If you missed it last Saturday, imagine 16 heavy athletic men, plus a smaller man and a girl, afloat on the Thames in two boats so flimsy that the slightest mistake will result in thousands of pounds worth of boat having a large hole in the hull and everyone getting rather wetter than they had hoped or in the case of the winning crew’s cox, as wet as he knew he would become once the race was over.

The 157th Oxford v Cambridge Boat Race was rowed in near perfect conditions and Oxford’s impressive win means that they have now won 76 times to Cambridge’s 80 (one race was a dead heat). This is significant, because if you are an Oxford man, as I am, you have spent all your life seeing Cambridge’s once commanding lead in the overall statistics dwindle to almost parity. Dare I dream that in the not too distant future Oxford will overtake their rivals in the total number of wins? If so, I will have to make a real effort to attend a Dinosaurs’ Dinner again; for those unfamiliar with the Dinosaurs it has nothing to do with prehistoric times and everything to do with eating and drinking too much at my old college where the rowers’ dining club is called the Dinosaurs!

Tradition is something that we in this country do well. Examples abound: the pageantry of the State Opening of Parliament, the Grand National, winning the Ashes and losing humiliatingly to Sri Lanka in the World Cup, the way we conduct litigation in this country, perhaps even the forthcoming Royal wedding. We do it all well and for the most part, in style, so it is something of a surprise when we are told that tradition is to change.

Last week I was invited by the University of Nottingham Trent Law School to attend one of their regular series of Distinguished Lectures. (I, and they, mean of course that the lecturer is distinguished and not necessarily the lecture. In this case it was both!) Lord Saville delivered an excellent talk on how to run a public inquiry and for me, sitting in the front row with one or two of my former colleagues who had worked on the Bloody Sunday Inquiry, it quickly brought it all back and with it the renewed determination to get to grips with the 10 volume report sitting on the floor of my office at home.

It was after the talk and over the dinner which followed that I was first made aware of proposals to update the training of solicitors, something which appears to have been set in stone for more years than I care to remember. Apparently the University of Northumbria is offering a course to enable students to qualify as solicitors without undergoing a training contract. It is called ‘work based learning’ and is a 5 year course which will superficially appear to law students to be attractive. After all the present career path takes 6 years because the university course is a minimum of 3 years, followed by a year doing the LPC and 2 years of a training contract.

I say superficially because while a student may qualify a year earlier than by the traditional route, they will have to spend 5 years at university for which they will shortly have to pay increased tuition fees and whereas law firms often help with the fees of the LPC and pay their trainees during the training contract, there is no obvious way in which they are going to pay for a 5 year course. Also it is too early to say what view law firms and indeed other lawyers will take of these “untrained” qualifiers.

It remains to be seen what happens to this proposal to change the traditional route to qualification but it will certainly arouse interest in the ranks of those coming into the legal profession who have seen the number of training contracts decrease year on year for the past three years. I see this first hand as I have spent some considerable time in the past months interviewing and employing new LPC graduates to help us and our clients manage litigation in perhaps untraditional ways.

From a standing start in November we now have a complement of 11 paralegals, all of whom are LPC graduates and aspiring lawyers. The position for them is stark, however, when you learn that despite excellent degrees from good universities and despite having completed the LPC often with distinction, only one of the 11 we currently employ has the offer of a training contract. What is more, in interviewing these bright and sparky individuals, not one of whom has yet been deterred by the apparent difficulty they face, I hear stories of deferral of training contracts and even contracts not on offer before 2013-14.

One of Lord Saville’s points in his talk was that the judicious use of technology can help in the efficient and cost effective running of a public inquiry. He has come in for some criticism for presiding over the longest and most expensive public inquiry in English legal history but that does not in any way detract from the valid point he was making, namely that lawyers can and must be aware of advances in technology which can and in most cases will assist in dealing with matters such as disclosure at a time when the emphasis is rightly on the need to reduce the cost of litigation/contentious work.

Which made it all the more poignant to read the letter by His Honour Judge Simon Brown QC in the Times on my way to Nottingham by train. Simon Brown is of course well known to the reader of this blog as the Judge in charge of the Mercantile in Court in Birmingham and the man who handed down the seminal judgment in Earles v Barclays Bank .

He kindly sent me a copy of his letter entitled “Technology is slow in assisting justice” – you can read it here. The thrust of his comments is that whereas other countries namely Australia, Singapore and the US have ensured that electronic service delivery at least by Government is now a reality, in this country the situation is the converse. In these straitened times the learned judge expresses the hope that we will see “a public-private partnership on public service technology advancing us into the 21^st Century envisaged a decade ago by senior judges, the Civil Service and the Government alike.”

It seems clear to me and indeed most commentators and most litigators that we have got to take the issue of using technology seriously. I say “most” because I still occasionally receive comments from lawyers expressing surprise at the suggestion that they should consider the use of technology as part of their strategy for conducting litigation and even (although rarely) the comment that “I don’t think we have any need for this at present.”

The CPR and the courts are making strenuous efforts to nudge litigators in the direction signalled by the advance of technology and the clients will certainly want to add their weight if it means lower fees and a quicker resolution of their disputes.

I am all for the continued success of the Dark Blues and our ability to help a small number of would be lawyers to achieve their goal by learning different skills while waiting for a training contract, but I am not sure that I am as yet convinced by pure work based learning as a means to qualify as a solicitor.

The case for the use of technology has been made and the means to access the expertise is there, but no training contracts? That is a tradition which I suspect has some way to run yet.

The Natural History Museum  lists some 333 known types of dinosaur in its Dino Directory. Not a lawyer among them (as far as I am aware) though, in view of my comments above, perhaps I am a dinosaur after all.

The Sorolla Museum in Madrid and the Jacquemart-Andre Museum in Paris, “the passion of Edouard Andre and Nelie Jacquemart,”  are collections housed in the artist’s and the collectors’ houses respectively, whereas the magnificent Thyssen-Bornemisza Museum in Madrid is in a refurbished palace designed to show off the fabulous collection of pictures collected by the late Baron Thyssen which he gave to the Spanish nation in honour of his Spanish wife Carmen.

So it was that in a quiet moment after the end of Legal Tech in New York, and outside my schedule of meetings, I found myself walking 20 blocks up through Central Park to the Frick Collection.

It was a beautiful sunny morning and I was glad of my overcoat, woolly hat and gloves as the temperature was only a touch above 25 fahrenheit (-4C) and there was a sharp wind across the ice covered snow in the park. I had been to the Frick before about 12 years ago and it is one of my favourite museums so I was determined to see it again. It is contained in a magnificent Park Avenue building, lived in by Frick and his family and remodelled by him and his architect to house his truly gorgeous collection of paintings, sculpture and furniture and incorporating a garden made out of an old carriageway which had existed between the two parts of the house and which ran between East 70th and East 71st Street.

