Apart from the immensely pretty Estelle Skornik who played Nicole, the series is astonishing in that, over its seven years, only five words were ever spoken: Papa, Nicole, Maman, Bob and Yes! But if this does not ring a bell and/or you are football crazy you may remember (although you may have to be an Arsenal fan!) that Thierry Henry was engaged to advertise the Clio in the Noughties, giving it added Va-Va-Voom.

For me, however, the original advertisements remain unsurpassed for impact and memorability.

I found myself reminded of the exploits of Nicole while I was in New York last week for Legal Tech 2012 and no fewer than three US lawyers mentioned to me a decision in the New York State Court Appellate Division in the case of Voom HD Holdings LLC v EchoStar Satellite LLC Index M 1748 and M 1833, 600292/08.

The court dismissed an appeal from and affirmed the order of the Supreme Court, New York County (Judge Richard B Lowe 111) granting the plaintiff’s motion to impose sanctions against the Defendants for spoliation of evidence. This is of course a US case with no direct influence or precedent for cases on this side of the pond, but I have always felt that it is instructive to see what the US does in relation to electronic discovery on the basis that they have a very mature market and, while our rules are different, there are many more similarities than appear at first sight.

The facts of the case are not material for present purposes and in any event you can see the whole judgment by clicking the link above. The point I want to draw to the attention of readers is that Judge Sallie Manzanet-Daniels confirmed that the approach to spoliation and legal hold (destruction/damage of documents and the obligation to preserve when litigation is, or ought reasonably to be, contemplated) should not come as any surprise to English practitioners. The approach adopted in the line of cases which runs through Zubulake v UBS Warburg LLC (220 FRD 212 [SD NY 2003] through Pension Comm. of the Univ. of Montreal Pension Plan, 685 F Supp 2d at 473 and Victor Stanley, Inc. v Creative Pipe, Inc., 269 FRD 497, 521 [D Md 2010] (all previously mentioned from time to time in this blog) is confirmed as correct.

I venture to suggest that this is something of which English practitioners should take note because the consequences of a failure to follow the basic rules may prove just as catastrophic for the party in default regardless which side of the Atlantic they are based.

As the Judge remarked:

“This case requires us to determine the scope of a party’s duties in the electronic discovery context and the appropriate sanction for failure to preserve electronically stored information (ESI)”.

That seems to me to make the case worthy of note. Starting this piece frivolously with the lovely Nicole is one thing, but if you are a litigation practitioner and you really want Va-Va-Voom, then you should take note of Voom v EchoStar.

Like the rumble of thunder which precedes the storm or the escape of sulphurous gas which heralds a volcanic eruption, it is clear that the EU is up to something.

That something promises to be momentous. Forget the recession/depression, forget the riots on the streets of Athens, forget (if you can) the reelection campaign of President Sarkozy (who has not yet even announced that he is going to stand for another term as President of our favourite neighbour)!

All this is unimportant. The EU is turning its attention to data privacy.

Now I am not for one moment suggesting that what happens to personal data is not rightly of concern, particularly to the person whose data it is. The EU has recognised its importance and on January 25th (Burns Night for those non Scots who need reminding that our northern neighbours will be getting smashed on Wednesday), the EU intends to publish proposals for new data protection rules.

I have not seen the draft proposals but believe that we may see included something along these lines:

• A right to portability enabling individuals to transfer data between companies more easily.
• A right to be forgotten! If you want to delete material from Facebook, the company will be forced to allow you to take the information down.
• Severe financial penalties will be introduced for leaking data. By severe, I mean a significant percentage of company turnover.
• One EU wide Data Regulation Authority which will not be based in Britain where we are regarded as having fairly lax data privacy rules which the EU doubtless thinks we should change.

The new rules are apparently essential to protect consumers and reduce bureaucracy according to EU Justice Commissioner Viviane Reding. Now that will be a first! An EU proposal that reduces bureaucracy? I can hardly contain my impatience.

While we will in all probability all have to get used to this brave new world, I advise against holding your breath. The proposals may well be published on Wednesday, but it will take years for the rules to be refined and amended and passed by national governments. My best guess is two to three years before they are finally enacted and by then, who knows: Greece and others may have left the euro, President Le Pen of France may have lost another “A” from her country’s credit rating and Libya and an independent Scotland may be applying to join the EU, if in fact it still exists.

