The e-Disclosure Information Project
E-disclosure – carrots and sticks in
Birmingham
6 December 2007
E-disclosure stands at the junction of two
specialist subjects – court procedural rules and business technology. A
judge, an e-disclosure consultant (me), the Law Society and a firm of
solicitors joined forces last week to bring the two subjects to
practitioners in Birmingham. When, last summer,
we started planning judicial training in e-disclosure in Birmingham, we
resolved to follow it immediately with an introduction to the subject for
local solicitors and their clients. If, as we anticipated, judges would
immediately start using their powers to manage disclosure at Case Management
Conferences, then practitioners deserved to be tipped off in advance.
The organisation was in the hands of the efficient Clive Black, the Law
Society’s Regional Manager for the West Midlands. The keynote speaker was
His Honour Judge Simon Brown QC, a specialist Judge in the Mercantile Court
in Birmingham, and I was the warm-up act. Our hosts were again Pinsent
Masons, whose Mark Surguy had first spotted that Judge Brown and I were
saying the same things from opposite sides of the case management fence.
The audience came from a wide range of West
Midlands lawyers – solicitors firms big and small as well as businesses –
and a senior official from the Courts Service, which is showing great
interest in this approach to civil justice. Our chairman was Des Hudson,
Chief Executive of the Law Society. That last
fact alone indicates the importance of this initiative. There is a fresh
wind around Chancery Lane suddenly, on other fronts as well as this one, and
the fact that Des Hudson came to chair the meeting is a sign of a hands-on
approach to practical issues which augurs well.
Some positive messages
I opened with a talk
which stressed some positive messages. It is common to think entirely
negatively about this subject – the burden of disclosure and the obligations
in the rules. There are plenty of positive messages.
For a start, if as a lawyer you have a lot of documents to handle, then you
probably have a big case to go with it. That seems to me to be a positive
thing if you earn your living as a litigator. If you can crack through that
job efficiently, by using the right resources, then clients might start
litigating again, and are more likely to come to you than to your slower
rival. The message to the judges
I summarised what I had said to the judges in the same room a couple of
weeks before – what the problems were, what software and services existed to
help with it and how the rules should be used to keep it all in proportion.
It was not right, I suggested, to blame the CPR for the time and costs which
go into handling documents. The documents exist. There are a lot of them.
The rules give judges power to control them. The technology which creates
them has solutions to manage them. Neither is being used as much as they
should. Combine the two, however, the tools to
hack through to the essentials and the powers to see that this happens, and
there are real savings to be made.
Knowledgeable clients
Economic downturn breeds disputes and there will be new work to be won.
Clients do not just want to know which lawyers in which court will achieve a
resolution most quickly and cost-effectively but are looking seriously at
doing some of the work themselves.
This is a threat, but it is also an opportunity
for lawyers willing to grab it. It is a leveller as well, because the secret
lies in getting the low-value work done with the right people and tools –
and anyone can buy those at a level proportionate to the volumes.
Software and services You do not even
have to buy them – software and services exist for rental by the case. I
gave the audience a quick tour of the solutions at every level and for every
stage. Companies like FoxData would identify and collect your sources.
Attenex or Recommind would crunch out the gold from the dross in a very big
case. I listed a few of the better-known applications available to hold,
sort, classify and filter document information, and some of the full-service
providers who would do as much or as little of the work as was required.
Smaller cases might be done in house by learning new skills or hiring ad hoc
staff. OutIndex, which pulls data out of message files and document folders,
costs £250 per year. CaseMap costs less than £300 and could be used for
handling documents and documents data even without its more sophisticated
features. Combine the two, add some skills, and the smallest firm could
manage e-disclosure. Staff recruitment and
retention The message was not just about
rules and technology. The generation coming into the profession was brought
up on computers and is not much interested in shuffling paper. Staff
recruitment and staff retention is at issue here, as is the departure of
women lawyers from the profession to raise families. They can remain as
members of the team from home if the documents are available on the web.
Birmingham Plc I closed with a summary of
the benefits for Birmingham Plc – the joint interests of the businesses and
professional firms of the West Midlands. They were, I said, fortunate to
have a judge who was keen to promote the civil court as a business-like
element in the business community. Together they could stem the flow of work
to London, even win work from London and elsewhere, by parading an attitude
to the management of civil cases which emphasised the brisk efficiencies
which could be brought to this most expensive and time-consuming part of the
process. Then I handed over to Judge Brown to
tell the audience how it would happen.
