I suspect that the owners of Kodak are ruefully aware of this today as I read that the company has filed for Chapter 11 protection from bankruptcy in the US with liabilities exceeding assets by a staggering $1.65 billion. This does not necessarily mean the end of Kodak as a business but it is a sad day when the inventor of that ubiquitous camera, the box Brownie, loses its way so dramatically. Millions of people will remember the Brownie and I am told that even Neil Armstrong took photos on the moon with one.

Kodak almost got it right, as it astutely anticipated the advent of digital photography but then failed to foresee the rise of the likes of Facebook and other sites where photos can be viewed and shared resulting in the collapse of the market for printing photographs. Effectively Kodak was lost once someone worked out how to plug a camera into a computer and share and display photographs without the need to print them off and stick them in an album.

Despite the fact that I bought a roll of film in the past week (24 exposure and black and white, if you must know) and can look forward to slotting the capsule into a camera and pulling the bit of film hanging out of the end across the aperture to fix onto the roller on the other side just like we used to do, I have to accept that this procedure is not the way of the future. No more snapping the back of the camera shut and checking that the number of exposures appears in the counter before pointing and clicking and winding on. No more keen anticipation while you wait for the pictures to be developed and returned (but possibly also no more disappointment when you find that the film was over exposed or did not take the pictures at all!)

The world of handling disclosure has been going through the same game changing process for some time now. It is rare now to come across a litigation lawyer with no appreciation that life has changed and that expensive and time consuming linear human review is no longer the gold standard for modern document review. Just as photography has changed and digital is now the name of the game, so it is now imperative that lawyers at least consider ways in which technology may be able to assist in the disclosure process. There is a lot of technology out there, and its use or possibly the way in which it is used will not always be appropriate, but not to have an understanding of what can be done and what is available and not to consider how the technology may help is today as inappropriate as it was for the army commanders Lucan, Raglan and Cardigan to expect the Light Brigade to charge the Russian guns in Tennyson’s “Valley of Death” at the Battle of Balaclava in 1854.

Life has changed. Whether it is for the better, we will have to wait and see but there is a growing body of evidence and case law which suggests that it is and hard evidence exists that time and money is being saved in the process.

What would our wise Brown Owl make of all this? Though I tend to think of little brown chocolate biscuit cakes when people talk about brownies, of course the real Brownies are little girls who troop off to meet their leader Brown Owl one night of the week as a precursor to becoming Girl Guides. They used to wear brown uniforms festooned with badges gained as a result of different achievements and had a great fun time by all accounts. But Brown Owl would be the first to recognise that times have changed in that the main uniform now appears to be bright yellow according to the brownie website.  It cannot be long before someone demands that the Brownies be known by another name; my guess is though that, being a wise bird, Brown Owl will take it all in her stride. Her advice to her charges, to the likes of Kodak and to any reluctant lawyers out there cleaving to the old ways of paper review, is obviously “adapt or die.”

It could not be simpler than that!

Photo: Brown owl on Public Domain Images

On the first day of Christmas, my true love gave to me…
A Partridge in a Pear Tree.

The second verse:

On the second day of Christmas, my true love gave to me…
Two turtle doves
And a partridge in a pear tree.

…and so forth, until the last verse:

On the twelfth day of Christmas, my true love gave to me…
12 Drummers Drumming
11 Pipers Piping
10 Lords-a-Leaping
9 Ladies Dancing
8 Maids-a-Milking
7 Swans-a-Swimming
6 Geese-a-Laying
5 Gold Rings
4 Colly Birds
3 French Hens
2 Turtle Doves
And a Partridge in a Pear Tree.

But what does it mean?

Theories abound but, in the light hearted spirit with which this blog is associated, together with yet more unsubtle hints about ways in which the legal profession might be encouraged to tackle the issues of electronic disclosure, I thought I would attempt my own explanation of the song. The origin of the song is obscure, so I will not have to apologise to anyone for mangling their original ideas!

You need to understand that the singer is a lawyer who is the lucky recipient of “gifts” from the bringer of Christmas cheer, a potential new client Mr Truelove, who is keen to ensure that his chosen lawyer understands the rudiments of e-disclosure.

A Partridge in a Pear Tree: this must mean a general willingness to consider techniques which may assist in making the process of litigation more cost effective for the client while at the same time allowing the lawyer to add value by demonstrating expertise not only in the law but also in the process of getting at the issues and achieving a good result for the client Mr Truelove.

