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.

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)

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!

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

It was one of the bloodiest battles of the war. Official estimates put American dead at 19000 with over 80000 casualties, and German casualties were said to be between 60000 and 100000.

Dramatised in the 1965 film Battle of the Bulge starring Henry Fonda, Robert Shaw, Telly Savalas, Dana Andrews and Charles Bronson, the allied victory marked the beginning of the end of the German war effort as their reserves had been depleted and the Luftwaffe smashed.

In the context of the litigation process, there is a similar battle going on. Estimates vary, but on assessments of costs, the largest item is still, by some margin, preparation and disclosure, which creates a bulge in the process equivalent to roughly 40% of the costs of the whole. Based on that approximate figure you can readily see why every effort is being made to reduce this element of cost because in doing so, the total cost of litigation will be substantially and disproportionately diminished.

Commentators on the e-discovery/e-disclosure scene argue about whether technology has created the problem or whether technology now provides the solution. I am firmly of the belief that disclosure is a legal problem which has always existed in common law jurisdictions and that technology provides a mechanism whereby the problem may be solved. How you best solve the problem of what to collect and how to cull it all down so that the whole exercise remain properly proportionate depends on the particular case, but it would be quite wrong in my view to believe that the technology created the problem in the first place. Rules of Court have always required the parties to disclose the “relevant” documents and technology now provides a means where that exercise may be tailored to the particular circumstances so that the overall search and disclosure is proportionate to the sums involved and the ease of recovery.

So is “beware the bulge” going to become the new litigation battle cry? I suspect not although I suppose anything might emerge judging by the way we are assailed regularly by such weighty matters in the media about as talking dogs or surveys on some trivial subject.

In a survey of over 2000 people carried out for office supplies firm Viking and reported in People Management, 56% of those asked said they had a colleague with a really messy desk.  Accountants are said to be the messiest at 64% ‘messy’ with lawyers hard on their heels with 61%, while estate agents and those oft vilified bankers only managed 33% and 35% respectively, making them the tidiest professions. [Accountants and lawyers have the messiest desks, People management, 4th October 2011]

The survey was no doubt intended seriously because it is said that germs hidden on work desks cause winter illnesses with swabs of more than 300 desks revealing the presence of bacillus on 90% of surfaces, staphylococcus on 60% and micrococcus 50%. All are known to cause illness. One of the major causes of all this microscopic bacteria is people eating at their desks, so if you are sitting next to someone who has just come back with a particularly spicy takeaway, you may find that you will take away more than you bargained for when you arrived at work this morning.

Office supplies firms such as Viking will no doubt offer to clean up behind the messiest of us in an effort to ensure that we do not all succumb to some nasty infection.

Is it too much to hope that cleaning up your data will lead to a healthier and less bulgy disclosure, making the courts and the clients healthier (or less strained and not so poor) than before?

Photo credit: British Sherman tank, Namur, December 1943 [Wikimedia Commons]

In the early days of electronic disclosure/discovery, addressing the requirement to review and disclose large volumes of electronic documents was time consuming and the technologies available at the time were of marginal assistance to lawyers.

To illustrate how far the technology has advanced and costs fallen, I will use the example of one of Millnet’s earliest large scale electronic disclosure engagements, which was assisting a law firm client on one of the largest matters then seen. We were initially engaged in 2002 to process approximately 100GB of predominantly email data and to present the processed data in an online review platform. We took approximately 12 months to complete the document collection, processing and loading phase and the lawyers took a further 2-3 years to review everything. Millnet’s fees were upwards of £1 million over a 3 year period (with most of the earliest electronic processing being completed on a per page basis because everyone was used to paying for photocopying on this basis).

Fast forward to 2011. Were we to be engaged on an identical project today, we would have the entire 100GB of data processed in a matter of hours and available in a far more efficient and sophisticated online review database within 48 hours at a cost of circa £50K.

However, whilst the improvement in technology over the past decade has been exponential and the costs associated with these technologies have plummeted, the rate of adoption of electronic disclosure techniques by lawyers in the UK (i.e. not just UK law firms) has lagged.