Henry Clay Frick was an industrialist who had an eye for some of the most sumptuous paintings of women. The Boucher room and the Fragonard rooms are outstanding and some of the other rooms contain pictures of beauties such as Elizabeth, Lady Taylor and Emma Hamilton, infamous for her affair with Admiral Lord Nelson before his untimely death at Trafalgar in 1805. Standing in front of these magnificent canvases I fell to thinking about the passage of time. After all, it is over 200 years since Nelson fell on the deck of the Victory and over 90 years since Frick himself died.

It is also 38 years since I first turned up at Allen & Overy in Cheapside to begin my articles, as training contracts were then called. The office was even then one of the premier firms in the City although I am not sure I recall the term Magic Circle being used. Lawyers had secretaries who typed all day on a selection of manual typewriters using carbon paper, and communications were all by telephone or by letter as fax machines (remember them?) had not yet been invented. Some of the senior secretaries operated with something called a Golf Ball typewriter and a select few had the first memory typewriter where the previous line of type appeared on a “ticker tape” in front of the typist rather like the information screens which run on a loop in modern tube trains.

In litigation, the White Book was the bible which contained the rules of the game. The game to be played was litigation and it was like Snakes and Ladders. You twisted and weaved through the small print of the Rules in order to outwit your opponents. If you were lucky (devious/clever) you could ambush them causing maximum embarassment as a result of which they slithered down the nearest snake while you climbed the closest ladder, for example,  by revealing some telling point to them which tended to undermine their case from cards previously played close to your chest. Solicitors were in almost complete control and the courts had limited case management powers.

Two years later, in 1975:

• Jaws and The Rocky Horror Picture Show were premiered.
• The Sweeney and Jim’ll Fix It started on TV
• In Vietnam, Saigon fell.
• Gerald Ford was US President.
• General Franco died
• Angelina Jolie, Kate Winslet and Charlize Theron were born.
• Britain voted 2 to 1 in favour of remaining in the Common Market.
• I qualified as a solicitor.
• The internet was scarcely a gleam in the eye of Tim Berners Lee!

How times have changed!

Today the Woolf reforms, born in 1998, are 12 years old. In the Noughties, more and more people sent emails and created documents which were never in paper but only existed electronically. As a result, it is practically inconceivable that a piece of litigation today does not carry with it the need to consider electronic documents. The courts have acquired significant case management powers.

Last October the new Practice Direction 31B came into force for most cases as the Rules Committee sought to catch up (for the time being) with the advance of technology. Lawyers must now consider, search for and disclose/inspect documents including Electronic Documents. Judge Simon Brown QC in the Earles case described a failure to know and apply the rules as “gross incompetence”. Now lawyers (or at least the better ones) understand that circumstances have changed and that they must plan how they intend to deal with electronic documents early on in the life of a case so that practical matters are agreed at the outset in the interests of furthering the overriding objective and their clients’ interests.

Now lawyers are concerned with the issues which arise from the practice and the concept of cloud computing [see Burying our heads in the clouds, 19th Oct, 2010]. They have to ask themselves how they will meet their disclosure obligations if their data is in the cloud. What happens if the court orders production of data by a specific date and the provider cannot meet the deadline? How will the court react? What happens if your provider subcontracts the storage of the data to a company based outside the jurisdiction of the court? That just did not happen when companies stored their data in metal filing cabinets, or, if it did, I never came across an instance!

At the risk of repetition, how times change!

One of the more interesting talks at Legal Tech was by Michael Rogers entitled “A look at the Law-2020.

Rogers is what is described as a futurist and I attended his talk because so much has happened since I started in the law and particularly in the last 5 to 10 years that I wanted to hear what he thought might happen in the next 10 years.

Some of his ideas were truly startling. They included:

• Law and lawyers should not assume that their profession is immune from change. Think used cars and the arrival of eBay.
• Since 2008, 15,000 legal jobs have been lost in the US.
• Technology will become smaller and more personal. Wireless will be everywhere and spectacles (goggles have already been tested) will enable us to recognise a person as he/she approaches, providing information about the person to enable you to speak to him/her about relevant matters even if you initially failed to recognise the person or to remember what he/she did.
• Intelligent systems will increase. Example is translation software which to a small degree is already with us.
• Software engineers will be more important than lawyers. As data increases, the organisation and management of it will become more important and the need for clever programmers will rise.
• A system of secure ID will become available because, at present, “on the internet no one knows you are a dog!”
• Open Source legal documents will replace the bespoke variety. Start ups already use them.
• Virtual law practices will be widespread. Telepresence will be perfected.
• Governments will have to act to deal with the rise of organised internet crime. Internet access will be crucial. Cyber war is simple: just turn off the internet and a whole country can be immobilised.

His closing message was along the lines of the need to strike a balance between the real world and the virtual but that we would do well to take care not to lose the values of the past while building the new world.

We have come a long way since Emma Hamilton and Elizabeth, Lady Taylor!  It has often seemed like a Dance to the Music of Time – Poussin’s painting being the inspiration both for my title and for and Anthony Powell’s 12 volume novel cycle of the same name.

And whilst on the subject of tenuous links, Josephine Tey is an author whose works are not that well known but who is remembered most for her book, The Daughter of Time. Not about time travel, it is an entertaining account of her view that King Richard III was not the monstrous child  murderer he is always made out to be. She argues that history is written by the victors and that after failing, according to Shakespeare, to find a horse on the field of Bosworth in August 1485, Richard was subsequently excoriated for murdering the Princes in the Tower (for which she argues there is little evidence). History was (re)written by the victorious Tudors whose claim to the throne depended to some extent on the Princes not being there to argue that their claim to the throne was better than that of Henry VII.

The Daughter of Time is a misquotation of Francis Bacon who actually said, “Truth is the daughter of time, not of authority.” Francis Bacon is also credited with the saying: “Knowledge is Power” which seems to me to be an appropriate way to conclude these musings. It is what e-disclosure is all about. Know your data and how to manage it and you can achieve the high moral ground, and serve your clients’ interests well at the same time.

So there’s no need to be content to dance to the music of time – the message must be that if you get it right by planning ahead, you will soon see that knowledge is power!

I am not talking about erupting volcanoes and disrupted airline schedules, the General Election (although I see from Twitter that “Doing a Rochdale” is likely to rank highly in the litany of public gaffes alongside President Ford’s “there is no Soviet domination of Eastern Europe” and Gerald Ratner’s less than flattering description of his jewellery), the Greek economic crisis (now extended to Portugal and Spain, where next?) or the debacle over swine flu, the “pandemic” which never was (the use of the word was unnecessary and silly, designed to cause fear and anxiety).

For once, I mean something more prosaic and mainstream, although as someone with an interest in e-disclosure, I have to admit that I have found it quite exciting!