As ever, however, I will keep you informed of developments and from time to time I may even share my views about them with you. In the meantime, I am off to the Land of the Free (where they have their own interesting and different data privacy rules) about which I will write more on my return.

When I was a practising lawyer, I fell into the camp of “being keen on marketing” but I was always a little disappointed with the results of my efforts. Fine, if you really had a triumph to trumpet about and an audience which was interested but otherwise it always seemed to me to be rather false. Perhaps I suffered from (false) modesty, a charge which my lawyer friend threw at me recently and this was how the conversation about social media started.

I have already joined the crowd who make predictions about 2012 and I am certainly not going to go down that route again, but allow me to say that this whole social media lark is becoming all-pervasive. It is virtually impossible to pick up a newspaper these days without seeing a report about some tweet, blog post or story on MySpace or Facebook. And the companies behind the successful sites are worth mega millions as can be seen by the recent LinkedIn float and the ongoing saga about the valuation of Facebook.

Ancient as I am, I have succumbed to some of this! I am on LinkedIn for professional networking reasons and I find this is reasonably successful and certainly worth the time I devote to it. I also blog for Millnet (as you will be aware if you are reading this!) and those blogs are often tweeted by me or my splendid and ever watchful editor,  Millwright, aka Alan West. I AM on Facebook but only as part of a fledgling Millnet company site/page and I have no current intention of taking the matter any further, if for no other reason than for fear of the wrath of my children, who have made it clear in no uncertain terms that they do not expect to see their father there! Incidentally I was amused to find that none of my children is a blogger or a tweeter, but there you are, you cannot have everything!

But it will not go away! If you want to find out about the real thoughts of the likes of Diane Abbott, the apparently maladroit Ed Milliband or Peter Mandelson, then go to Twitter or pick up a newspaper where their innermost thoughts are reported daily, or sign up to one of the many social media sites and start following people. It is in fact incredibly easy and later this year Twitter will celebrate its 5th birthday. How on earth did we manage without it? After all, by mid-2010 more than 70 million tweets were posted every day!

More seriously, though, I was delighted recently to make the acquaintance of Andrea Ward who is a Senior Associate at the London office of US law firm McGuire Woods. Andrea advises on all aspects of U.K. employment law and has extensive knowledge and experience of employment tribunal litigation, for all types of claims. In addition, she regularly advises on U.K. data protection matters for domestic and international clients and is particularly interested in the challenges for employers associated with social media and IT use in the workplace, including the boundaries of employee monitoring and privacy rights. During the course of a recent meeting with her she drew my attention to an employment tribunal case in May 2011 called Whitham v Club 24 Limited T/A Ventura, which is the first judgment I have seen in this jurisdiction on the question of the privacy or otherwise of musings on Facebook.

Readers of this blog will know that I have in the past referred to a number of decisions in the courts in the US on this very subject, but, as far as I am aware this is a first for us this side of the pond. You can access the judgment via the link above (and my case note will appear in the resources section of this blog soon) but the case appears to be saying that inappropriate comments posted on a Facebook page can be taken into account when considering a claim for unfair dismissal. What price privacy on Facebook?

The moral of the tale is as before; you post on Facebook or similar sites at your peril. If you do not want others to see what you have said, do not be fooled into thinking that the privacy settings will be sufficient. If you become involved in litigation they almost certainly will not be enough if the other side can argue that what you have or may have written is, or may be, germane to the dispute.

If more ammunition were needed, I have recently read via LinkedIn the predictions for 2012 by D4 e-Discovery. You can see them here – Top 4 from D4 – eDiscovery Predictions for 2012 - and I refer you to item one because it confirms that the US courts are going to town on this subject and cites four instances including our old friends McMillen v Hummingbird Speedway, Zimmerman v Weis Markets and Lester v Allied Concrete Company as well as a case called Crispin v Audigier. The article gives a short note on each case and the lesson to be learned is “Courts are allowing opposing parties unfettered access to social media accounts and plaintiffs’ counsel are finding themselves in unchartered territory. This is just the beginning and 2012 will see even more cases involving social media and decisions regarding preservation, disclosure and access to that information.”

