is involved in the process and then partner with an expert so that they are not taken by surprise. Lawyers would not dream of letting their client go to trial without a medical expert in a personal injury matter or an appropriate technical expert in a case in the TCC or even without Counsel in certain cases and yet do not take e-disclosure seriously enough to warrant consulting an expert in the field.

Lord Justice Jackson urged that lawyers and the judiciary should receive more training in e-disclosure. There are plenty of courses about the law but what is really needed is courses on what the technology can do and how this may be of benefit to the lawyers. In this way lawyers will be better able to explain to their clients why they should spend money on e-disclosure and what may be the result if they do not. It is all about the planning and not leaving it to chance.

If Charles had been able to plan things he would not have been stuck in an oak tree on a pouring wet day while people out to capture and execute him were hunting in the woods below. If Jenkins had not lost an ear in a skirmish off the Spanish coast would there have been the subsequent war? If Germany had not been united around Prussia would there have been either of the World Wars?

Leaving matters to chance is a chancy way to operate!

** If you have read this far, you may be interested to know that I am descended from John Pendrill through my mother’s family. As I result, I hope I am permitted to indulge in a little bit of personal family reminiscence!!

1. Britain’s forthcoming defence review.
2. Jackie Fisher, First Sea Lord at the end of the 19th Century.
3. John Terry, Chelsea and England footballer.
4. Publius Flavius Vegetius Renatus.
5. The Royal Navy.

Answers on a postcard please!  

No, not really. Inappropriate in this electronic age and there is no prize for this one anyway.

Last Sunday evening, I was happily clutching an alcoholic restorative in a comfortable chair by a roaring log fire, when my attention was drawn to background commentary on the TV about HMS Dreadnought.

The voice was Dan Snow’s, (son of Peter of the Swingometer arms beloved of election night audiences) the presenter of a BBC TV series about Britain’s naval past entitled “Empire of the Seas”. HMS Dreadnought was the ultimate fighting ship of its time. Built in HM Dockyard, Portsmouth in under a year and launched in 1906, it effectively rendered all other ships obsolete. The trouble was that this obsolescence extended to the ships of His Britannic Majesty’s navy too and encouraged the first real arms race as other naval powers such as France and aspiring powers such as Germany invested in their ship building skills in an effort to produce an answer to Dreadnought. At the time it was a magnificent fighting ship and if you were a sailor in Dreadnought you really did fear nothing. The guns had a huge range larger than any other ship afloat and the iron clad hull effectively meant that the ship was immune from penetration by any known enemy projectile.

Some of you will recognise this approach to litigation. You know what I mean! Marshal massive forces on one side and blow the opposition out of the water with everything at your disposal before the enemy has a chance to respond. The trouble with that approach is that it is often ineffective today. I remember the days when a well fed corporate lawyer would seek to reassure his client with the words, “Don’t worry, I will get one of our litigation chaps to issue a writ right away”, the implication being that by bringing all their firepower to bear immediately you would blow the opposition away.

It is odd to realise now that in those days that was allowed! I am not talking about injunctions and applications for other urgent orders such as Anton Piller (search and seize) but about any ordinary claim where the issue of a writ was thought to be the initial negotiating tactic or possibly the only weapon in the armoury. Nowadays, we have the concept of proportionality introduced by the Woolf reforms of the late 1990s and the various protocols to be followed before a claim form (a writ sounds so much more intimidating) can be issued.

Si vis pacem, para bellum. If you want peace, prepare for war! These words are attributed to the works of the Roman military writer Publius Flavius Vegetius Renatus. Writing in the 4th century AD he was responsible for a sizeable treatise on Roman warfare. Whether he wrote these words or not, they have been adopted and adapted by many others over the ages.

I understand the words are the motto of the Royal Navy today!

However, you translate them, the sense of the words is clear. You may not agree with the sentiment but there is force in the suggestion that in order to have peace you have to be able to prosecute war. You may not want to, but if you are incapable of doing so, it will not be long before someone seeks to take advantage of your perceived weakness and you have war not peace.

Dreadnought came and went in a matter of a few years. Just as the Admiralty and its designers strove to achieve superiority, so litigators strive to overcome their opponents but the emphasis is now on the importance of skilful preparation rather than reliance on mere superiority in numbers. In these days of proportionality it simply is not good enough to seek to overwhelm the opposition by deluging them with paper or ESI without taking effective steps to reduce the amount involved. If you do not do so, your opponents will almost certainly complain and raise the judgement in Earles v Barclays Bank PLC given by Judge Brown in October last year.