Two Turtle Doves: Knowledge of at least two e-discovery providers so that when pressed, the lawyer may know to whom to turn. It is generally too late to start this exercise by the time the case has begun.

Three French Hens: No jokes here about “les grenouilles” as I do not intend to stoop so low as to metaphorically kick a man (La France?) when he or she is down. Mr Truelove regards it as essential that his chosen law firm is familiar with some of the major concepts behind e-disclosure. There are more than three but how about (1) linear review is ruinously expensive; (2) electronic documents should not be printed out: and (3) e-disclosure providers should be regarded as experts in their field (which they are) in the same way as Counsel or a medical expert.

Four Colly Birds: At least once a month keep up to date with general developments in the field of e-discovery by looking at relevant and helpful sources of information, eg: blogs (of course!!), The Society of Computers and Law, articles written by your peers and once a year, if not more, attendance at a conference or training session on the subject. Remember that Jackson is urging those involved in training the profession to start offering training to lawyers. How long before it becomes compulsory?

Five Gold Rings: The gold standard for e-disclosure: be familiar with Part 31 CPR, the Practice Direction 31B, the Electronic Documents Questionnaire (not used nearly enough yet), the cases (there are not that many, see resources section) and the changes to Rule 31 proposed by Lord Justice Jackson and which may well become law by October 2012.

Six Geese-a-laying: As the football fans amongst you would say, we are now getting to the results section. The fruits of adherence to the first five stages should begin to become clear in terms of the strategy to be adopted in the case regarding the documents involved and where costs can be saved. The number of advantages perceived at this stage is irrelevant as long as they appear! They will.

Seven Swans-a-Swimming: There is always a lot of work to be done behind the scenes (under the water) to ensure that the litigation runs smoothly or at least appears to do so. Important matters include an understanding of the objectives and the adoption of a suitable workflow to ensure that those objectives are achieved. Also it is vital to work closely with your provider of litigation services to ensure the project remains on track.

Eight Maids-a-Milking: Do you remember the cartoon of the claimant standing at the head of the cow and the defendant at the tail both pulling like mad while the lawyer sits calmly on his stool milking the animal? Enough said! Lawyers can and do of course make good money out of litigation, and it is right that they should do so, but clients will not be too happy if they feel they are being milked. An eye on costs savings and better and more efficient ways of delivering the service will always be appreciated.

Nine Ladies dancing: The overall result is a success, the client is happy and the project has been brought to a positive conclusion. What is there not to dance about?

Ten Lords-a-Leaping: I suppose that the successful use of e-disclosure techniques may mean that their Lordships, as they used to be known or the Supreme Court Justices as they are now known in our determinedly more egalitarian times, are less likely to be required. Congratulations by the way to the two new appointees Lords Reed and Carnwath who will soon be joined by Lord Sumption once he is free of the Russian oligarchs.

Eleven Pipers Piping: General celebrations for a job well done!

Twelve Drummers Drumming: Not so much a celebration but a quiet recognition amongst your clients and your peers that you are a serious force to be reckoned with. New jobs will certainly follow once you have proved your worth. Who knows, your opponents may also be willing to endorse your efforts and send you instructions in the future when they acknowledge that you did a very good job. As good a way as any to drum up new work!

The Twelve Days of Christmas traditionally end on the Feast of Epiphany (January 6th) and I am hoping that means that I need not publish another post before then!

A very Happy Christmas to you all!

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.

1. Whether you call it inshoring, outshoring, outsourcing, northshoring or just stick with legal process outsourcing or LPO, it is likely that the process will continue to be in the news in 2012. There is so much difference between the rates of pay of a lawyer in Manila, Bangalore and Cape Town on the one hand and London or New York on the other that Managing Partners are bound to sit up and take notice. Add Belfast, Middlesbrough or Tunbridge Wells to the mix and Managing Partners are likely to find the whole concept irresistible. However, what happens if things go wrong? Examples might include that the quoted cost is not all inclusive of the benefits which have to be paid on top of salary in other jurisdictions, or that the quality is not as expected. English language skills may not be up to the expected standards and fluency may be way off. While accepting the benefits of outsourcing, 2012 may well be the year of a high profile instance of something coming badly unstuck.
2. A non lawyer (actually a PR consultant) said to me the other day that Third Party Litigation Funders (TPLF) had not yet had their day. I agree, but I think that TPLF is here to stay. Those I know something about are very busy and others are unable to raise the needed funds. Clearly there is no uniformity in the market. 2012 could be the year that we see a greater acceptance of TPLF in litigation, which does not of course rule out a spectacular collapse of a funder through backing the wrong case(s).
3. Technology Assisted Document Review (TADR) (or predictive coding as the technologists call it) is a hot topic. We have worked on a number of cases recently where TADR has been used. Not all have been entirely successful but the balance is overwhelmingly in favour of using this technology to reduce the costs of litigation. I predict a steady increase in its use.
4. Social media is much in the news. There is much one could say about the whole area but my prediction for 2012 in this area is that there will be the first decided case in this jurisdiction which mirrors the US District Courts’ rulings that access to social media sites and the relevant logins and passwords be given to the opposing party as part of the process of disclosure.
5. A long shot this, but 2012 will see the whole issue of data privacy and the transfer of data between the EU and the US take centre stage. Revisions to the EU Data Protection Directive due in 2012 may be the catalyst. What price safe harbour then?