As I have said, you tweet (etc.) if you want to, but watch out when it comes to disclosure.

In the race to modernity, the Supreme Court seems likely to allow advocates to dispense with court clothes. Whether this means that lawyers can appear in a collarless shirt and no tie or in Lycra and trainers, we will have to wait and see, but I predict a few arguments before the Bar (and it still is largely the Bar) are allowed to turn up dressed at will. The last case I listened to in the Supreme Court concerned the liberty of the subject and a proposed extradition to the United States to stand trial. I am not sure the applicant would have felt he had had his full deserts if his counsel had been in cords and trainers.

The Attorney-General has been given leave to bring contempt proceedings against the Daily Mail and the Daily Mirror over their coverage of the Milly Dowler trial and the conviction of Levi Bellfield. Coming hot on the heels of the harrowing testimony from Milly’s parents and others at the Leveson Inquiry, the decision to take action against the two newspapers ensures that we will not have heard the last of this subject for some time to come. In the circumstances, I think this is probably no bad thing as matters like this tend to be forgotten too easily. I wonder how they will collect all the electronic material which undoubtedly exists. Presumably, the lawyers concerned have already formulated their strategy. It is never too early to do so as decisions made at this preliminary stage can set the tone for the conduct of the case in the future.

Lord Justice Jackson is also back in the news. His reforms to civil justice are currently making their way through Parliament in the form of the Legal Aid, Sentencing and Punishment of Offenders Bill. This seems to be a strange title for the vehicle to make changes to the CPR but its contents, should they become law next year, may be viewed in due course as truly modern and even revolutionary.

The Lawyer of November 23rd 2011 carried an article entitled “Get used to it” setting out the proposals made by Lord Justice Jackson which are at the heart of these reforms. It seems to me that in order to deliver the regime to assist litigants to save money and to ensure judges have the tools properly to manage the cases for which they are responsible, technology will play a large part.

In that sense technology will truly rule, in the rush to modernity.

Rest assured that references to Pandora’s box and Ancient Greece are not intended as a prelude to commentary on the dire state of the Greek and other Eurozone countries (and others like our own which are directly affected by the mess the over-confident Europhiles have made of the economy of the once prosperous Western world).

No, my purpose is to praise the ever colourful language of our American cousins sitting in their courtrooms around the USA, who, while dealing with a variety of cases which might just as well be heard in any court in this country, ever delight in a word or turn of phrase which while slightly out of the ordinary, serve when used by US Judges to underline the truths we should come to accept as the norm here in this jurisdiction.

I want to draw your attention to more decisions of the US courts on the issue of social media and spoliation, as they call it, or as we would more readily understand it, the deliberate withholding of material evidence.

Let’s deal first with the case of Mr Matt Murray. In a case in Charlottesville, Viriginia, Judge Edward Hogshire imposed sanctions amounting to $572000 on Mr Murray for hiding evidence and deliberately trying to deflect the blame for his failings to the court. The court order may be viewed here and all that needs to be said is that Mr Murray has left his law firm (and it appears they had no idea what he was doing or not doing) and indeed is believed to have left the law altogether.

Moving on to Pennsylvania’s Common Pleas Court and the judgment of Judge Richard J Walsh on the discoverability of information on Facebook in the case of Largent v Reed (as reported in Law Technology News on 23rd November, No Reasonable Expectation of Privacy on Facebook, Pa. Judge Says):

“Only the uninitiated or foolish could believe that Facebook is an online lockbox of secrets.”

This case is only the latest in a long line of cases which I have mentioned before (such as McMillen v Hummingbird Speedway Inc)  which make it clear that use of social media is increasingly becoming a potential minefield for litigants who think it is safe to post all kinds of personal information apparently believing that it is safe from view except to those to whom they choose to permit access.

But to describe Facebook as “an online lockbox of secrets” takes judicial language to new heights for which one can only be thankful to Judge Walsh.

There is one other point of interest in this case; the case report mentions the Stored Communications Act of 1986. As I understand it, the Act provides that the account owner must be approached for online details whereas the internet service provider is protected from suit. In Largent v Reed the Judge decided that the Act did not apply because the information being sought was from the Plaintiff/Claimant direct and was not in the form of a subpoena directed to Facebook (in which case I assume the SCA may have applied and the application for disclosure would have been rejected).

