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.

Back to today and I was inspired to think about Burns by an aside from my new colleague John Lapraik. I learned that in the dim and distant past (the 18th century) there was a Scottish poet bearing John’s name who was a friend of Burns’ and who just happens to be John’s something times great grandfather.

However delightful it was to live in Ayrshire and rub shoulders with the rather better known Mr Burns it seems that Lapraik’s books and poems have all but disappeared. I cannot judge whether this is a loss to Scottish literature but no such scruples deterred one James Maxwell. A contemporary of both Burns and Lapraik, and one who did not approve of the latter’s writings, he was moved to comment on their disappearance as follows:

For some devoted theirs unto the flame;
Bumfodder also others made of them.
Some turn’d to dung, and others they were burn’d,
And so to dirt and ashes all were turn’d.

Sounds a bit harsh to me! Obviously no wee tim’rous beastie he.

[You'll find more on John Lapraik the elder here: www.lapraik.com]

Whatever your predilections in the poetry department, it will come as music to many ears that Millnet has been certified under ISO 27001 International Standard for Information Security Management Systems. This has become essential in respect of many of the services we provide to law firms and other clients and we are delighted.

And so time moves on! Millnet is off to New York (fast becoming a very important place for our business) at the end of next week to attend LegalTech 2012 and to see clients and colleagues “over there.”

I doubt whether New Yorkers celebrate Burns night as much as they go to town on their Irish connection in March but I anticipate a fair amount of eating and drinking in a busy schedule over six days. If I am not to miss them, I had better get the haggis, neeps and tatties on board before I go.

[Editor's note. Not so fast with the haggis exports Charles. Imported haggis was banned by the United States because its food standards agency has a prohibition on sheep’s lungs in their food products. Traditional Scottish haggis is made with sheep’s heart, liver and lungs and in addition to the sheep lung ban, the US also prohibited the use of offal from the United Kingdom since the BSE outbreak in 1989. Unlike us Brits (this one anyway) Americans don't seem that fond of offal on taste grounds alone, even without the FDA's strictures.  It seems that with food regulations, as in the sphere of data privacy, there are notable differences in the rules between the EU and the US.]

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.

Coming back to work after an extended break is never easy. At least for me and most others, I suspect this to be true. It does not matter if you love what you do, it still takes time to get back into the groove.

I ended the year on a note of optimism for 2012, something not all commentators managed to achieve. Rain squalls apart, (and this one soon passed), the New Year has started with two pieces of excellent news for Millnet.

• Firstly, we are being joined by John Lapraik, formerly a partner at Kennedys. John starts with us this week with a wide ranging role which includes the provision of e-disclosure advice, project management and working on internal process improvement. John used to be responsible for e-disclosure issues at Kennedys and will be an excellent resource to the team at Millnet and to our wider client base as he brings all that practical, hands-on common sense and gravitas which a partner in a major law firm acquires. The fact that he used to be my articled clerk (in the days before training contracts) provides an additional interest, at least for me!
• Secondly, Millnet is delighted to join the e-Disclosure Information Project. The sharp eyed among you may have already noticed that our logo is up on the project site. Set up by Chris Dale some years ago, Chris by himself and through the project has become the leading UK based commentator on the world of e-disclosure. In fact, of course, he is more than that as he is regularly sought out as a speaker at international and national conferences and his advice is also sought by judges and lawyers alike. I look forward to working with Chris in the coming months to bring a greater understanding of the world of e-disclosure to our clients and their lawyers. Our aim is to ensure that the benefits of technology and the ways in which its use can make a lawyer a better lawyer for his/her client are better understood.

We are thrilled by both developments. They are evidence that my optimism for 2012 is well founded.

It is what getting into the groove is all about.

The promise of three sunny and cold days did not materialise, indeed a number of us found ourselves fogbound in London and/or Munich and/or were diverted via Nuremberg.  Not that it mattered in the end as we were soon cosily ensconced in a comfortable hotel with a good programme of talks and interesting one to one meetings with General Counsel from a variety of the largest companies in the world.The whole shebang was beautifully organised by Abby, Marija, Katie, Alex and others who bustled about ensuring that where meetings did not or could not take place the slots left vacant were filled with others or timings rearranged. Add to that an excellent dinner at what is said to be the oldest brewery in the world, the Weihenstephan at Freising founded in 1070 and the three days were a great success. I have to confess that my dinner companions would probably have preferred not to have had the famous Munich white sausage with sweet mustard Munchener Weisswurst mit Senf, which I pressed on them but they all appeared to enjoy the meat, dumplings and sauerkraut!