We come across examples all the time and I present here (and in subsequent posts) my own ‘Top 10’ of current work practices which are inefficient and which can be addressed via the intelligent application of readily available electronic disclosure technology and expertise. Here is the first -

Waste #1 – Printing Electronic Documents

It has become a truism to state that a large proportion of documents of potential relevance in disputes will have been originated in electronic form. This is especially true where emails and their attachments are the key evidence in a dispute. In our experience, the most commonly cited reasons why a large proportion of lawyers continue to opt to print electronic documents include:  

• They find it preferable / more efficient to ‘read’ documents in paper form.
• They can delegate the sorting, copying and other ‘paper shuffling’ tasks to existing ‘free’ or low cost internal resources such as secretaries, facilities staff, paralegals and trainees.
• They can maintain a higher degree of control over the documentation for a matter because they don’t need to involve IT or 3rd party experts such as Millnet.
• By working with paper they do not need to move between different applications such as email, Excel, Word, PowerPoint etc and they can read documents that they may not otherwise be able to access if they don’t have the relevant software (assuming that whoever printed the documents did have the software).
• There is sometimes a perception that it is more secure working with hard copy documents.
• Lawyers are generally better able to scope the costs associated with review and disclosure of documents in hard copy form.
• There is or has been a perception that clients understand that lawyers work with paper and the inefficiencies involved are therefore ‘justifiable’ within the overall context of charges relating to a particular dispute. That is, there has not been the incentive to be efficient (or deterrent to inefficiency).

The inefficiencies / costs associated with printing electronic documents are particularly apparent where there the documents are received in a ‘raw’ form. For instance, we commonly receive requests to print multiple email ‘inboxes’ for individuals of relevance to a matter.

It will almost always be more efficient and cost effective to work with electronic documents in electronic format. To the extent that the lawyers and other parties such as experts, counsel etc find it less efficient to read documents on a screen this needs to be weighed against the inherent benefits of working with electronic documents which include:

• Searching – from simple keywords through to highly complex and targeted queries involving logical operators such as AND, OR and NOT.
• Sorting in a myriad of different ways at the click of a button using fields of metadata such as dates, authors, recipients and document type extracted automatically from the electronic documents.
• Web based access to the documents to facilitate remote working and collaboration across offices and with 3rd parties such as experts / counsel and the end client.
• If collected and processed correctly electronic documents retain the original structure and source information which is often of relevance and is typically disclosed in accordance with Practice Direction 31B.
• Electronic tagging / classification of documents is more efficient and flexible than the use of ‘post it’ notes in lever arch files.

We calculate that it costs between 5-10 times more to print out and work with hard copy documents as compared to working with documents in electronic form – subject to the caveat that electronic disclosure technology is also required to realise the benefits.  This is a subject I shall return to in Waste #2.

Polaroid used to be the film company of the future, famous for its instant film cameras.

Its eventual bankruptcy in 2008 was widely attributed to the failure by management to anticipate the effect of the advent of digital photography on its film business.

And Stefani? What is her role in all this? Those of you who are well versed in such things will have immediately recognised that Stefani is better known as Lady Gaga and it is she who is now Creative Director of the company and said to be the “new face” of Polaroid.

Let’s hope she succeeds because Polaroid is not the only market leading company to come a cropper. In the 1990s Helen Steel and David Morris distributed leaflets asking what was wrong with Macdonalds and were taken to court by the company claiming defamation. Although Macdonalds won damages, they spent over 7 years in litigation and they ended up millions poorer and with beef burger all over their corporate face. It is believed that as against £40,000 damages awarded to the company in the Court of Appeal (reduced from £60,000 at first instance) they spent over £10 million in legal costs and endured years of poor publicity. To add insult to injury, the defendants made it clear they could not and would not pay and the company soon decided not to pursue them for the money.

I fell to thinking about these two stories as a result of yet another article in The Economist [A less gilded future, The Economist, 5th May, 2011]. There seems to be a trend towards increasing coverage of issues relating to e-discovery and law firm related articles in this magazine over the past 12 months or so, and this prompted me to look up the readership demographics to see who was actually taking onboard the information provided by the paper. It seems that the Economist has circa 1.4 million readers worldwide and readers tend to be senior business people (39% C-Suite, 48% Director or higher). It tends to be a touch US centric but Autonomy and Kroll are among the big consulting firms that regularly advertise, presumably because they know they will reach this audience of CFOs/CEOs/CIOs.

This latest article postulates that while the legal world has undergone a recession like everyone else it has also undergone structural change. The thrust appears to be that ever increasing profits at law firms are no longer guaranteed and nor is their very survival.