“Lockbox” or not, it is now surely crystal clear that you post information in social media at your peril. If you fall foul of this, and go into court to argue that such information is not disclosable, you can expect to be faced with a Pandora’s box from which all Hope has vanished. In such an eventuality, the likes of Judge Walsh might be moved to quote Dante’s famous inscription over the gateway to hell, “Abandon hope all ye who enter here.”

Photo:19th cent. engraving, Pandora’s Box, based on a painting by FS Church (Wikimedia Commons)

• Firstly, Ronni Solomon of King & Spalding, Atlanta referred to a case which resulted in high level executives having to give discovery of their private webmail addresses.In the memorably named Helmert v Butterball in the US District Court Eastern District of Arkansas Western Division (May 2010) J Leon Holmes US District Judge said:“Active, online data is generally considered accessible. Zubulake, 217 F.R.D. at 318-20. Thus, in addition to conducting a search of active and archived emails in Butterball accounts, the defendant should also search hard drives, laptops, and the personal email accounts of Walter Pelletier and Keith Shoemaker*fn11 for the search terms described above. To the extent that it has not yet done so, Butterball also should disclose all of the sources of ESI within its possession and control.”.This continues the trend towards disclosure of what many will consider to be private email accounts but as I have said before I do not think that anything has changed here. After all, if the “document” is discoverable/disclosable in the ordinary way, why should the courts not order the means by which the document can be viewed to be opened up to the other parties? All that is happening is that the courts in the US are making more of this in reported decisions than we are here. Let no one here think, however, that the same cannot happen in this jurisdiction. It can and it will and one day there will be a reported case..  
• Secondly, hard on the heels of the report that Roger Bamber, Mills & Reeve partner, had said that “the hourly rate has been the most damaging for lawyers over my practising life”, there was the comment in a session on litigation budgeting that “I cannot tell you what the costs are going to be is increasingly an unsatisfactory answer.” Worth thinking about!..  
• Thirdly, US Magistrate Judge David Waxse(Kansas) observed that lawyers were like particles in physics. “They change when observed,” he quipped. I really cannot better that! 
• Last but not least, I was much taken with the remark attributed to Judge Grimm (Maryland) when commenting on the exercise by the United States of long arm jurisdiction over data sitting elsewhere in the world. The judge’s explanation for this and the opposite attitude traditionally adopted by European jurisdictions in relation to sensitive data is that everything stems from the Second World War. The reason why European countries are generally more concerned about data privacy is that issues of this kind relating to sexual orientation, race etc touched mainland Europe 70 years ago. On the contrary, these issues did not touch the common law countries such as the UK, the US, Australia and Canada in the same way and consequently those countries tend to be more relaxed about the movement of data than the civil law countries. I had not thought of it like that but it seems to make sense!

In a recent article in Law Technology News, Mark Michels, Silicon Valley consultant and formerly litigation manager and discovery counsel at Cisco Systems, informs us that a number of judges have recently contributed to the debate about predictive coding, sometimes referred to as ‘technology assisted document review’. [Predictive Coding: Reading the Judicial Tea Leaves, Law Technology News, 17th October 2011]

US District Court Magistrate Judge Andrew Peck, Magistrate Judge John Facciola of the US District Court for the District of Columbia and Magistrate Judge Paul Grimm of the District of Maryland are three of the strongest proponents of e-discovery solutions currently sitting in the US courts.

The article is worth a read but for those of you who are taking advantage of the recently reported upsurge in litigation and litigation spend the bare bones are as follows:

• Judge Grimm has been a supporter of these analytical tools for some time and spoke approvingly of them in Victor Stanley, Inc v Creative Pipe Inc about which I have previously written [Spoiling the Party 14th July, 2011] as a result of the excellent article on the subject by Carol Owen of Waller Lansden in Nashville Tennessee.
• A more recent judicial endorsement of the tools comes in Judge Peck’s article [Search, Forward: Will manual document review and keyword searches be replaced by computer-assisted coding?  Litigation Support Technology & News, 30th September, 2011]. Engagingly, Judge Peck asserts that until there is a judicial opinion to the contrary (or in favour) lawyers will have to rely on his article as “ a sign of judicial approval.”
• Judge John Facciola in Disability Rights Council of Greater Washington v Washington Metro. Transit Authority quotes with approval recent scholarship “that argues that concept searching, as opposed to keyword searching, is more efficient and more likely to produce the most comprehensive results.”