There has been a staggering number of developments in the field of e-disclosure since last autumn. From a position of near invisibility on the radar screens of most lawyers, the whole area is suddenly exploding with cases, initiatives and reports.

What is interesting to the casual observer is that a number of these developments have come about as a result of some very high profile stories which almost everyone will have heard about on subjects as diverse as the Iraq war to the alleged acts and omissions of a local authority social services department. To someone with more than a passing interest in the field, they are surprising because they have all come in a rush but, nonetheless, are exciting for all that!

The season kicked off with Judge Simon Brown’s judgment in Earles v Barclays Bank, continued with Mr Justice Ramsay in Vector v Williams and culminated in Master Whitaker’s judgment in Goodale v Ministry of Justice.

To add to those, we have had the

• final report by Lord Justice Jackson;
• publication in Goodale of the ESI Questionnaire,
• the Court of Appeal decision in The Queen (on the application of Al-Sweady and Others) v Secretary of State for Defence and
• Mr Justice Foskett’s decision in Sharon Shoesmith’s application for judicial review arising out of the Baby P case in Sharon Shoesmith v Ofsted & Others.

As far as I am aware the Shoesmith judgment is not yet on Bailii but the link takes you to the Judiciary’s website where you will find:

• Remarks by Mr Justice Foskett
• Summary of the judgment
• The full judgment of some 170 pages

What lessons can be drawn from all this activity? I suspect that there are many, but prominent on any list must be:

• The Rules (CPR) apply to everyone who uses the courts in this country. They are not voluntary. They apply to all cases and not just the large cases or high profile actions.
• Ignorance of the law has never been a good defence! Ignorance of the rules relating to e-disclosure and the cases on the subject is every bit as unacceptable. I would go so far as to say that the cases show that neither is now an option and to persist in ignorance is negligent. (I say this despite the fact that the existing Practice Direction under Part 31 has been in operation since 2005 and has largely been ignored by lawyers and the judiciary alike!)
• If you litigate in the courts of England and Wales you MUST now consider the problem of electronic documents. You cannot ignore such data. You cannot decide for yourself that you will not disclose them to the other parties or that it is too difficult and/or expensive to do so. The watchwords are now transparency, consultation and cooperation. I remember, as a boy, my maths teacher saying to me over and over again (I was not particularly good at maths as I recall) that he did not mind if I got the answer wrong as long as he could see how I got there. He urged me to show my workings so that he could see that I had understood the process. If I reached the wrong answer but had understood the process, he was prepared to be lenient. On the other hand, if I reached the wrong answer and he could not see how I got there (or if I got the right answer and he could not see my workings) there was no mercy. After all, he reasoned, I could have just guessed and been lucky with the answer! It is just the same with e-disclosure. Consider the problem, work out a plan for dealing with it, discuss it and agree it with the other side and get a court order if you cannot agree, and the judge will understand. In the meantime keep attendance notes of what you say and do, so that you can show the court how you reached the conclusion ultimately arrived at, and you will not go far wrong.
• Do not underestimate the requirement to produce a list of documents accompanied by a disclosure statement. Someone has to put their head on the block and must say, after considered thought, what documents exist and should be disclosed. It is not a tick box, bureaucratic exercise and is one which can and should be undertaken by lawyers in consultation with their clients and any relevant e-disclosure experts.

By way of reminder CPR Rules 31.9 (5) and (6) provide as follows:

(5) The list must include a disclosure statement.

(6) A disclosure statement is a statement made by the party disclosing the documents –

(a) setting out the extent of the search that has been made to locate documents which he is required to disclose;

(b) certifying that he understands the duty to disclose documents; and

(c) certifying that to the best of his knowledge he has carried out that duty.

With that in mind, I want to turn to the Al-Sweady case where the Court of Appeal gave judgment last October.

You may think that the arid wastes of Iraq are unlikely to be fertile territory for e-disclosure. The case arose out of an incident at a check point known as Danny Boy on 14th May 2004 when Iraqi insurgents ambushed the Argyll and Southern Highlanders. There were hotly contested allegations that some of the Iraqis were in fact tortured and killed after they had been taken prisoner by British troops. Serious questions arose under a number of the articles of the European Convention on Human Rights.

It is certainly not my intention to be flippant about the death of anyone because any death which occurs in war is regrettable but I want to consider this case a little further because of what happened in the course of bringing it to trial and what the court had to say about disclosure.

The claimants in this application for judicial review had to make a number of applications for disclosure from the MOD. The detailed position can be seen from the judgment of Lord Justice Scott Baker but a few extracts will suffice to show the serious failure of the authorities to consider properly or at all their obligations on disclosure. For example at paragraph 8, the judge said:

We shall have to return to set out some of the more disturbing aspects of the difficulties caused by the Secretary of State’s attitude to disclosure in a little detail in paragraphs 30 onwards in the hope of avoiding similar problems in future. We were also so concerned about the lamentable approach of the RMP to disclosure that we invited the Treasury Solicitor and the Provost Marshal (who is in charge of the RMP), to come to court on 15 May 2009 to assist in ensuring that proper disclosure would take place. They duly attended and we were grateful for their help, but we will return in paragraph 29 onwards to explain the subsequent problems with the disclosure, which ought to have been given, but which unfortunately was not given, by the Secretary of State.

And again at paragraph 30:

Both before and during the hearing of this judicial review application, the claimants’ solicitors were compelled to make numerous applications for disclosure of relevant documents. It was only when such applications were made that the Secretary of State actually gave some disclosure which the court was then wrongly assured was adequate. Rather than give every instance when this problem arose, we will merely focus on two important areas where we have concluded that there have been serious breaches committed by the Secretary of State’s advisers of the duty to make proper disclosure in this case. The first deals with electronic communications between the Military Facilities in Iraq and United Kingdom command centres relating both to the death of Mr Al-Sweady and also to the treatment of the detained defendants while the second relates to disclosure of material concerning the investigations carried out by the RMP, and in particular by Colonel Dudley Giles, who was the Secretary of State’s principal witness in this case on the issue of the investigation of the claims.

And again at paragraph 44:

In consequence, various inquiries were ordered and the Secretary of State was ordered to pay the costs of the claimants on an indemnity basis. It is deeply regrettable that so much public money and so much court time has been wasted as a consequence of the persistent and repeated failure by the Secretary of State to comply with his duties of disclosure. It is a matter of great surprise and deep disappointment to the court that the Secretary of State still could not be satisfied more than 18 months after this claim was brought that he could give proper disclosure in a case such as the present one with the result that he was obliged to concede defeat and to pay indemnity costs.

The indemnity costs awarded amounted to a sum in the region of £1 million against a claim for twice that submitted by the Claimants.