Last time we attended a similar conference some years ago the mood of the gathering was overly concerned with how lawyers’ fees might be reduced, but the vibes from this conference were much more upbeat.

In no particular order, I noted:

• Interest in how the first year of PD 31 B and the Electronic Documents Questionnaire were working.
• Use of social media was on the rise and companies were keen to discuss how this should be managed. The old chestnut of who owns the names on an employee’s LinkedIn account came up again and again. I have written about this before.
• Third Party Litigation Funding was discussed particularly after the announcement that Investec has entered the market.
• Litigation costs were an ever present issue.
• Predictive coding was the hot topic.

I have complained before that jargon often intrudes between the lawyers and an understanding of our industry. I believe that “predictive coding” is fast becoming jargon and I prefer the admittedly clumsier and less elegant phrase, technology assisted document review (“TADR”). It seems to me that TADR describes exactly what is going on in the process whereas predictive coding tends to sound rather like having your fortune told at a fairground. We all know (at least I think we do) that one of the things lawyers hate about technology is the fear of losing control of their documents and anything which smacks of magic is likely to frighten them away. TADR is easy to understand as a concept and if you want to know more about the intricacies of the process there are a number of providers who will happily tell you. I have been asked to talk to a senior in house lawyer on a lawyer to lawyer basis to discuss the pros and cons of TADR and I hope that I will not allow the words “ predictive coding” to pass my lips other than to explain that it is what techies call TADR! Incidentally, I am not sure what other technologies exist in the current marketplace for TADR but those who had heard of TADR were aware of the two with which I am familiar, namely Equivio Relevance and Relativity’s Assisted Review (well done kCura for getting the word “assisted” into the name!)

All in all, it was a very positive conference which might be characterised by the delegate who said to me that she had now accepted that electronic discovery/disclosure was not something to be afraid of but rather was something which was likely to be present in any piece of contentious work, which she and her client needed to consider and understand and which, in the right hands, can be made to work for the benefit of the client.

A large Stein of Weissbier to that! Munich likes you – Munich mag dich – as the city’s motto has it.

Photo Munich Justizpalast, 19th cent. (Wikimedia Commons)

Even the UK has 150,000 lawyers. I find it hard to believe that we in this country have so many. We have 25% of the number of lawyers in India, a country with a population which is 20 times larger than our own. The truly amazing figures continue. Whereas there are approximately 8-10,000 law graduates coming into the profession in England and Wales each year and about 30,000 in the US, the figure for India is over 60,000, every year!

No wonder there is a shortage of training contracts!

I am not sure that there is any particular moral to be extracted from the figures but in thinking about morals in general I remembered the vivid stories with a definite moral message apparently written by a Greek slave called Aesop and known to all as Aesop’s Fables. 

Actually, there is considerable doubt whether Aesop was a Greek as some people think his name is a corruption of the Greek word for Ethiopia!

Wherever he came from, most people today are familiar with the stories of the tortoise and the hare, the boy who cried wolf or the ant and the grasshopper but what I find fascinating is that the stories were not in fact written down until some centuries after Aesop’s presumed death around 600 BC. In much the same way, the writings of Buddha, who lived at roughly the same time, were not written down at the time so there is no way of knowing who influenced whom or whose writings came first!

Which brings me to a delightful report in Science Daily Scanner Spies Document Secrets (brought to my attention by the Oxford Alumni email service) about a portable multi spectral scanner recently developed at the University of Oxford’s Faculty of Classics. The scanner was developed for imaging ancient papyri and the technology has been used successfully to scan, restore and archive over a quarter of a million historically significant manuscripts. Lawyers are occasionally asked to retrieve and examine documents which are old (not to say ancient) and in poor condition. I recall an instance where we had to spend weeks in one of the republics of the former Soviet Union engaged in scanning and coding old documents and mud stained drawings in relation to a large construction project where a dispute had arisen. It is truly staggering how many cups of coffee (I have no information about the vodka, possibly because it leaves little or no mark) come to be spilled over vital drawings during the course of a normal construction project.

As there are so many new entrants into the legal profession around the world, many of whom just will not get training contracts or ultimately jobs as qualified lawyers, there may be mileage in at least a few of them applying to universities for research posts or software companies for development jobs with the aim of finding a tool to overcome the problem of the “damaged” electronic document.