The evidence is not hard to find. The article itself cites the collapse of US law firm Howrey and in this country last year we saw the demise of Halliwells. In recent years well known names such as Frere Cholmeley and Oppenheimers have disappeared.

This year will see the start of new regimes for law firms under the provisions of the Legal Services Act and we will all be getting used to new entities called Alternative Business Structures [see  Nailed to the perch, 4th May, 2011] .

I had an intriguing conversation last week about how easily law firms would attract outside investors as envisaged by the Legal Services Act (and Messrs. Irwin Mitchell). I have to admit I was not persuaded; I wondered what I would do if I had £50 million to invest and came to the conclusion that I would not necessarily be looking for a law firm as a home for my money. Superficially attractive as the large well known firms may appear, they are really only as good as their last transaction and everything pretty well depends on the stars being retained to do more of the same.

So, on the assumption that I were to be tempted to invest in a law firm what would I look for?

I would certainly start with a group of high quality lawyers. It is often said that expertise is taken for granted these days but I would not want to invest without being reassured that the lawyers were of the highest intellectual quality and had an element of entrepreneurial skill as well.

I would also look for a tried and tested model. Business is littered with examples of companies branching out in new and untried directions and coming unstuck. Coca Cola got into all kinds of trouble when it tried to market a different formula based Coke and I have already mentioned the example of Polaroid who failed because they could not find a way to make money out of digital technology when they were kings of film. After all, the switch to digital would have meant that they would have had to abandon a successful revenue stream in favour of something untested but which would effectively pit them against themselves.

Good corporate governance is also key to a successful enterprise in my view. Without that as a base, it is difficult to see how long an enterprise can be successful.

Of course firms will need to be approachable and run a good operation. They also need to speak plain English (and other languages as required) and should not descend into technospeak. Being able to understand and use Latin tags used to be the hallmark of a successful law firm. No longer! Clients want to understand what their lawyers are talking about and the same is true of those who want to sell ancillary services such as litigation support!

A law firm must be efficiently run, reliable, good at its job and give value for money otherwise clients will try another.

So, you may ask, in which law firm would I place my £50 million if I were so lucky to have that amount of spare cash? Not surprisingly, I am not going to be caught on that particular hook because it is almost impossible to speculate without giving offence to one firm or another. But what is clear is that a law firm which does not offer its clients a good value, highly expert and relevant service, will ultimately be a poor investment for third parties and its own partners and indeed may not survive in the present climate.

Just think that we are now in the era of the super injunction. It is almost impossible to pick up a newspaper or listen to a news report or watch a podcast without tripping over the things! A year or two ago they were only news because they were new. Remember Trafigura? [King Charles and the Twitterati, 27th October, 2009] Back then you were not supposed to talk about them or even mention their existence. Nowadays our papers are full of pictures of Imogen Thomas, the girl at the centre of the row over the super injunction granted to a professional footballer, whose identity is well known to the Twitterati, but denied by the injunction to the rest of us with no time or inclination to wade through Twitter. Unfortunately for poor Imogen, the courts refused to protect her identity despite the order in favour of her alleged lover. I am not sure where that leaves consideration of her right to a private life but, for the time being, her friend’s identity is officially protected, and hers is not. (Something wrong here? – Ed)

Twitter is having a field day. It seems likely that it will so effectively undermine the terms of the injunction as to render the injunction and others like it entirely pointless.

In the latest twist, it has been reported that the footballer at the centre of this spat has asked the High Court for an order to search the emails and text messages of journalists at News Group Newspapers in an effort to show whether they have breached the terms of the injunction. It remains to be seen what the court will decide.

All of which goes to show that the world of litigation is changing rapidly and if, as a lawyer, you are not prepared to keep abreast of the changes and adapt accordingly, you run the very real risk of being left behind by your competitors and, in extreme cases, going out of business. It is unlikely to happen overnight, but the slippery downhill slide will be inexorable.

There may well be partners in law firms out there who have pound (or dollar) signs in their eyes, thinking that their firm is ripe for outside investment which will enable them to take off for the Bahamas and never come back. It is quite possible that some will get lucky but unless they have the likes of Stefani Joanne Angelina Germanotta on their side they would be ill advised to bank on it and would be better advised to look to the way their law firms are run and how they intend to deal with the changes which are being forced on them by changing circumstances, the loss of loyalty from clients and the ever present demands of technology.