I am sure that this is not the first time that a court has required the attendance of someone responsible for disclosure to explain the defects found in the exercise under their control. The fact that this involved the Treasury Solicitor and the Provost Marshal in person and that the court ultimately awarded a seven figure sum in indemnity costs should prove to the doubters that the courts take this aspect of litigation extremely seriously.

The lesson is clear. Take your disclosure obligations seriously or face the consequences. Not only that, someone has to carry the can and this case makes clear that this is likely to be a public exercise.

In other words, the blame game means name and shame!

That was not the end of it however. Colonel Dudley Giles was the RMP officer with responsibility for collating the RMP disclosure and played a leading role in what was sent to the Secretary of State, who then, with the help of the Treasury Solicitor and Counsel, advised on the documents to be disclosed to the claimants.

The court referred to lamentable disclosure failures and other shortcomings displayed by Colonel Giles as a witness and concluded at paragraphs 59 and 60:

59. It is incumbent on us to record that we are all firmly of the view that he lacked the necessary objectivity, proficiency and reliability which should be the hallmarks of any witness put forward especially by a Secretary of State in judicial review proceedings or relied on by the Secretary of State to make proper disclosure.

60. Accordingly, if Colonel Giles continues to be put forward as a principal or even a significant witness in judicial review proceeding or if he is in any way responsible for disclosure, it is our view that any Court seized of those proceedings should approach his evidence with the greatest caution.

I can imagine how I would feel, as a lawyer, if my client were described in such terms and it is surely an object lesson to all those charged with disclosure obligations to take the greatest care in making disclosure in civil proceedings in our courts.

There can now be no doubt, if there ever were, that those in default will be named, will and should be shamed and that is what happens when the game turns nasty and someone has to take the blame for defective disclosure.

This was the judgment of one of the highest courts in the land and Lord Justice Scott Baker and his fellow judges, Mr Justice Silber and Mr Justice Sweeney did not pull any punches right to the end where they added at paragraph 67:

We cannot part with this case without paying tribute to the claimants’ legal advisers who although greatly outnumbered by the Secretary of State’s legal team have persisted with their requests for disclosure skilfully and with commendable determination.

Ouch! Talk about rubbing it in!

Finally, we now have the judgment of Mr Justice Foskett in the Sharon Shoesmith case. Should you be inclined to click through to the judiciary website, you will find there the remarks made by the Judge, a summary of the judgment and the full text of the judgment, which will doubtless be in Bailii shortly.

At first sight, the subject matter of a claim for judicial review of the decision by the infamous Ed Balls to sack the head of Haringey’s Children’s Services Department after the death of Peter Connelly (Baby P) at the hands of his mother, her boyfriend and the boyfriend’s brother seemed unlikely to be fertile territory for a commentary on electronic disclosure. Once again, however, huge and damaging publicity for defective disclosure resulted from an examination by the court of the efforts of the defendants to discharge their disclosure obligations and once again the person responsible was named!

The case was high profile from the outset as the public reacted with revulsion to the news of the death of Baby P and as the details became known of the involvement of Haringey’s Children’s department and subsequently the actions of the Secretary of State and OFSTED.

It deals with a number of issues not relevant to my purpose here and, although Sharon Shoesmith failed in her application she may yet appeal and in any event she has stated she intends to pursue her claims in the Employment Tribunal for unfair dismissal and sexual discrimination.

I have not yet had occasion to examine the judgement in detail but I want to mention what the judge described as the “inept” handling by OFSTED of its obligation of candour and the instruction to delete emails. The judge was profoundly concerned with these issues and he has indicated that a number of issues remain outstanding which he intends to raise with the Treasury Solicitor personally. (See appendix 2 paragraph 41 of the judgment).

The judge also had reason to consider an internal document issued by the Treasury Solicitor in January 2010 as a direct result of the judgment in Al-Sweady and entitled Guidance on Discharging the Duty of Candour and Disclosure in Judicial Review Proceedings. See appendix 2 at paragraphs 6 and 7.

It will be interesting to see what comes out of the session between the judge and the Treasury Solicitor but in any event the courts have laid down another marker on the issue of disclosure and the duty of candour which litigants ignore at their peril.

Now we have a report in The Lawyer [Russian Retribution, 31 March, 2010] that two of Russia’s wealthiest men are to face one another in Court in 2011 after lawyers acting for Roman Abramovich failed to persuade Mr Justice Colman to strike out claims by Boris Berezovsky that Abramovich used coercive tactics against his former business partner which Berezovsky alleges caused him billions of pounds in losses.

The judge criticised the costs of the strike out application which are believed to be in the region of £1 million each and which occupied the court for 15 days, three times longer than estimated. The full trial has been listed for 12 weeks next autumn (2011).

The documentation and witness statement evidence was said to be “extremely voluminous”.

Given that both parties are represented by extremely experienced and well known law firms, we can be sure that they have taken account of the recent judgment in Earles v Barclays Bank and the publication of the ESI questionnaire as a schedule to the Master’s judgment in Goodale v Ministry of Justice.

It will be fascinating to see how this one works out. Whatever happens, AR and BB will have to pay more than the crooked sixpence and the cost of the cleaner for the dolls’ house in the Beatrix Potter story. Reputedly, they can afford to do so!

Master Whitaker is well known as an advocate of proportionate e-disclosure in appropriate cases and also as a judge experienced in dealing with Group Litigation orders as in this case involving the Opiate Dependent Prisoners Litigation.

What makes this judgment of particular interest to those involved in the whole area of electronic disclosure is the fact that the Master saw fit to include in his judgement the ESI questionnaire which the Rule Committee decided recently to refer to another subcommittee.

As far as I am aware this is the first time the questionnaire has seen the light of day. From a personal point of view, having written about my partial disappointment at the contents of the Jackson Review [Motherhood and apple pie, 18 January 2010], I am delighted that we have been granted a preview of what the rules may look like when they are incorporated into the CPR as Lord Justice Jackson clearly intends they should. He made it clear that he was not going to make any recommendations in relation to this aspect of civil litigation because he endorsed what the members of the Rule Committee was doing. As his press conference on the day of the publication of his report was attended by not only the Master of the Rolls but also the Lord Chief Justice, we must assume that in due course the rules will be amended to take account of this questionnaire.

But, you may say, they are not in the Rules yet and I do not need to be bothered with them. Well, I am not so sure.

I have said before on many occasions that the rules as presently constituted provide a framework within which litigators and their clients must work and the sanctions are there for any failure to comply. As HHJ Simon Brown said in Earles v Barclays Bank , and I paraphrase, the rules are not voluntary. If you litigate in this country you must comply with them. It is gross incompetence not to.

Now we have the authority of the Senior Master that the ESI questionnaire can be used in case management, and used NOW! Practitioners do not have to wait for the changes in the Rules. There is now authority to this effect.