Is the Oxford scanner the next weapon in the litigator’s armoury? Probably not, although optimism has been expressed by Paul Westwood, MD of Forensic Document Services in Asia that the scanner could be used to analyse “crime scene samples such as countered and altered documents as well as documents bearing erased or faded entries and signatures.”

Will such innovations provide employment opportunities for a potential 26 million lawyers in the world (if the lawyer to general population ratio were to become like that of the US )?  We will have to wait and see!

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

A few weeeks back, at a time when some 40 million users of BlackBerries around the world from Europe to Asia and North America were incensed not so much by the failure of service provided by Canada’s RIM (Research in Motion) but by their obstinate refusal to tell their customers what was going on, it was little comfort to be reminded by numerous emails (if you could receive them) of a Ronnie Corbett sketch on the BBC’s One Ronnie Show, which memorably starts with his complaint that “My Blackberry is not working.”

While that fiasco will not have done anything to boost the standing of RIM in the business world (I note that since service has been restored there has been no meaningful apology or explanation and no discussion of compensation), the lack of service meant that I was behind the ‘curve’ when it came to a sudden outpouring of judicial pronouncements on subjects as wide ranging as the future of the internet, the Human Rights Act and the European Court to feminism in the courts.

All of this without so much as a judgment! All the comments were made in extra-curricular speeches made by inter alia the Lord Chief Justice, the Master of the Rolls and the only female Supreme Court Justice, Baroness Hale.

The chronology is unimportant but I think that Lord Neuberger was first out of the traps with his High Sheriff’s Lecture in Leeds in mid October entitled “Justice in a time of economic crisis and in the age of the internet.”

While the MR laments that even the newly created Supreme Court which requires all papers to be lodged electronically, still stipulates that the court be provided with paper copies, Lord Neuberger says we must all think about how technology can improve the court processes. After all, he says, it seems inconceivable these days that we should expect paper bundles, paper authorities and photocopies of legal texts. Quite so! But if I may be so bold as to disagree with the Master of the Rolls he then appears to perpetuate the view that technology has caused the problems which it will solve; “IT will often solve the problem it creates.” I assume he is referring to disclosure but, if so, this is a problem created by our rules of procedure and not by IT which has latterly come to the rescue of beleaguered litigators by providing cost effective and speedy solutions to their disclosure dilemmas.

Having said that, I agree that thought must be given to changing the established procedure in this electronic age if we are to reduce still further the cost of litigation and speed it up. Maybe the menu options suggested by Rupert Jackson are but the first step!

How refreshing to have a senior judge air his opinions on matters which continue to be of grave concern to the users of the courts.

The trend continued with Baroness Hale’s comments on feminist judgments. Lady Hale is booked to give the inaugural High Sheriff’s lecture at the University of East Anglia in Norwich in February 2012 so I will reserve comments on her views until I have heard them in greater detail and in person!

His Honour Judge Simon Brown QC kindly alerted me to the speech by Mr Justice Vos entitled “The role of judges in the success of UK PLC”.  Mr Justice Vos’s KPMG lecture seeks to place in context the role which judges and the law can and do play in the promotion of business for this country. A supporter of the Woolf reforms, he admits that “I have never thought they went far enough.”

The judge talks about changes to our legal system in matters such as pleadings and the length of trials but it is his comments on technology and the uses to which it can be put which I want to highlight. They are worth reproducing in full:

I continue to advocate the more efficient and extensive use of IT, and of electronic issue and handling processes. At the moment, IT is used as an add-on to the paper based systems. The effect is that everything is duplicated. We are always enjoined at the bottom of emails to “Save paper” “Think before you print”, but how many of us actually do think about what they print. And how many of us change our working processes completely to take account of the fact that everything should be on the computer and can be stored permanently in electronic form. 

(a) I always ask counsel for all the main documents in the case by email. I rarely get them – sometimes it is hard enough to obtain the skeletons in soft form. 

(b) I always use a computer in court, but many judges do not. We should work towards that being the norm. It makes judgment writing twice as fast. 

(c) The electronic filing of court documents should, on any bass, become the norm. how absurd is it for solicitors to prepare all their documents on a computer system, print them out, file them at court, and then only send them by email when specifically asked?

Any conspiracy theorists out there will have to concede that the conspiracy has failed. The judges are being heard and if you want to know what the Lord Chief Justice had to say about the Human Rights Act you can read it here:  Sound Judgements, The Telegraph, 2oth October, 2011.

You can read all about the rest here and who knows, you may feel minded to comment below! I hope so.