Lawyers need to know that using such techniques is defensible and the three judges are at pains to stress that as far as they are concerned they are happy to accept that the processes involved are appropriate provided always that the parties can demonstrate that the results are “responsive and reliable” which may well need expert evidence to be called.

My colleague, Millnet Managing Director James Moeskops, just back from the recent Nuix Exchange in Sydney, reports that one of the highlights was the judges’ panel. It is encouraging to see a growing global consensus about how these issues need to be handled, a consensus which has the judges behind it and which is aimed at the central issues of the efficiency and cost effectiveness of the litigation process.

At Millnet, we have been involved in a number of client cases of technology assisted document review over the course of the past few months. As a result, we now have experience of a number of actual live cases and this experience is proving to be invaluable not least because much that has been written about the subject is speculation and supposition whereas we now have the hard facts!

This is just as well as truly, the judges are coming and litigators and litigants need to take note!

It is not much better further along the Mediterranean either with Berlusconi withering on the vine, Zapatero running for cover (elections in Spain have been announced early for 20th November) and Portugal assumed to be every bit as badly off as the others.

And that is before we come to our own rather parched patch in the UK to say nothing of the swathes of desert in Ireland and the increasingly bare ground in France, Belgium and the USA.

One of the few verdant areas in the financial garden is Germany but the indigenous gardeners are not keen on lending out their watering cans and still less their extra produce to sustain less fortunate horticulturalists.

At risk of mixing my horticultural and meteorological metaphors it seems that even clouds that bear no rain can have a silver lining, as reported in an article in The Lawyer a few weeks ago - [UK Litigators cash in on rise in international work, Joanne Harris, The Lawyer, 12th Sept, 2011]. Apparently, Norton Rose posted a whopping 144% increase in litigation turnover in the past 12 months, doubtless aided by mergers, whereas Eversheds topped the list of the others by posting an increase in turnover of almost 40% taking the firm to just outside the top ten group of firms who each turn over in excess of £100 million in litigation activity.

More modest returns are the norm outside these two with a clutch of firms returning percentage increases between as little as I-2% to DLA’s 14%, Linklaters’ 15.6% and Clyde & Co’s 16.8%.

It seems there are a number of factors at work here. Joanne Harris suggests that, based on information from managing partners and heads of litigation, prominent amongst these are:

• International networks are a source of litigation work and more law firms have international offices than previously.
• Non UK firms are happily using the English courts and English law to resolve their disputes.
• Recent decisions by Mrs Justice Gloster in Pioneer Freight Futures v TMT Asia and Briggs J’s judgment in Lomas v JFB Firth Rixson Inc have helped to clarify our complex financial services law relied on by others around the world.
• The growth of regulatory work and mediations.
• The increase in international arbitration: think Paris, yes, but Singapore is fast becoming a “go to” centre for arbitration (often involving English Law) and the Middle East is booming as arbitration becomes an acceptable way to resolve disputes there.
• Mergers, which are increasingly likely to bring benefits of size and reputation (e.g. the merger between Clyde & Co and BLG).

So is it all rosy in the lawyers’ garden?

Possibly, although cost remains an issue. It is now widely recognised that the cost of litigation needs to be reduced and it is particularly pleasing that that message appears to be accepted across all kinds of law firms now. Part of this is due to rule changes, such as the Practice Direction 31B and the Electronic Document Questionnaire and part is due to client pressure. It is also due to the increasingly sophisticated technology available in the area of predictive coding and similar developments in collections (eg from back up tapes previously thought to be likely to be disproportionately expensive and time consuming).

Firms are also turning to the third party litigation funding market where we have seen increased activity over the past 6 months and which can only become more important as the reforms proposed by Jackson are implemented (such as the non recoverability of success fees)and initiatives such as the Birmingham TCC pilot of a cost management scheme which is likely to be rolled out to other courts.

Ian Gray of Eversheds says that 2012 to 2014 looks “pretty tasty” and DLA’s Stephen Sly thinks that “there’s not been a better time to be a litigator in a generation.”