There is a very helpful summary for practitioners on the website of the Society for Computers & Law together with links to the Guidance notes and the Glossary prepared by the committee which produced the questionnaire which may also be downloaded. See Disclosure: The ESI Questionnaire’s Debut.

We will doubtless hear more about this subject as the months progress and we will certainly be coming back to it.

In the meantime, as part of our ongoing contribution to the education of lawyers who have to grapple with the problems of electronic disclosure and to the spirit of Jackson and the reduction in the cost of litigation, we will be publishing shortly our own guide to the questions which lawyers often ask in relation to e-disclosure, with our suggested answers and a detailed glossary of many of the commonest terms used in the field of e-disclosure.

Our recent offer of up to £10,000 worth of free processing was hugely popular and oversubscribed and has now ended well in advance of the published deadline for submission to us of possible cases for consideration. However, we intend to continue to look for ways in which we can help our clients and those who have not used our services before to keep the cost of litigation down as to which more in due course.

1. Britain’s forthcoming defence review.
2. Jackie Fisher, First Sea Lord at the end of the 19th Century.
3. John Terry, Chelsea and England footballer.
4. Publius Flavius Vegetius Renatus.
5. The Royal Navy.

Answers on a postcard please!  

No, not really. Inappropriate in this electronic age and there is no prize for this one anyway.

Last Sunday evening, I was happily clutching an alcoholic restorative in a comfortable chair by a roaring log fire, when my attention was drawn to background commentary on the TV about HMS Dreadnought.

The voice was Dan Snow’s, (son of Peter of the Swingometer arms beloved of election night audiences) the presenter of a BBC TV series about Britain’s naval past entitled “Empire of the Seas”. HMS Dreadnought was the ultimate fighting ship of its time. Built in HM Dockyard, Portsmouth in under a year and launched in 1906, it effectively rendered all other ships obsolete. The trouble was that this obsolescence extended to the ships of His Britannic Majesty’s navy too and encouraged the first real arms race as other naval powers such as France and aspiring powers such as Germany invested in their ship building skills in an effort to produce an answer to Dreadnought. At the time it was a magnificent fighting ship and if you were a sailor in Dreadnought you really did fear nothing. The guns had a huge range larger than any other ship afloat and the iron clad hull effectively meant that the ship was immune from penetration by any known enemy projectile.

Some of you will recognise this approach to litigation. You know what I mean! Marshal massive forces on one side and blow the opposition out of the water with everything at your disposal before the enemy has a chance to respond. The trouble with that approach is that it is often ineffective today. I remember the days when a well fed corporate lawyer would seek to reassure his client with the words, “Don’t worry, I will get one of our litigation chaps to issue a writ right away”, the implication being that by bringing all their firepower to bear immediately you would blow the opposition away.

It is odd to realise now that in those days that was allowed! I am not talking about injunctions and applications for other urgent orders such as Anton Piller (search and seize) but about any ordinary claim where the issue of a writ was thought to be the initial negotiating tactic or possibly the only weapon in the armoury. Nowadays, we have the concept of proportionality introduced by the Woolf reforms of the late 1990s and the various protocols to be followed before a claim form (a writ sounds so much more intimidating) can be issued.

Si vis pacem, para bellum. If you want peace, prepare for war! These words are attributed to the works of the Roman military writer Publius Flavius Vegetius Renatus. Writing in the 4th century AD he was responsible for a sizeable treatise on Roman warfare. Whether he wrote these words or not, they have been adopted and adapted by many others over the ages.

I understand the words are the motto of the Royal Navy today!

However, you translate them, the sense of the words is clear. You may not agree with the sentiment but there is force in the suggestion that in order to have peace you have to be able to prosecute war. You may not want to, but if you are incapable of doing so, it will not be long before someone seeks to take advantage of your perceived weakness and you have war not peace.

Dreadnought came and went in a matter of a few years. Just as the Admiralty and its designers strove to achieve superiority, so litigators strive to overcome their opponents but the emphasis is now on the importance of skilful preparation rather than reliance on mere superiority in numbers. In these days of proportionality it simply is not good enough to seek to overwhelm the opposition by deluging them with paper or ESI without taking effective steps to reduce the amount involved. If you do not do so, your opponents will almost certainly complain and raise the judgement in Earles v Barclays Bank PLC given by Judge Brown in October last year.

I have written before [Readiness is next to godliness, 16 Febreuary, 2010] about the importance of litigation readiness as part of a robust strategy for litigation and it seems to me that the more lawyers talk to their clients in times of peace, the better prepared they will be to deal with war when it arrives. Anyway, just think of the opportunities to build relationships with your clients in the process! Truly, if you want peace, prepare for war!

Last Sunday was a day for thoughtful reflection in other ways too. Hard on my poached eggs on toast (delicious with marmite too) I came across an altogether less palatable subject in my Sunday Times. Michael Smith had written a full page article on the forthcoming defence review under the title: “The shape of wars to come”.

Difficult decisions will have to be made about reshaping our armed forces with limited funds whichever Government we elect in the spring. The arguments are ranged all along the spectrum from the defeatist (let’s reduce them all to one service) to the alarmist via the pragmatic but as one former Admiral put it: “Peace doesn’t keep itself…..history shows that. We need forces that defeat and deter threats to the UK and protect our interests around the world. If you forget that, you are not going to be any sort of power. You become Belgium”.

Unkind to Belgium perhaps but his meaning is clear. If you wish for peace, prepare for war.

If you have stayed with me this long you may be wondering what John Terry has got to do with all this. I do not consider him to be an expert in this field of e-disclosure although I am prepared to concede he may be or perhaps there is a litigation support manager out there somewhere, whom I have not met, called John Terry! However, you will know the one I am talking about and I am sure you do not need me to intrude on private grief given the revelations of the past few weeks. However, John Terry featured in an article by Alastair Brett, Legal Manager of Times Newspapers, far removed from the sports pages of the same Sunday Times dated Feb 7th.

Beside being drawn by the arresting title – John Terry, the accidental poster boy for press freedom – I decided to read the article because I used to know Alastair at university and although I have lost touch with him I always read his articles as a way of making me believe that I am still in contact with him. His article carried a picture of JT with a pained expression on his face (hardly surprising) and a subtitle which “hails the ruling that leaves liars and cheats exposed” as JT’s so called Super injunction was lifted and his identity was revealed.

Alastair is clearly no lover of the super injunction and I wholeheartedly agree with him. His point, however, was that we are in danger of sleepwalking into the nightmare of a judge made privacy law which only serves to “protect the immoral but legal behaviour of the rich and famous, or which enables philanderers not only to gag a free press but also to claim damages for cheating and lying to their wives and fans”.

