My brief report on the subjects raised was in my post last week entitled “Litigating in the 21st Century“. Many of you will be familiar with the themes of the final series of Blackadder with Edmund and Baldrick in the trenches with Hugh Laurie and Stephen Fry’s Melchett and the wonderful “Darling” back at base. The frivolity and sheer fun is overshadowed throughout by the grim awareness of what is going to happen and a realisation that, for all their silliness, the men in the trenches are about to go over the top.

Are we witnessing something similar in relation to the legal profession? Richard Susskind clearly thinks it is possible and in his book “The End of Lawyers?” he offers the prognosis that the legal profession face the twin threats of the commoditisation of legal services and the development of new and pervasive (disruptive even) technologies.

You do not have to agree with the good professor to see that the recession has altered life for lawyers for ever. By this I don’t just mean those who have lost their jobs, but if you have any familiarity with the legal marketplace you will know that it is a very different place to what it was 5 years ago and, on the basis that you cannot easily put the toothpaste back in the tube, is likely to remain so. It does not matter if you are fresh from university, a trainee, a newly qualified, an associate or a partner. You will know that the pressures are immense and you will be aware of that (or you should be) well before the Managing Partner comes to call.

Just consider the list of topics discussed last week and set out in my post. To take a few of them, such as online dispute resolution, outsourcing or third party litigation funding, I think you will agree that none of this was foreseen 5 years ago by anyone apart from a few brave souls, such as Richard Susskind, who were roundly criticised and ridiculed for their ideas at the time.

What is undeniable is that Rio Tinto’s former General Counsel, Leah Cooper, struck a deal last year with CPA Global to outsource low level legal tasks to CPA lawyers in India so as to free up her internal team to deal with some of the more complex matters which otherwise might have been sent to outside counsel at considerable cost. The result was a saving of $14 million or thereabouts AND Leah has now left Rio Tinto to join CPA!!

If you still do not believe that anything much has changed, think about the client who has discovered the savings to be made from outsourcing, and ask yourself how that client can ever justify not putting the question to the test in the future. The genie is well and truly out of the bottle and cannot be put back.

When the chips are down Baldrick always comes up with a cunning plan, usually absurd and always treated with ridicule by Blackadder. Nonetheless, he keeps on coming up with ideas. In the final episode, with Capt. Blackadder preparing for the “final push”, he asks, “Why can’t we just stop sir? Why can’t we just say ‘no more killing, let’s all go home’? Why would it be stupid just to pack it in, sir? Why?”  It seems that some absurd ideas are firmly grounded in commensense and a natural human inclination for survival.

The legal profession needs to keep thinking about its future because the option to stand still is not really a true option. The delivery of legal services has become too expensive with lots of routine and repetitive legal work being undertaken at great expense by junior lawyers and in any event, the development of technology allows for the commoditisation of legal services.

Remember my hope for 2010 is that lawyers will spend time thinking about strategy before they are up against it in terms of time or expense. Once clients have seen what the e-disclosure tools can achieve and the reduction in review costs as a result, will they ever go back to the old system of paper review? In the TV series Baldrick never gets to explain his final cunning plan to escape the trenches, as he is sent over the top before he can reveal it. Have you got a plan? If not, it might be a good idea to formulate one before somebody asks you to take a leap into the unknown.

Frankly, not a lot of strategic thought can be undertaken when the disclosure deadline is only days away and there is a terabyte of data to review and the other side has just produced more material than you thought possible or likely.

Of course, if you have plenty of time you can mull over strategy to your heart’s content but most litigation cases do not allow the participants that luxury!

So, how can you make time?

Much of the technology now available is quick and cost effective but like most processes it relies on quality material to produce the best results. We are all familiar with the cry: “Rubbish in, rubbish out”! You get my meaning.

What would make the job of the lawyer and the e-discovery service provider easier?

If the case of Earles v Barclays Bank PLC  means anything, it means that practitioners not only need to be aware of the provisions of the CPR but also to abide by them. Remember that Judge Brown said that it was “gross incompetence” not to! That is a harsh warning to the legal profession that, if they do not follow the rules, not only will they run the risk that their clients are penalised in costs, but also they run the risk of being sued for negligence which will not please their professional negligence insurers.

Judge Brown was speaking in the context of Part 31 and its Practice Direction in relation to disclosure in general and e-disclosure in particular. In the next few weeks, the Rules Committee is likely to publish the long awaited Technology Questionnaire and the new Practice Direction and suddenly there will be a new regime for lawyers to come to terms with.