And yet, and yet, why do I feel that all this seems a tad frothy? The only reason I can currently think of as the clouds of impending world economic ruin swirl about our heads relates to the lack of people suitably qualified and available to handle all this litigation.

Law firms have cut their staff over the past three years and I imagine they are not keen to reverse that particularly expensive trend. But if there are so few training contracts about, how is the next generation going to learn? Contract lawyers do not appear to have taken off in this country and outsourcing of review work to India and the like has had a mixed press. May be Allen & Overy and Herbert Smith are on to something with their new Belfast based projects about which I have written before.

In my own field of litigation support services we would happily hire more staff such as project managers if we could find any suitably qualified. There is a real lack of good industry professionals out there and we find ourselves constantly looking for people. We are in fact what my fellow directors call “resource challenged” and if that particular little black cloud on the horizon were to blow up into something more serious or prolonged I could see real problems in future whether in litigation support or in the law.

It is not only in the law that there are skills shortages. Recently, we have housed a succession of students in our offices undertaking the time consuming, manual and tedious task of sorting through records with the aim of putting them in a sensible sequence to enable them to be understood intelligently when scanned and coded. Why they could not have been kept in proper order beforehand, I have not yet discovered.

The current crop of workers includes Alice and Kimberley who are from Australia. Little did they suspect that part of their time in the UK would be spent sorting through records from a variety of organisations round the country merely to put them in order so that they could be scanned.

I am not convinced that Alice and Kimberley think that the garden is entirely rosy in this regard but who else is going to perform this necessary if mundane task? This is the problem and I do not see any quick or easy solution to it. It is a problem of supply and demand and in the case of the lack of suitably qualified and available project managers there is demand but no supply.

Having said that, Alice and Kimberley have both added a dose of Antipodean good humour to what can only be described as a tiresome task but it is hardly what they were trained to do.

That mismatch seems to me to be all of a piece with my rumination that a lack of suitably qualified and available staff can cause a problem in whatever field of engagement you may choose

So is everything in the garden all rosy? I leave you to judge but I have my doubts!

Photo credit: Copyright (c) 123RF Stock Photos

Rather like English law which is almost impossibly flexible and which accounts for its popularity around the world, the English language is full of words to describe different nuances of the same thing. We may not be able to match the Inuits and their countless words for “snow” but there are many instances in our language where different words describe the same thing.

It makes it all the more amusing when you come across a word which in itself can have two contradictory meanings – a contranym. Examples might be “oversight” or “dusting” or “buckle” or “fast.” And there are a number of others.

An oversight may be something overlooked or something you look over. Buckle can mean fasten or collapse. Fast is quick or fixed/stationary and dusting can be to remove dust or to sprinkle it!

Earwigging is said to come from the old wives’ tale that an earwig could burrow into a person’s head via the ear and poison the brain. However improbable that may seem, there is certainly support for the view that the term was coined in Parliament for the practice whereby members of the governing party would approach the chamber from behind the Speaker’s chair and as they passed by would whisper into the Speaker’s ear. Until the present Speaker, incumbents used to wear a full bottomed wig rather like judges so it was necessary to raise the corner of the wig to expose the ear, hence the term “earwigging.”

So far so good! However, I have recently learned that earwigging is also “to annoy or attempt to influence by private talk.” Further than that it is a legal term unique to the State of Mississippi.

The subject of earwigging is discussed by one James Haltom (associate at Burr & Forman LLP of Nashville Tennessee) in his article “Earwigging the Chancellor Prohibited: A Violation of Legal Ethics“.

It was the subject of a talk by Jim Greenlee, former District Attorney in Mississippi, at the recent LCA conference in relation to the trial of Mississippi attorney Richard “Dickie” Scruggs from which it was clear that under state law the practice of earwigging has come to mean improper ex parte communication, prohibited by Mississippi Chancery Court Rules.

At this stage I can imagine that one or two of you, while fascinated by this discourse into esoteric use of the English language, are beginning to wonder whether it is not time for lunch, so I will be brief.

The sloppy use of language can land you in trouble as I have discovered to my cost, see Spotted flying goats over London, 18th Aug 2011. All the more so, if it is jargon which is merely an example of sloppy language where it is used to confuse and to exclude. Lawyers and technologists are equally guilty of this. It really does not help as jargon only constitutes a terrible interference with understanding.