Otherwise they may become the flash in the pan of 2011-2.

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.

I guess you could look at blogging in a similar way. Why, as a lawyer or barrister, throw yourself headfirst into the ragged gorge that is the internet?

I am aware of the growing attention that has been paid to blogging lawyers and barristers. So, what better than to write a blog on blogging! As social media platforms have seeped into our everyday lives – Facebook, LinkedIn, Youtube and Twitter for example – it has never been so easy to share opinions and advice with colleagues and the world at large.

Emma Barnett, in a recent article in The Sunday Telegraph, has pointed out that the days of one-way communication are over in corporate life, yet another article in the same paper reports that over 60 of the FTSE 100 companies have not yet taken advantage of social media. No doubt it is a similar situation in the legal world.

According to Hugo Parcell of Relationship Audits and Management, speaking on ‘The Use of Social Networking Sites for Business’, the advantages of legal blogging are:

1. Blogging allows law firms to engage with clients and the public on a personal level.
2. Blogs allow the sharing of valuable content.
3. Bloggers increase the profile of their firms in the marketplace.
4. Bloggers create networking opportunities and make a name for themselves. This gives them an advantage to someone who may rely just on LinkedIn, for instance.

In much the same vein Ben Whewey, writing in Legal Week a while back, asked if blogging can help your legal career, [Blogging - can it help your legal career? Legal Week, 21st Feb 2011] and the conclusion (based on the balance of comments posted) is a qualified yes.

This was borne out when I found myself in the company of a group of young litigation lawyers recently; the general view was that they were thoroughly enjoying the firm’s encouragement and the support provided when it came to blogging. The entire group had given it a go and plan to carry on doing so in the future.

Chris Dale in his blog [Blogging, Friending and Tweeting: what lawyers should and should not do, 1st April, 2011] also expresses support for the idea that law firms should be encouraging juniors and associates to blog.

We should probably give the young ones scope, to some extent, to fly with new ideas; the etiquette of everyday discourse is worth clinging on to; the basic tenets of old journalism and established marketing principles are important, but one must be flexible as new methods of publication come along. A lot of it comes down to common sense.

He cites a debate on Twitter questioning whether a junior or associate could be trusted to blog – the view was that you would not have such junior people flying the firm’s flag at a cocktail party, so why would you let them publish things in the firm’s name?  Chris Dale suggests that you have the wrong associates if you would not trust them at a party…

The debate ended with the sensible question “Why are we applying old rules to a new environment?” My view is that riding the juniors’ interest in new techniques is something which benefits the company or firm as well as the individual – provided that the rules and parameters are clearly defined.

This leads me finally to a very topical question; is blogging a trusted form of communication? And…

1. Who is going to take your blog seriously?
2. Who is going to read your blog?
3. To what extent are “serious clients” going to pay attention what their lawyers blog about?
4. What are the risks?
5. Is the bungee cord strong enough to hold you?

It may be stretching the point but I have reached the conclusion that blogging should be enjoyed and encouraged by the law firms as a positive aspect to a lawyer or barrister’s career and life. It is an up and coming and liberating method of communication.

The bungee cord question is a matter of best practice and proper safeguards. This is a topic which I look forward to discussing in my next blog.

Photo credit: Bungee jumping at night by Bill Morrow under Creative Commons  Attribution 2.0 Generic Licence

There are, out there, any number of learned and serious articles, blogs and tweets on all aspects of e-disclosure and some are even in the Smart e-Discovery blog! My purpose was slightly different! I thought there would be interest in the views of an experienced former litigator from one of the larger law firms who had migrated towards the delivery of services to lawyers in the e-disclosure field. I may be tempting fate but almost 150 posts later (and many more by my colleagues) we have a loyal readership both directly on the blog and also on Twitter.

Apart from that, I have enjoyed writing the posts and, sometimes, I have even enjoyed the comments which follow!

So today, I want to start on the subject of rats.

The newspapers and news feeds have been dominated in recent days by the Royal Wedding which, for once, knocked the ongoing conflict in Libya off the front pages to such an extent that the report that a recent raid had resulted in the death of one of Col Gadaffi’s sons was relegated to an inside page.