Strong words indeed. He went on through a whole range of recent stories from Avram Grant’s visits to a massage parlour in Portsmouth, through Max Mosley’s successful action against the News of the World for invasion of privacy after his predilection for S & M was revealed, to the Sunday Sport journalist who, in 1990, gained access to the hospital room of ‘Allo! ‘Allo! actor Gordon Kaye where he was lying gravely injured following an accident.

His object was to suggest that privacy law in this country is a mess and to propose a solution but whatever the solution it seems to me that the participants would do well to assume you are going to be found out and to take steps to prepare for when it happens. If you want peace, prepare for war! You may not succeed but you will be embroiled in an unpleasant spat if you make no effective preparations.

Something to talk to your clients about, perhaps, before they become involved in their own wars?

Debevoise & Plimpton had sued former client Candlewood for $6million in unpaid legal fees and found itself facing “an answer and counterclaim” seeking damages of $55million! [Ex-Debevoise Client Raises Nasty Counterclaims in Unpaid Bills Case, The American Lawyer, 14 January, 2010]

Apparently, some of Candlewood’s allegations against their former advisers were not too flattering which only goes to show that the publicity generated by this type of dispute is often publicity the law firm could well do without.

According to Candlewood’s counterclaim, D&P managed to bill for more than 15,000 hours or the equivalent of 10 lawyers working full time for the 10 month period in question, whereas Candlewood’s Delaware based lawyers successfully represented the company for two and a half years at a total cost of $450,000.

Could this happen in England?

It is possible but it would be as well to remember an interesting part of the judgement of His Honour Judge Simon Brown QC in Earles v Barclays Bank PLC . The case is often cited as an example of justified criticism by the judge of lawyers who fail to abide by the CPR, something he described as “gross incompetence.”

But it also shows that judges in this country are now very much aware of the need to manage costs and in that case, Judge Brown made a distinction between the costs charged in the City of London and the costs charged and recoverable in Birmingham.

If Earles is followed, it looks as if clients will only be faced with “Delaware” costs for “Delaware” type cases.

David took on Goliath in Earles! As the judge said at paragraph 80 of his judgment: “Here we have an impecunious bank customer facing the might of one of the country’s largest banks and a blue chip legal team to match when he has struggled to afford to have a highly competent but small firm from Stratford upon Avon to represent him just for trial”.

The judge allowed Birmingham rates and disallowed City of London rates.

If David did not actually slay Goliath, he gave him a very bloody nose!

Whether the statistics are accurate or not, there can be no doubt that vast amounts of information are now held in electronic form. This leads to questions about the way companies deal with the storage of such information and what arrangements they have for its retrieval when faced with litigation, a regulatory investigation, an arbitration or a Freedom of Information application.

If anyone was in any doubt that a good and sound system of storage and retrieval was required, the doubt should have been banished by the judgement in Earles v Barclays Bank PLC.

I referred just before Christmas to an article in The Times by Grania Langdon-Down [E-disclosure: how good is your filing system? 17th December, 2009], not just because it contained a reference to me and to Millnet (which it does!) but because I had been forcibly struck by several instances in the past few months where litigants have clearly failed to grasp that the world has changed and is still changing in relation to how we manage ESI (electronically stored information). If the statistics are right, there is far more ESI out there than paper and it is therefore an issue which needs urgently to be addressed.

It does not seem to matter whether the litigants in question are companies, banks, individuals, Government departments or other agencies. The plain and simple fact is that there is a lack of understanding about what is required in relation to the preservation and retrieval of information both inside the organisations themselves and also the cases reported in the newspapers and elsewhere often show that advisers appear to be in the dark too.

“Stuck in the photocopier” seems to have been the response by the London Borough of Haringey to the revelation that childcare inspectors failed to produce thousands of pages of evidence in the case of Sharon Shoesmith’s judicial review. You will recall that she was sacked as Haringey’s Children’s Services Director after the death of Baby P. For a fierce denunciation of the actions of Ed Balls, who orchestrated the sacking, and on the button suggestions for the lawyers acting for Mrs Shoesmith, you need look no further than Chris Dale’s blog on the subject [The Baby P case may be the disclosure story of the year, 15th Deecmber, 2009]. Please read it. It is a real corker!!!

The failure to “get it” is not confined to Haringey. The phrase has recently been applied to our elected representatives and their predilection for using taxpayers’ money for a wide variety of purposes outside the definition of what is “wholly and necessarily incurred” in the performance of their duties. It is an inelegant phrase but it seems to capture succinctly the failures to which it is applied.

For my purposes, I wrote last year about the inability of the CPS to “get it” in their failure to prepare/photocopy documents in a timely way (over 6 months) so that the case against five men accused of affray was ultimately dismissed by the judge [Have photocopier, will travel, 3 November, 2009].

My big hope for 2010 is actually quite modest. We have had four reported cases on E-disclosure since the latter part of 2008 (Digicel, Abela, Hedrich and Earles) . We are shortly to see publication of the Jackson review on civil litigation costs and a new Practice Direction to Part 31 and a new Technology Questionnaire.

As a result of these developments, 2010 could (should?) see quite a shake up in the world of e-disclosure. It simply will not be acceptable for the likes of Haringey, the CPS or Barclays Bank, nor anyone else who litigates in our courts or uses our legal system, to continue in the 21st century to deal with disclosure in a 19th century fashion.

Towards the end of last year, we became used to seeing all sorts of claims that 2010 was the year when we would see an explosion in litigation, or that the New Year would be a very good one for litigators. At Millnet, we have noticed a definite upturn in instructions and enquiries about how to deal with mountains of electronic material and it is tempting to think that either the litigation wave has arrived, or that advisers and their clients are beginning to “get it”, or possibly both!

What should we make of all this as we start the New Year? Presumably the cases and the changes in the rules will have many litigation lawyers reaching for their copies of the CPR (on the assumption that they do not access the rules on line!) in order to escape the wrath of judges like His Honour Judge Simon Brown QC.

But while the CPR will make interesting reading for those not yet familiar with Part 31 or the Practice Direction and while we await publication of the Jackson report and the decisions of the rules committees on the new rules, I wonder what busy litigation lawyers will be saying to their clients should be their New Year Resolutions for 2010.

Many journalists and commentators go in for the sport of New Year predictions. Not so many return to the subject to check how they have done after the 12 months have elapsed! I thought I would avoid that trap by not listing a series of predictions nor an amusing “diary” of likely events for the next 12 months.

In an earlier post  [UK firms falling short of EDI readiness, 11 November, 2009] I touched on areas where I thought attention might be directed in relation to the storage and retrieval of documentation.  Now, I am more sure than ever that clients and their advisers should be thinking about matters such as litigation readiness, the operation of litigation holds and getting to grips with e-disclosure. At the very least, why not contact one or two litigation support providers and set up a few meetings to see what is out there? If that were to happen, those who had taken the decision to enquire how their litigation might be conducted more efficiently would not be forced to go cap in hand, and late, to the nearest provider when the time for disclosure is only days away and they have suddenly realised there is a problem. This last approach of course usually means the whole exercise will be fraught for client, lawyer and provider and it will be expensive!

