Old Holloway’s Almanack 2012

Posted on 1 December, 2011 by Charles Holloway

Predicting the future is a mug’s game! However, it is fun, so here are my 5 predictions for 2012, in no particular order:

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. Continue reading →

Postscript from Munich

Posted on 24 November, 2011 by Charles Holloway

If bits and bobs can tickle my fancy in some strange metaphorical way I would like to share with you four observations which struck me from the panel sessions at the recent IQPC event in Munich.

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.”. Continue reading →

Postcard from Munich

Posted on 22 November, 2011 by Charles Holloway

Worryingly, I have realised that it is almost a lifetime ago that I was last in Munich. Actually that is not quite true because I was there about 5 years ago to watch a performance of Pygmalion in which my daughter was acting, but, fun as that was, my memories of Munich are from the late 1960s and consist of snow bound streets and noisy Fasching parties with what I would today call music which is far too loud. It was definitely very different from the more sober surroundings of the Kempinski Munich Airport Hotel where I found myself last week for the IQPC Information Retention and eDiscovery Exchange conference.

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. Continue reading →

The moral of the tale

Posted on 16 November, 2011 by Charles Holloway

Did you know that India has over 600,000 lawyers? The profession in India is said to be the second largest in the world. No prizes for guessing that the US has the largest number of lawyers at a truly staggering 1,143,358 registered and active lawyers in 2007. I have been unable to find a more up to date figure presumably because there is some embarrassment about publishing the statistics.

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!

Continue reading →

Here comes the judge

Posted on 10 November, 2011 by Charles Holloway

If you thought that it is only English judges who are telling our futures with their comments on the future of litigation and processes then you need to be aware that the pace of change in other jurisdictions continues apace.

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

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

Continue reading →

Is everything in the garden rosy?

Posted on 8 November, 2011 by Charles Holloway

Not if your garden is in Greece! The latest news suggests that horticulture in that part of the Mediterranean must be very tricky. Drought conditions prevail and the plants are looking a trifle sickly.

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. Continue reading →

Earwigging

Posted on 1 November, 2011 by Charles Holloway

Ask any group of people if they know the meanings of the words “synonym” and “antonym” and I guarantee a majority will know the definition of both. Ask the same group of people how they would define “contranym” and I am fairly certain you will be met with blank stares.

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

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

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

Continue reading →

Out of juice

Posted on 1 November, 2011 by Charles Holloway

Is there a conspiracy out there? I do not normally subscribe to such thoughts but on occasions I have to accept that there seems to be an unfortunate conjunction of events to say the least.

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.

Continue reading →

Sounds good on paper

Posted on 27 October, 2011 by James Moeskops

It may come as a surprising question to those of us who are immersed in such things but we are quite often asked to spell out the advantages of using e-discovery over paper-based methods. This is a particularly common question when the end-client is not overly familiar with litigious matters and naturally wants to feel comfortable that the additional costs spent at the outset on processing will be cost effective in the long run.

My starting assumption is that most lawyers are reviewing documents in a linear, document by document basis. Another key fact/assumption is that it is not faster or otherwise more efficient to review documents onscreen versus those in hard-copy form. This may sound contentious but our clients generally report that it is faster to review hard copy than it is to review onscreen – although this is somewhat dependent on the personal preferences and IT skills of the reviewer.

Then, there is the cost of acquisition, which can be justifiable deterrent to electronic review where the source documents to be reviewed are in paper format. The costs of scanning and coding hard copy documents are typically in the range of £0.40-£0.50 per page compared to £0.01 per page for the equivalent electronic documents – i.e. 40 to 50 times the cost! So, the benefits are lower and the costs higher where the documents are hard-copy as opposed to electronic and it therefore comes down to weighing up all of the benefits of using e-discovery, versus the costs. Continue reading →

Postcard from Boston

Posted on 25 October, 2011 by Charles Holloway

Why are you here? What do you do? Who is Millnet? Are you going to set up in the US?

Before I went away I mentioned that I had had the honour to be invited to the Fall Conference of the Litigation Counsel of America. What a splendid occasion it was in the beautiful city of Boston.

As the old postcards used to have it (although I cannot actually mark the spot) if you look closely at the above photograph at about 2 o’clock from the top of the Arch in the centre of the picture you will get some idea of the view to be had over Boston Harbor from my hotel.

The interesting domed structure below, rather like a mini St Paul’s cathedral but without the current crop of protestors, is the Foster Pavilion on the waterfront and the venue for the welcome conference reception and traditional clambake.

I must confess it was an interesting experience being the sole Englishman among about 150 US trial and appellate attorneys, or litigators if you will. Once I had answered all the questions about why I was there and what I did, I was able to enjoy a fascinating couple of days seeing how US lawyers get their CPD points (or CLE accreditation as they prefer to call them).

Continue reading →