I have written before [Readiness is next to godliness, 16 Febreuary, 2010] about the importance of litigation readiness as part of a robust strategy for litigation and it seems to me that the more lawyers talk to their clients in times of peace, the better prepared they will be to deal with war when it arrives. Anyway, just think of the opportunities to build relationships with your clients in the process! Truly, if you want peace, prepare for war!

Last Sunday was a day for thoughtful reflection in other ways too. Hard on my poached eggs on toast (delicious with marmite too) I came across an altogether less palatable subject in my Sunday Times. Michael Smith had written a full page article on the forthcoming defence review under the title: “The shape of wars to come”.

Difficult decisions will have to be made about reshaping our armed forces with limited funds whichever Government we elect in the spring. The arguments are ranged all along the spectrum from the defeatist (let’s reduce them all to one service) to the alarmist via the pragmatic but as one former Admiral put it: “Peace doesn’t keep itself…..history shows that. We need forces that defeat and deter threats to the UK and protect our interests around the world. If you forget that, you are not going to be any sort of power. You become Belgium”.

Unkind to Belgium perhaps but his meaning is clear. If you wish for peace, prepare for war.

If you have stayed with me this long you may be wondering what John Terry has got to do with all this. I do not consider him to be an expert in this field of e-disclosure although I am prepared to concede he may be or perhaps there is a litigation support manager out there somewhere, whom I have not met, called John Terry! However, you will know the one I am talking about and I am sure you do not need me to intrude on private grief given the revelations of the past few weeks. However, John Terry featured in an article by Alastair Brett, Legal Manager of Times Newspapers, far removed from the sports pages of the same Sunday Times dated Feb 7th.

Beside being drawn by the arresting title – John Terry, the accidental poster boy for press freedom – I decided to read the article because I used to know Alastair at university and although I have lost touch with him I always read his articles as a way of making me believe that I am still in contact with him. His article carried a picture of JT with a pained expression on his face (hardly surprising) and a subtitle which “hails the ruling that leaves liars and cheats exposed” as JT’s so called Super injunction was lifted and his identity was revealed.

Alastair is clearly no lover of the super injunction and I wholeheartedly agree with him. His point, however, was that we are in danger of sleepwalking into the nightmare of a judge made privacy law which only serves to “protect the immoral but legal behaviour of the rich and famous, or which enables philanderers not only to gag a free press but also to claim damages for cheating and lying to their wives and fans”.

Strong words indeed. He went on through a whole range of recent stories from Avram Grant’s visits to a massage parlour in Portsmouth, through Max Mosley’s successful action against the News of the World for invasion of privacy after his predilection for S & M was revealed, to the Sunday Sport journalist who, in 1990, gained access to the hospital room of ‘Allo! ‘Allo! actor Gordon Kaye where he was lying gravely injured following an accident.

His object was to suggest that privacy law in this country is a mess and to propose a solution but whatever the solution it seems to me that the participants would do well to assume you are going to be found out and to take steps to prepare for when it happens. If you want peace, prepare for war! You may not succeed but you will be embroiled in an unpleasant spat if you make no effective preparations.

Something to talk to your clients about, perhaps, before they become involved in their own wars?

According to the Kroll Ontrack news release, ESI management is top of mind for corporations but effective implementation is falling.

This year’s survey also reveals 77% of US companies and 56% of U.K. companies believe their ESI discovery policy or strategy is repeatable and defensible. However, only 57% of US and 39% of UK corporations have a mechanism to preserve potentially relevant data when litigation or a regulatory investigation is anticipated.

“Without an identified means to suspend the expulsion of potentially responsive data, many companies are not positioned to execute proper preservation protocol or claim their ESI discovery readiness policy is effective,” says the report.

Now why does this matter? At this point, many people will curl up and want to go home but please bear with me because the whole concept of litigation readiness is hugely important to clients and lawyers alike. To be simplistic, if a company finds itself faced with a regulatory investigation or a claim for damages and is unable to find the relevant documents to support or rebut the issues facing it, the company’s lawyers are likely to face an uphill struggle.

Litigation readiness is a wide subject but one which is becoming increasingly vital for the future wellbeing of corporates faced with litigation and/or regulatory problems.

