Category Archives: Law & law makers

Finding the missing link

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I promised to return to the subject of the missing link at the end of my last post when I said that:

“I will try and explain what I think he (Richard Susskind) meant and how this ties up with new legal structures, technology, LPOs and dead satellites falling to earth in my next post.”

I was a litigation lawyer for many years and with all the benefit of hindsight and from the privileged position of no longer having to earn my living by being a litigator I occasionally pause to reflect on where the litigation process and litigation lawyers are going. I worry when I see a profession that is unable to find jobs for bright graduates of the LPC. They would be of huge benefit to their chosen profession, if only they could be selected for a training contract to help them pay down the debt they incurred to get themselves through university and the professional exams now demanded of them.

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In search of the missing link

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Earthquake in Indonesia: thousands die, no Britons involved

This kind of laconic if self-centered headline has always amused me. We tend to think things are important if they affect us and less so if they do not. On that basis I wonder if we should have been concerned about the recent report from NASA that preceded one of its satellites falling to earth. The agency did not know when or where the satellite would drop but in order to assuage the fears of the populace at large said that it will be somewhere between Alaska and the tip of Southern America, it would be in late September but could be in October and, doubtless, we were all pleased to learn that there was only a one in 3,200 chance of satellite parts hitting anyone.

If ever there was a piece of more useless headline information, I have yet to see it. Presumably, the inhabitants of the whole continent of America would have been taking precautions for an event that had a real chance of catastrophe. After all, a one in 3,200 chance spread amongst about 500 million people is still a 0.000006 chance that someone might suffer from a severe headache when hit by part of the stray satellite falling out of the night sky, clobbering them on their way to work.

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We are not amused

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Did Queen Victoria actually say “we are not amused” or was it Queen Elizabeth I?

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!

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Stuffs had strange names and were very expensive in the days of the Tailor of Gloucester

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Ancient legislation has been much in the news recently what with the 100th birthday of the Official Secrets Act of 1911 and the dusting off and scrutiny of the provisions of the Riot (Damages) Act 1886 by countless claimants and nervous police forces (and insurers).

The oldest piece of Statute law in the United Kingdom which has not yet been repealed is the Statute of Marlborough of 1267. Two provisions are still in force, namely the Waste Act of 1267 which seeks to prevent tenant farmers making waste on land where they are tenants and the Distress Act 1267 which makes provision for the recovery of damages (distresses).

Many people would say that an even older piece of legislation is Magna Carta of 1215, although the charter is not strictly speaking an Act of Parliament.

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End of the beginning

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Which is closest to your view of disclosure/discovery?

•Technology created the problem so technology needs to solve it.

•Electronic discovery is often the tail which wags the litigation dog, using up between 50% and 80% of the litigation budget.

•I am afraid not to know it because it dominates every part of the case.

•None of the above.

The debate goes on and what is surprising is how many divergent views there are about a subject which ought by now to be mainstream. After all, no litigator can now be doing his/her job properly if they do not at least consider the use of technology when deciding how to manage the data in the case or deciding on the strategy to be adopted.

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Doing the Lamberth talk

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Imagine a standup comic who delivers the punch-lines of his jokes first, a plane with landing gear that deploys just after touchdown, or a stick of dynamite with a unique fuse that ignites only after it explodes. That’s what document production after trial is like—it defeats the purpose.

These are the opening lines of the Judgment of US District Court Chief Judge Royce Lamberth in a case called DL and Others v The District of Columbia.

Now I had never heard of Judge Lamberth but getting discovery wrong in his court evidently results in what has been described as a “scathing opinion”.

In his Memorandum Opinion  [PDF, 18pp] Judge Lamberth describes the handling of discovery by the defendants and their attorneys in a six year class action as “repeated, flagrant, and unrepentant failures to comply with Court orders.”  Not that this would ever happen in this jurisdiction of course! 

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I told you so

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Readers of this blog will be familiar with McMillan v Hummingbird Speedway.

It was a case in the US  last year where a court ordered a claimant to release his user name and password to a Facebook site where it was thought he had posted comments about injuries sustained in an accident for which he was now claiming damages.

In various posts referring to the Hummingbird case [for example, Judge, please be my friend, 18th Jan, 2011] I predicted that this decision would be followed elsewhere.

A court in Pennsylvania has now followed this judgement in Zimmermann v Weis:

Zimmerman v. Weis Markets, Inc., No. CV-09-1535, 2011 WL 2065410 (Pa. Comm. Pl. May 19, 2011)

I wonder how long it will be before the courts in England and Wales follow suit?

Fasten your seat belts

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Is this the correct advice to businesses which are now subject to the Bribery Act 2010?

After the thousands of words written about it over the past 18 months, the Bribery Act has now come into effect. As from July 1st 2011, British business has to face up to the reality of doing business under a statutory anti-bribery regime in much the same way as US business has done for over 30 years with its Foreign Corrupt Practices Act.

What does this mean for business? There are countless commentaries on the subject and, as they are readily accessible on the internet and in legal journals, I hesitate to add to the welter of information on the subject. Temptation gets the better of me in a small way so let me remind you, shortly, that:

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Twit, twittle, twit. The long view of e-disclosure

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There is a view often expressed that the law is failing to keep up with developments in technology. You only have to read the papers (if anyone still does) or read what people are saying on a myriad of social networking sites of which Facebook and Twitter are the most often quoted.

Occasionally the law comes up against someone who is perceived by some to be a particularly persistent “offender”. That person writes a series of articles, the subject of which then seeks to prevent disclosure of the material. The matter comes to court and then the unexpected (or should I say unintended?) happens. The trial does not go as expected and the whole point of the court case is lost. The person who attempted to prevent disclosure has a considerable amount of egg on his/her face and the information they wished to keep secret is more widely disseminated than they could ever have feared.

Does this sound familiar? If so, you are probably thinking footballers playing away, super injunctions and tabloids screaming with names, pictures and luridly illustrated stories.

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A leap into the unknown

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We push the youngest member of our team Bridie Sheldon into writing a blog… about blogging.

Imagine you have just thrown yourself off a bridge. You are plummeting ever nearer and nearer to the ground and then, in a split second, the free falling feeling turns into a stomach churning rebound up into the stratosphere, or so it feels. This is because you have a piece of stretchy cord tightly strapped around your ankles.

Yes, I’m talking about bungee jumping. For some, including myself, the idea sounds exhilarating. The feeling of free falling is undeniably unbeatable, giving you the chance to let go of everything… and fly.

Why would anyone not? Well I have to admit, I remember standing at the top of the ragged gorge and, as I looked down, I began to think of the risks involved. What happens if they didn’t calculate my weight correctly or what if the bungee snaps…? I could end up with a serious headache.

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