We have heard much about LPO or Legal Process Outsourcing. How about Litigation Process Outsourcing? After all, what lawyers are good at is analysing and reviewing the issues for their clients and advising on the strategies to be followed as a result of such analysis and review. What they are not good at, by and large,  is the process of retrieving the electronic material, processing it and then making it available to their teams, Counsel, experts and others in a quick, reliable and cost effective manner, proportionately and in accordance with the rules and without spending unnecessary time reviewing material which ultimately is not germane to the issues in hand. Lawyers should beware the Digicel scenario of 6700 hours of lawyer time and £2 million in fees, all of which was wasted.

My modest hope for 2010 is that more thought will be given to strategy. I hope lawyers and their clients will think about potential problems before they arise and come up with possible solutions before there is a crisis. Help is often only a phone call or email away and that costs nothing, or nothing compared to the cost of a rushed and complicated exercise at the last moment under pressure from the other side and the courts.

In an era of tightened belts and economic difficulty, Grania Langdon-Down rightly points out that persuading companies to spend now to save later is a thankless task. Her article does, however, refer to the case of UBS which was fined more than $2 Million for getting it wrong in an employment case before deciding to go for a global document management project!

All I am saying is, at least look at strategy for 2010. It might save you millions. It will certainly save you good money and earn you the gratitude of your clients and the courts! What is more, I guess you may well find you and your clients are ahead of the game too.

I have an affectionate memory of learning Latin although too often my reports complained that “he could do better at Latin sentences if he learned the vocabulary and the conjugations”. I am in favour of it being taught, not least because it is one of the foundations of our own language today. However, nowadays the use of Latin in the law is dying out and a good thing too! Plain English is what we need so that everyone can understand what is being said and written.

Why a Latin heading then? I have to admit that the phrase came swirling into my mind recently, not because I was reflecting on the process of papal elections but because I was forced to reflect on how quickly things are changing in the world around us. Incidentally, there used to be a ceremony as part of the process of installing a new pope called “sic transit gloria mundi”. According to Wikipedia:

The phrase played a part in the ritual of papal coronation ceremonies until 1963. As the newly chosen pope proceeded from the sacristy of St. Peter’s Basilica in his sedia gestatoria, the procession stopped three times. On each occasion a papal master of ceremonies would fall to his knees before the pope, holding a silver or brass reed bearing a piece of smoldering tow. For three times in succession, as the cloth burned away, he would say in a loud and mournful voice, “Sancte Pater, sic transit gloria mundi!” (“Holy Father, so passes worldly glory!”)  These words, thus addressed to the pope, served as a reminder of the transitory nature of life and earthly honours. The stafflike instrument used in the aforementioned ceremony is known as a “sic transit gloria mundi”, named for the master of ceremonies’ words.

Coming back to the world outside the Vatican, there has been a raft of stories recently which demonstrate how quickly things are changing for lawyers. Examples are the apparent financial crisis engulfing Dubai, Rupert Murdoch’s attack on Google for providing information free to the rest of us, imminent changes to the way litigation is to be run and the suggestion that the hourly rate for lawyers, for so long the one constant in the law firm firmament, may be on the way out.

Dubai’s problems have provided the most column inches over the past few weeks and it did not take long before law firms reacted by cutting staff in the region. Who would have thought that would have happened even a few weeks ago when the oil revenues were flowing in and the rich and famous were queuing up to buy real estate in the sun? Actually, and I take no pleasure in saying this, who did not think it would happen at some stage when ludicrous sums of money were being spent/borrowed at very low rates of interest to build hotels and casinos on the shifting Arabian sands?

Nonetheless, DLA Piper was in the running to be the first firm to announce significant job losses in the region last week.

The speech by Rupert Murdoch recently to the Federal Trade Commission (US consumer protection body) caused something of a stir. In fact, it is likely to be more than a storm in a desert tea cup because he appears to be challenging the assumption made, I suspect, by 99% of the rest of us that Google and other search engines will always be available a few clicks away to provide information on any conceivable subject you care to choose. What’s more, it is free. Well, not if Mr Murdoch and others have their way. There is a move afoot to charge users of Google for the right to view the content of certain publications and, given that Mr Murdoch is behind such a move, we should all be alive to the possibility that it will come to pass in one form or another.

Then there are the widely trailed changes to the way we run our litigation in this country. The Jackson review of costs in civil cases is eagerly awaited this month or early next year. We are told that there will shortly be a new Technology Questionnaire and a new Practice Direction to Part 31 CPR and, as if those were not enough, there has been the important judgment in the case of Earles v Barclays Bank, where His Honour Judge Simon Brown QC used the strongest possible judicial language to make it clear to lawyers that it was “gross incompetence” for those practising in the civil courts not to know the rules and practice them. In that case, serious costs consequences followed the failure of one party to comply with the obligations imposed by the CPR.

As if all that were not enough, Altman Weil have recently published a survey 2010 Billing Rates showing that US law firms are expected to raise their billing rates in 2010.

While I understand that law firms, just like banks which have been bailed out by the taxpayer, will be seeking to rebuild their balance sheets in 2010, I find it odd to hear that they believe they can remorselessly raise their rates as if nothing had happened in the interim since 2008. I just do not believe that clients will wear the idea of an increase when they are reeling from the credit crunch, loss of markets and falling orders. What clients want is for their lawyers to respond to their concerns and to share the pain and the responsibility with them. If lawyers do not respond in this way, my view is that clients will gravitate away to those firms who appear to have got the message and are prepared to think of different ways to help their clients and different and innovative ways in which they can be recompensed for their advice.

Some support for that view comes from two sources this week and they are both in the insurance sector. Both Zurich Insurance and Prudential are reported to have made it clear to their panel firms that far from there being an increase in rates for 2010, the insurers are looking to their lawyers to restrict their rates to those prevailing in 2008. Those who agree will, I suspect, be given more work as a result because I suspect that there will be firms who say they are not prepared to work on that basis.

2010 promises to be a difficult year for many as recent certainties retreat. For those who are prepared to grasp the initiative it could well be a year of surprising promise and achievement. It does not matter whether you are an investor in the Middle East, a newspaper proprietor, an insurance lawyer or a law firm, what is clear is that standing still and expecting it all to come right in 2010 is not an option.

Whatever its origin, the saying crops up in a variety of differing situations including a speech by Robert F Kennedy in 1966, a letter from Austen Chamberlain to a member of the US House of Representatives and more recently in a speech by Bob Garvin, the character played by Donald Sutherland in the 1994 film, Disclosure.