I am convinced that it is a subject to which I will have to return again and again in the context of electronic documents. For present purposes, however, I will confine my remarks to some of the basic points to bear in mind. In no particular order, you may wish to consider:

• The need to advise clients to have a clear document retention and destruction policy.
• The need to ensure it is followed.
• It is vital to ensure documents are not automatically destroyed eg when an employee leaves. Equally, it is vital to retrieve laptops, PDAs etc when an employee leaves.
• Document management is key to the ability to fight litigation
• Importantly, ensure any litigation hold is effective. There are different rules in the US from England and Wales. For example, there is a tension between Data Protection Act obligations and disclosure requirements, particularly in relation to requests from the US.
• Contemporaneous documents are vital when witnesses cannot recall. The recent case of Earles v Barclays Bank PLC is on the point. It is a decision of His Honour Judge Simon Brown QC, sitting as an Additional High Court Judge in the Mercantile Court in Birmingham and is dated 8th October 2009. The judge is a noted proponent of e-disclosure in appropriate circumstances. (see ‘Watch out! Costs about!’, 29th October)
• While there is no duty on a client to preserve documents prior to proceedings (and it is difficult to persuade the court to draw adverse inferences from their loss or destruction in such circumstances), the position is very different once proceedings start or litigation is contemplated. Adverse inferences may well be drawn if the documents are not available, although in this country there are no punitive damages as in the US although the court may penalise in costs or strike out a pleading.
• Consider privilege.
• Limitation. How long do I keep my records? See retention and destruction policy above.
• Parties must now think more widely than just about disclosure of emails and must search media other than merely PCs.
• They should be transparent about key word searches.
• Consider whether you should disclose metadata.
• Agree how the e-documents are to be produced for inspection
• Consider how best to reduce cost of e-disclosure.

Best practice may include:

• Use of technology can help with document management and document retention.
• Use of technology to reduce volume of e-docs held.
• Have a disclosure plan in readiness.
• Consult with other parties on the scope of disclosure.
• When appropriate, use technology to identify relevant documents and minimise review time.
• Use technology to review and analyse the documents.

By thinking about these issues and applying the simple ideas above, the cost of disclosure can be reduced as can the time spent on review.

However, systems must be in place before the litigation starts to ensure that costs are saved. It is more difficult to retrieve the situation once the proceedings are under way, threatened or contemplated.

The terms of reference are:

To review the provision of civil justice by the courts in Scotland, including their structure, jurisdiction, procedures and working methods, having particular regard to

• the cost of litigation to parties and to the public purse;
• the role of mediation and other methods of dispute resolution in relation to court process;
• the development of modern methods of communication and case management; and
• the issue of specialisation of courts or procedures, including the relationship between the civil and criminal courts;

and to report within 2 years, making recommendations for changes with a view to improving access to civil justice in Scotland, promoting early resolution of disputes, making the best use of resources, and ensuring that cases are dealt with in ways which are proportionate to the value, importance and complexity of the issues raised.

Turning to the sections on technology I found that in Chapter 2 at paragraph 22, there is the following:

Information Technology
22. Respondents were strongly of the view that the court system is currently not taking full advantage of the opportunities that information technology offers to improve the efficiency of the conduct and management of civil business. Significant improvements to efficiency could be achieved by transmitting documents to court electronically; communicating with the court by email; creating electronic processes or case files; using telephone or videoconferencing facilities; processing certain types of claim on line; recording evidence digitally; and providing information and guidance for the public and the legal profession online.

Nothing particularly controversial there.

The report then devotes Chapter 6 to a consideration of Information Technology and makes a number of recommendations at paragraph 84.

I have only been able to skim through the report’s recommendations which are:

84. Generally, we would encourage the increased use of IT to support the work of the civil courts in Scotland. In particular we recommend that:

•  The SCS should develop an up to date strategy for enhanced provision of IT based on research commissioned to identify the needs of all court users;
•  The SCS website should be a source of guidance and support particularly for parties in cases covered by the proposed simplified procedures falling within the jurisdiction of the district judge. It should include information on
  o Other sources of advice and assistance;
  o Providers of mediation and other forms of ADR including links as appropriate; and
  o Self help materials;
•  The use of email as a means of communicating with the courts and the judiciary should be encouraged;
•  The proposed pilot of an online small claims and summary cause system should be actively pursued as soon as is practicable and consideration should be given to extending the system to other undefended actions;
• Video and telephone conferencing should be encouraged;
• Consideration should be given to means of encouraging court users to communicate electronically. This may involve entering into some sort of agreement with a provider to allow access to systems locally; managing the provision of such access directly, for example with local authorities; or by lower court fees; and
• All evidence in civil cases, apart from those under the simplified procedure, should be recorded digitally. 

There appears to be no reference to the use of e-disclosure tools to assist lawyers to review and analyse copious amounts of data and documents along the lines of the everyday discussions in this blog and elsewhere.

For that we must contain our impatience and await publication of the Final Report by Lord Justice Jackson, likely to be early in 2010.