Regular readers will know that we have a jargon busting A to Z of e-Discovery terms on the right hand side of this blog’s home page and my message is simple. Earwigging may only be forbidden in one State of the Union but the assumption that everyone understands the words you use to describe a process familiar to you but not to the person with whom you are speaking is folly. As Oscar Wilde said “To assume is to make an “ASS” out of “U” and “ME”.

Incidentally, do you know the origin of the word “solicitor”? I think it comes from the Latin “sollicitus” which meant troubled or anxious. From there it was transformed into the verb “sollicitare” to entreat and from there to the French “soliciteur” which meant an agent or instigator and advocate and thence to someone who acts on behalf of others. You can imagine my concern for my continued wellbeing when entering the downtown Amtrak station in Boston at South Street when I was confronted by the warning “No soliciting!”

As you can see jargon can be misleading. Selection of an expert is a strategic decision. To select someone who only engages in jargon is likely to prove to be a poor decision.

Better to win battles by knowing the rules and the cases than by indulging in sharp boy tactics. At least you will know what you and they are talking about and you can safely leave earwigging to the lawyers in Mississippi!

Most people will be only dimly aware that over 95% of the judicial work in the courts of this country is carried out by unpaid volunteers who have taken an oath that they “will well and truly serve” the Queen “in the office of Justice of the Peace and do right to all manner of people after the laws and usages of the Realm without fear or favour, affection or ill will.”

“Justices of the Peace” have in fact been around for even longer than that! After trial by ordeal, with its illogical outcomes of innocence only being presumed after the accused had succumbed to the ordeal by fire or ducking stool and survival of the ordeal meaning guilt, there was a period when offenders appeared before their villages or local communities where innocence depended on the number of “oath bearers” or “jurors” an alleged miscreant could muster. If he could muster more than his accusers, he was innocent. Better than trial by ordeal but still far from perfect!

King Richard the Lionheart had appointed “Keepers of the Peace” in 1195 in order to maintain order in parts of his unruly realm (not sure about the Sheriff of Nottingham though!) and in 1327, an Act said that “good and lawful men” were to be appointed in every county to guard the peace. But it was not until 1361 in the 34th year of the reign of Edward III that the King appointed “Justices of the Peace” to meet in each locality four times a year.

Incredibly, these “Quarter Sessions” lasted until 1972 although the courts had of course long since been running all year by then.

The Justices of the Peace Act of 1361conferred the title of Justice of the Peace and set up the system and conferred the powers which JPs still hold today.

There have been changes, of course, but broadly speaking magistrates still do the job they were given in 1361. In 1389 it was decided that they should be paid 4 shillings (20 pence) a day but payments lapsed and they were never offered a rise!

Today, magistrates still give freely of their time and energy, for no material reward, to preserve the peace and safety of our towns and villages which is so essential for the right and peaceful ordering of our communities.

At a time of economically straitened circumstances it is understandable that the Government of the day should be keen to reduce the nation’s deficit by cutting back expenditure. But it is also unforgiveable that these unpaid stalwarts of our judicial system should be plagued by fears that their local courts will be lost (a fear which in many places has already become a reality) and that highly paid and professionally qualified District Judges are appearing more and more in Magistrates’ Courts thus reducing, at any rate the perceived, value of the local magistracy.

The late Lord Bingham, former Senior Law Lord and Lord Chief Justice, once described the magistracy as “a jewel beyond price” and it is to be hoped that we do not allow the jewel to become tarnished in any way and certainly not as a result of misguided attempts at so called economic efficiency. After all, what other system offers over 95% of judicial work for no material reward?

In the US there is a system of magistrate judges who generally sit as court appointed experts with other legally qualified judges. I am aware that so called e-disclosure experts are often appointed as court experts to advise the civil judge on the intricacies of e-discovery being argued before the court. It does not yet happen in this country, but if it were to be introduced, and I have heard more than one judge mention the idea with approval, the e-disclosure (here)/ e-discovery (everywhere else in the common law world) expert so appointed should be proud to bear the name of magistrate associated with the “good and lawful men” (and nowadays, quite rightly, women) who daily dispense justice around the country for no pay!

Truly, a jewel beyond price.