The film starred Demi Moore and Michael Douglas who, contrary to what you might expect from the title, were not engaged in a Hollywood version of Part 31 but played a couple who worked in a technology company and who became engrossed in a sexual harassment case!!

Could it be that the ancient curse been invoked against the Law and the legal profession in general and litigation lawyers in particular?  It is certainly true that we live in interesting times!

I rather liked the report in the newspapers recently of the return of a pair of gargoyles to the actress Phyllida Law (how appropriate), the mother of Emma Thompson. The gargoyles looked pretty hideous and it is no small wonder that they were stolen from her garden but they were ultimately returned anonymously, presumably by the thief, with a note saying he (or she) had been very ill since taking them and asking if the actress would please lift the curse. Having a sense of humour, Ms Law has now returned the items to their rightful place in her garden with a note saying that “all curses have been lifted!”

But I digress. What is clear is that the pain felt currently by many law firms as a result of the recession refuses to abate. In article after article, this point is made by legal journals, commentators and the press.

To illustrate what I mean, a recent edition of Legal Week contained a number of articles which caught my eye. The strap lines were:

• Leading City Firms in talks to bring in teams of contract lawyers
• Partners seek new models but wary of LPOs (Legal Process Outsourcing)
• Riding the tipping point
• Don’t want to be a partner? We have the technology.

In a nutshell, these articles concerned respectively:

• The proposed use of consultant lawyers
• The drive for efficiency in the delivery of legal services but concerns about quality and supervision
• The possible demise of the hourly rate as the preferred method of charging for legal services; and
• The rise of the virtual law firm and the use of “floating” lawyers.

Regular readers will know that on previous occasions I have suggested that, while times are changing, lawyers are sometimes reluctant to change with them. I have referred before to the perceived antipathy to coming to terms with technology and its use in appropriate and proportionate circumstances and have further suggested that failure to engage in this area exposes firms to the risk of losing work and possibly also costs penalties as the courts and corporates no longer accept the old laborious ways of sifting, culling, analysing and reviewing documentation for litigation.

What can one extract from these articles? It will not take readers long to realise that they are all about the impetus for a more cost-effective delivery of legal services. Familiarity with and use of technology is only one example of where law firms currently struggle to offer an efficient and cost-effective service to their clients.

Redundant lawyers are available all around the marketplace so when faced with an upturn in business or a large litigation matter or regulatory investigation, why would a law firm not want to consider contract lawyers for specific projects? Despite one correspondent writing intemperately that “temps” are “more trouble than they are worth… (and) are only temps because they cannot get a proper job..”, the majority view seems to be that employing contract lawyers is good for law firms and increases their profitability. A number of correspondents point out that many will be good, well qualified, sometimes senior lawyers who have either lost their jobs in the downturn or have decided that there is more to life than working 26 hours a day and losing wife, contact with children and touch with reality all at once.

I was initially a little surprised at the concept of “floating” lawyers but having read that Allen & Overy is considering the possibility of creating a pool of its alumni to draw on, I realised that contract or “floating” lawyers are an interesting idea. This has, I can assure you, absolutely nothing to do with the fact that I am an A&O alumnus!!

I gather that the use of such lawyers has been commonplace in the US since the 1970s — and why not? Presumably they are available because of recent job cuts and may well be employed by the very firms who made them redundant or competitors who have an eye to the main chance but who do not want to commit to a permanent hiring policy. After all, firms have used the locum for years so why should it be different now, particularly when firms are tightening their belts and the clients are more and more cost conscious?

As for the virtual firm, I see that the concept is already with us. Subject to the usual caveats as to quality and supervision, why not, if it delivers enhanced profit to the law firm and a good and cost effective service to the client? A virtuous or virtual circle perhaps!

Outsourcing is something of a buzzword at present and I will come back to the idea on another occasion while noting that firms like Pinsent Mason, Slaughter & May, Simmons & Simmons, my former firm Eversheds and Berwin Leighton Paisner have all embraced the concept. They may be wary when it comes to quality and supervision (and their clients will want reassurance here too) but these firms are determined to try out the idea.

Which brings me to the hourly rate. The thoughtful article (Riding the Tipping Point, Legal Week – 4 November, 2009) by Chris Barnard, General Counsel of Coca Cola Europe and Ian Leedham, senior counsel, commercial and dispute resolution at National Grid, surprised me by asserting that hourly rates are a child of the 1970s and came about after fixed fees were held to constitute price fixing in the US.

Starting my career in the law, first at University in 1969 and then at Allen & Overy in 1973, I had always assumed that the hourly rate was the accepted way to charge. As with so many things in a legal career which now spans 40 years if you include three very enjoyable years at Oxford, I soon learned that there were other ways to charge for legal services but was blissfully ignorant that I had started my career at almost the same time as the hourly rate was becoming universally accepted.

The article points out that differing types of arrangements for billing come into fashion and fall out of favour regularly and highlights the work done on a fixed fee basis, by off-shoring and, interestingly, the advent of virtual law firms such as Axiom, Keystone Law and Berwin Leighton Paisner’s “Lawyers on Demand” service.

The authors go on to say that the hourly rate remains dominant even in these recessionary times and offer an explanation by arguing that it may not be in the interests of law firms to abandon the certainty of the hourly rate and embrace the concept of alternative billing because of their business model, internal cultures and fixed costs.

They go on to say that we may be reaching a tipping point when alternative billing arrangements become dominant because the profits of the top 100 firms have on average doubled in the last 5 years. The recession and the Legal Services Act will be catalysts for change and if private practice lawyers and the in house legal community do not work together to look at greater billing diversity and value analysis, the value of legal services will erode as businesses and in house teams find other ways to meet their needs.

Why is all this relevant to readers of the Smart e-Discovery blog?

I believe it is all part of a trend. Businesses are looking to cap their legal spend. The delivery of legal services can sometimes appear to be inefficient as it is often based on outmoded business models and practices which may work in the good times but which are exposed as cumbersome in times of economic downturn.

Most importantly, the outside drivers are beginning to have an effect. The Jackson Costs review, the new practice direction to Part 31, the technology questionnaire, cases such as Digicel and the recent case of Earles v Barclays Bank PLC all point to a momentum to make the litigation process more efficient and less expensive while not losing the quality of what is delivered. In some cases this may mean doing less than the Rolls Royce job because the case does not warrant it and in others it will mean delivering the Rolls Royce as quickly and efficiently as you can, partly by abandoning outdated methods and partly by embracing new ideas.

Technology has a role in this process. Its use needs to be considered carefully because you cannot make an informed decision whether to use the technology available if you do not understand the rules or what is out in the market place to help you.

The message for lawyers in these four articles appears to be simple. You will have to change and if you do not, life as you know it will change around you and you risk being left behind!