• 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!

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.

“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.

I remember a time when there was not an all graduate entry into the profession and some fine lawyers were produced by that system who never felt the lack of a university degree in law, science, classics or textile design. Then the Law Society decided that too many people were coming into the profession and, under the guise of improving standards, insisted that there should be an all graduate entry. Of course at the time university was largely free and funded by the state and governments decided that instead of the 8 to 10% who went to university when I did, this figure should be over 50%.

It was never going to be easy for any profession to absorb all the people who wanted to become lawyers in just the same way that it was never going to be possible for the state to continue to fund the fees of all those who were encouraged to go to university, and so it has come to pass that bright intelligent youngsters who are desperate to become lawyers are left high and dry by the system which encouraged them in the first place.

What is going to happen in the future and if you were asked, like Richard Susskind, where would you put your money if asked to invest in a structure for lawyers in the future? What will the likes of Irwin Mitchell and others do with any money they are able to attract by virtue of the new alternative business structures introduced by the Legal Services Act and due to come into force whenever the Government gets round to making the necessary arrangements?

I mentioned the missing link in my last post and the recent development in the LPO industry where the new kid on the block New Galexy Legal Process Outsourcing has appeared.

But before I get to the missing link, have a look with me at the state of the litigation market. This is not intended to be a comprehensive survey but an informed impression. In any event it is my view!

Among the young crop of lawyers it is becoming increasingly difficult to identify how the youngsters are going to turn out. I say that, not because they are not a bright bunch (they clearly are) but how many of them want to become embroiled in a law firm of the traditional type? How many actually want to become equity partners always assuming that they are able to qualify in the first place?

Will there even be a job for litigators in the future within the structure of a traditional law firm and would you invest your money in a litigation department.

Now there are always exceptions to every rule but the trends are not encouraging. I recall that lawyers used to carry out the majority of tax litigation when I first qualified, an area which today is almost exclusively the province of the accountants eg PwC Legal.

In my own “second career” it is plain that e-disclosure is becoming a much more main stream activity and in general lawyers are not good at it and many do not “get it”.

Why should clients continue to pay for lawyers to do something at which they are not very good and where some at least appear not to want to get their hands dirty?

Why not go to a discovery expert? There are lawyers out there (sometimes called discovery counsel) who are making an excellent living providing the service to clients already and effectively sweeping up after the litigation lawyer.

I recall Susskind saying, to my surprise, that he foresaw that a well run set of barristers’ chambers would be an entity which he thought might survive over the traditional law firm (at any rate one which did litigation) and that it was the sort of entity in which he might invest.

As I understood his thesis it was that a set of clever barristers (learned in the law) and with low shared overheads might carry out the litigation process from start to finish. They would need to employ a clerk of some sort, which of course they already do, to book appointments etc but with direct access why should a client go elsewhere? If the set also employed discovery counsel or a firm skilled in the art of e-disclosure, they would be set up to challenge even the strongest litigation firms. After all, they already do the advocacy, they know the law, clients can go to them direct and because of the way they are organised they are low cost and efficient to run.

I am not sure whether the law currently demands that a solicitor must issue a claim form but that would be an easy restriction to circumvent or abolish. A formal system such as that in Spain has a well functioning profession of procuradores who handle that type of work for a fee.

Add to that, the missing link of a company skilled in e-disclosure and the barristers are set!

There have been reports recently of remains thought to be nearly 2 million years old found in the caves of Malapa some 30 miles north west of Johannesburg. The discovery in the South African caves of what is called Australopithecus sediba is being hailed as the discovery of the missing link. According to reports the creature combined striking features of apes and humans with its dextrous hand which it is thought may have fashioned tools and been used to climb trees. Other features included a small brain similar in shape to a human brain, an evolved hand with an elongated human-like thumb and a “modern” pelvis but also a foot and ankle shape never seen in any human species, thus combining human and ape like features in one anatomical package.