But what about the death of Osama bin Laden? Whatever the facts may be, I found the most extraordinary aspect of the reports was that President Obama could, in real time, watch the raid on the compound in Abottobad which resulted in the death of Osama bin Laden and three of his associates. Extraordinary because it is possible for the President to do that and extraordinary that only a couple of weeks ago I was writing about soldiers conducting wars from their desks! [The old order changeth, 27th April, 2011]

I was not going to write about rats, but today I sat in the sun in the park with a cup of soup next door to a rat. Now I know that it is said that in London you are never more than a few feet from a rat and this one was every bit as close to me as that. When I was in South America for the first time in the 1980s, I was tempted to try the Peruvian delicacy of cuy (guinea-pig), which may upset my sensitive reader, and when the cooked cuy duly arrived, it was stretched out on its back spread-eagled on a wooden board, head and all, teeth bared complete with accompanying vegetables.

My rat (I am not normally proprietorial about these rodents but this makes it clear which rat I am talking about) was lying on its back in the sun with its feet in the air. What amused me more than the fact of a rat lying in the sun on its back was not that it was dead (which it was) and that a dozen or so of the brightest coloured blue bottles were investigating the corpse, but the reaction of other people which ranged from the nervous giggle to the sideways glance to an all out scream and avoiding action as if the poor thing was about to spit poison at anyone who came within range.

The Black Death has more than once resulted in a major reduction in European population most recently in 1348 and 1665 and rats have always been associated with the carrying and spreading of disease. But this one was dead. As John Cleese would have said, “This rat is no more! He has ceased to be! He’s passed on! He’s expired and gone to meet his maker! He is an ex-rat!”

So, when I wrote the other day about the old order changing giving place to the new, I was further prompted to reflect on this phenomenon by the coverage given in recent weeks to the “accomplishments” of Yuri Gagarin and the first manned space flight in 1961. Connections between events are an endless source of fascination for me and the old order was shown to have changed dramatically by the achievements of one of the most eminent living Britons, as chronicled in a recent atricle in the Daily Telegraph by my friend, barrister John Bromley-Davenport [Sir Bernard Lovell: he knew the future was out of this world, The Telgraph, 19th April, 2011].

Sir Bernard Lovell is the father of radio astronomy who was responsible for the construction of the great telescope at Jodrell Bank in Cheshire. The telescope was used to track Gagarin’s flight being the only device in the world which could detect the carrier rocket or intercontinental ballistic missile! It was subsequently used to track all the great events of the space race including the first Moon landing in 1969 and Lovell was even asked to monitor the launch of Russian rockets during the Cuban missile crisis.

I knew what John meant in his choice of title -  “He knew the future was out of this world.”  Bernard Lovell is now in his late 90s and while his scientific achievements are immense, the last time I met him and talked to him in 2008 at a party for my mother’s 90^th birthday he was one of the most down to earth people imaginable.

My colleague James Moeskops is currently one third of the way through a series of 6 articles on the way in which the technology of Index Engines is changing the face of the way lawyers do discovery/disclosure [see We've got it taped #1 of 6, 14th April, 2011] but I want to leave you today with a thought which arises out of the Legal Services Act.

A recent article in The Lawyer  [Irwin Mitchell: we’ll float and take on the mid-tier,  25 April, 2011]  reports that Irwin Mitchell intends to convert to an alternative business structure and go head to head with mid tier corporate firms.

I have been surprised that not more is being made of the Legal Services Act which comes into force later this year but Irwin Mitchell seem determined to be in the vanguard of change. They talk about the “deconstruction of the law” and “trying to reduce it to an operational process.”

While it is uncertain whether the firm will go for an IPO or invite outside investment from a third party, it is clear that the firm intends to take to heart what Richard Susskind and others have been saying for some time. Firms which de-skill the process-driven parts of the legal process and offer the results to clients at a lower price than their competitors will gain an advantage in the marketplace over those who cling to outmoded ways of delivering the same at a vastly inflated price.

Electronic disclosure is part of the answer for litigation lawyers as I have argued for many months now and I was particularly pleased to be contacted (while writing this piece) by a law firm about conducting an in-house seminar on e-disclosure. The firm admits it is not well versed in the subject but its partners appear to have taken on board the comment by His Honour Judge Simon Brown QC in Earles v Barclays Bank that unfamiliarity with the Rules and a failure to comply with the CPR amounts to “gross negligence.”

As Bob Dylan sang, “The times they are a-changing.” Whether a dead rat or Osama bin Laden, time waits for no one and litigation lawyers are no exception.