Many firms are taking or have taken steps to deal with the increasing prevalence of electronic disclosure. It is surely inescapable that, after at least 15 years or more of widespread use of emails, almost every piece of contentious work is going to involve consideration of some electronic material. Where you used to make do with the paper file, now you find that at least some of what would have been committed to a paper file in the past has now not been committed to paper but is the subject of email or is in some other electronic format which might be germane to the issues and which at least needs to be looked at if not disclosed.

In the past few weeks, I have noticed a remarkable upturn in requests for information and training presentations which suggest to me that there are more and more lawyers out there who realise that they cannot ignore electronic disclosure, even though there are inevitably some who, for the time being, have decided “we do not need this now”. Well, we will see!

Where lawyers and their clients can really make a difference is by thinking ahead strategically while there is time and by that I mean while there may not be a pressing need. Once the heat is on is not the time to start thinking about strategy because looming deadlines will not allow for that.

A switched-on litigation lawyer said to me recently that she relished the opportunity to look around the marketplace to see what was there and what might be useful and to make relationships with potential suppliers before she was under client or time pressure in an area which is becoming commonplace and where there are a number of differing solutions available. Armed with that knowledge, she felt she was in a better position to talk to her clients about:

• Records management policy.
• Storage and preservation of documents in paper or electronic form
• Computer systems, storage systems and other devices where material is stored
• An audit of company equipment such as mobiles, PDAs, photocopier logs, and voice tapes.
• Litigation readiness in general.

This last area is a huge problem for corporates. It costs money and the time never seems to be right to use hard pressed budgets for something which might never happen. But if the FD knew, or the company’s lawyers knew, that once litigation was in prospect they could easily access the information they needed to succeed in or defend their claim successfully, what price would they place on that ability?

To take a simple example, why do we all keep documents for which there is unlikely to be any future use? To put myself in the firing line, I was clearing out a drawer at home the other day to make space for the ever increasing amount of junk I seem to need to keep in my desk, when I came across a sheaf of old credit card slips. On closer examination, most appeared to date from 2001 and had no obvious connection with one another. They did not appear to be expenses claims never made nor did they concern a series of purchases of related items. Why had I kept them? I could not remember, but presumably I had thought they would be useful at some stage. Obviously they were not and I shredded them. My point is clear I hope. If you have a policy which is well thought through and retain only that material which is realistically likely to be useful you will not end up storing stuff you don’t want or need nor will you waste time, space and money in doing so. When it comes to litigation, there is also a fair chance that you will have stored the remainder in such a way that it is relatively easy to retrieve.

My friendly switched-on lawyer also said to me that she always adopted the line with clients which she had been trained to adopt when a junior lawyer. In effect, she confirmed what I had always thought to be the case. Disclosure is really no different to old fashioned paper discovery despite the name change. You identify the place where the paper (and it was all paper in those days) was stored and you went and looked at it, in a desk drawer, in a filing cabinet, in an office, in a warehouse or wherever it had been stored. Nothing much has changed. Disclosure still means you have to enquire where the material is stored or backed up and you still have to work out how best to retrieve it, process it and then analyse it just as you did before. There really is no magic in e-disclosure. Granted some of the technology is pretty clever but most of us do not need to understand how it works. You need to know what it can deliver and once you have obtained the material to be processed you can let the provider work his magic and then, within a few hours or days, start the process for which lawyers rightly earn their fees, the analysis and review of the material with a view to advising the client.

Time spent in reconnaissance is seldom wasted is what the military often say. With e-disclosure, this is also true. Litigation readiness and a willingness to apply the same rigour to the retrieval process as used to be applied in the past will actually reduce costs in the long run. After all, why retain documents you are never likely to need again? It is as bad as retaining useless old credit card slips!

As always, technology can help identify relevant documents and reduce the time required for review. But you have to have had a system which enables you to retrieve the material swiftly and accurately before you get there!

My switched-on informant (I am not sure there is a feminine equivalent for that word) also thinks that an ability to talk about this kind of strategy with a client and to be able to demonstrate the possibility of saving money (speculate to accumulate??) while at the same time improving the chance of being well prepared to fight a piece of litigation is a way to build long term relationships with her clients.

Millnet is increasingly talking to clients about strategies, project management workflows and in the end long term relationships on a contractual basis. A lawyer does not necessarily know what the long tem effects of a whiplash injury may be. An expert (a doctor) is instructed to advise. A lawyer goes to other experts for advice, engineers, Quantity surveyors, the Bar. Litigation Support providers are no different. Why not treat them as experts? After all, many of them are extremely proficient and expert in their field! Many of them will have had experience of more cases and how you solve the problems they throw up than the lawyers instructing them.

Act now! Make the call! You may be pleasantly surprised.

[Charles can be contacted on 020-7422-8800 and more details of Millnet's Smart e-Discovery services can be found at http://www.millnet.co.uk/smart_e-discovery.html]