Could this be the link we have all been looking for? And could a combination of a set of barristers and an expert firm be the litigation stars of the future combining, as they would, features of both litigators and e-disclosure experts?

I think I may have found the Missing Link by which I mean that the star of the future may well not be the bright litigation lawyer with a flair/knack/talent for litigation but the e-disclosure expert.

And as the cartoon set of legal disclaimers at a law conference would have it (and this happened at ILTA) the announcer concluded that “No lawyer was harmed in the making of this commercial!”

Photo credit: Image compiled by Peter Schmid courtesy of Lee R. Berger, University of the Witwatersrand. Used under Attribution-Share Alike 3.0 Unported licence.

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.

The Vagabonds Act of 1383 has a claim to the title of the oldest Act of Parliament but the one I like best as an adopted son of Norfolk is the Act entitled the Taking of Apprentices for Worsteds in the County of Norfolk 1497.

Legislation had strange names and wonderful titles in the days before the weight of legislation churned out by Parliament overwhelmed us all!

Even the 1972 Island of Rockall Act evokes an earlier imperial era being an “Act to incorporate that part of Her Majesty’s dominions known as the Island of Rockall into the United Kingdom”, legislation designed to protect the Rock from the predations of the Irish and Iceland.

How dreary then that the bill (doubtless destined to become law) to introduce many of the reforms suggested by Lord Justice Jackson in his report on the cost of civil litigation should be buried in the prosaic Legal Aid, Sentencing and Punishment of Offenders Bill 2011. The bill has received a second reading and, assuming it becomes law, is intended to take effect from October 2012.

I mention this only to alert anyone reading these words to the fact that Jackson has not been forgotten even in these days of riot, deficit and financial upheaval.

In the draft bill, designed to cut 10% of the legal aid bill as a contribution of some £300 million to cutting the deficit, and tucked away between clauses 41 and 53, are provisions which will outlaw the recoverability of success fees and the premiums paid for after the event insurance.

On a more positive note (should you think that those provisions amount to a less than positive outcome for claimants) is the momentum which appears to be behind other Jackson inspired reforms of civil litigation.

Typing this as I prepare to fly out to Nashville for the ILTA 2011 Conference, I have no time to go in to this in detail but can do no better than to recommend a summary of the current state of play written by Chris Dale (@chrisdaleoxford)  following the recent e-Discovery conference in Singapore: Lord Justice Jackson in Singapore: Piloting Civil Justice Reforms, e-Discovery Information Project blog, 11th Aug, 2011.

Of particular note are firstly the list of Lord Justice Jackson’s proposed menu options in relation to orders for disclosure and secondly the 16 causes of the high cost of civil litigation. Whatever you take from the post, I commend the whole piece to you all.

Normal service will be resumed in September after my return from Nashville and the August Bank Holiday. As and when time permits between family births, weddings and various other significant celebrations, I will report on ILTA at that stage.

In the meantime bring yourselves up to date with proceedings in Asia!

Waste #10 Utilising the Wrong Level of Staff

One response from law firms to the pressure on hourly rate charges has been to pass document management and first pass document review down to the most junior and lowest-cost staff possible.

We have seen three approaches:

• Increased used of paralegals, administrative staff and trainee lawyers.
• Some law firms have established ‘central’ in-house teams typically in lower-cost UK or international locations (examples include Addleshaws (Manchester), Clifford Chance (India), Herbert Smith (Belfast).
• Outsource often involving TUPE arrangements and long term contractual undertakings to one of the LPO firms such as Integreon, Exigent etc.

Passing certain aspects of the work down to lower hourly rate staff, whether in-house or outsourcing, tends to ignore the opportunity to leverage electronic disclosure technology, which would allow a far larger proportion of the budget to be allocated to the most senior and experienced lawyers (i.e. those with higher charge rates) .

Probably the best example of this approach is to involve senior lawyers or even partners on the initial document review through use of the advanced ‘expert-led’ technologies highlight in an earlier article in this series [Waste #6. Failure to use advanced search/review technologies, 5th July, 2011]. The objective is to dramatically reduce the number of review hours which would otherwise be required (by paralegals, junior lawyers, etc.) in the absence of expert input  at the outset.

Previous articles in this series …