His Honour Judge Simon Brown QC
Judge
Brown summarised the changes in civil litigation during his career. The
handling of documents had become a disproportionately high element in the
conduct of cases. Civil litigation had shrunk, with 75% of contested cases
settling because costs of handling documents are so high in relation to
damages; firms have had to invest large resources into document handling;
and the case management involved in the overriding objective has curbed the
costs and allocated finite resources to each case.
Meanwhile, although 90% of records and documents are electronic, courts and
practitioners have either ignored them or reduced them all to paper. KPMG’s
recent report says in withering terms that the conduct of litigation has not
kept pace with the modern world. We are seriously in danger of going out of
business, he said, the lawyers commercially and the Courts as a public
service. What the CPR requires Judge Brown traversed briefly the rules
applicable to disclosure. Standard disclosure in Part 31.6 requires a party
to disclosure only three narrow classes of documents. The parties must make
only a reasonable search for documents and the scope is qualified by factors
such as the number of documents, complexity of the claim, the expense of
retrieval and the likely significance of what may be found.
The meaning of a document is a wide one including “anything in which
information of any description is stored”. The methodology for dealing with
electronic disclosure is covered by paragraph 2A in the Practice Direction
to Part 31. Search and inspection are supervised
by the court as soon as the Statements of Case have been exchanged. The
Practice Direction requires the parties to “discuss any issues that may
arise regarding searches for and the preservation of electronic documents”
and they must “co-operate at an early stage as to the format in which
electronic copy documents are to be provided on inspection”.
LiST and a Technology Questionnaire
Judge Brown referred to the work of LiST, the Litigation Support Technology
Group. LiST has drafted a Draft Practice Direction for the Use of IT in
Civil Proceedings, a draft technology questionnaire and example data
exchange agreements and protocols. The court would be sending out a
questionnaire in advance of the first Case Management Conference which would
enable the court to know and understand the method of disclosure proposed and
assess its cost/benefit ratio in the case. The Court could then direct and
control disclosure to ensure that it is done purposefully, cost effectively
and fairly. The Disclosure Statement Judge Brown stressed the importance
of the disclosure statement and the need for genuine knowledge on the part
of the person giving it. He gave an example of a detailed order which might
be made, narrowing the scope of disclosure to what was required to hear the
case fairly. No excuses Failure to comply with the Practice
Direction to Part 31 would invoke the discretionary management powers,
including costs penalties and striking out in extreme cases. The range of
resources available, both from third party suppliers and for in-house use,
meant that there was no excuse for non-compliance in a proper case.
Interest from above
Judge Brown said that the Regional and Area directors of HMCS were keen to
progress electronic documentation and filing as part of their drive to make
the court services in the Midlands second to none, within the limitations
that the Courts Service has in terms of resources from the Treasury.
He reported that the e-disclosure initiative had the blessing of the Deputy
Head of Civil Justice and the Senior Master of the Supreme Court, and the
enthusiastic backing of LiST. The judges involved in case management in the
Birmingham Civil Justice Centre and specialist judges throughout the country
were determined to implement it fully.
Business opportunities Judge Brown ended by referring to the business
opportunities here. Large firms of accountants, he said, are already making
money out of advising companies how to manage electronic information.
Solicitors should be able to guide their clients through the legal processes
and to do so cost effectively. The Courts were determined that the costs of
litigation do not become disproportionate so that only the rich could afford
to litigate.
The Courts and practitioners have common cause,
he concluded. The only difference is that the potential financial rewards,
which are enormous, lay with the solicitors!
Delegation and responsibility
Of the points raised afterwards, perhaps the most important was concern at
the idea of delegating legal work to non-lawyers or to machines. That is not
the idea, and would be inconsistent both what Judge Brown had said about the
disclosure statement and with the solicitor’s responsibility to client and
court.
It is, for example, for the lawyers to decide
what key words might help narrow down the document population and to agree
them with opponents and perhaps the court. The solicitor ought also to
decide on what is being searched, and understand any limitations on the
process. That did not undermine the idea that a computer process, used by
someone at lower rates and perhaps more skilled in the technology should
actually do the refining exercise.
Feedback and a Fair
Pinsent Masons provided us with drink and food, and the discussions
continued. The feedback to Judge Brown was very positive and I heard one
conversation about the possibility of deciding on the same software for a
case in which both solicitors were involved. Some wondered if it might be
possible to have a “fair” at which invited suppliers might show their wares
to interested firms.
I expect to be asked back to pursue discussions
like this. In any event, the Law Society had to turn away as many people as
it accepted for this event and there are plans for another such session in
Birmingham and possibly one in Nottingham. And that is just the West
Midlands The aim, in which I think we succeeded,
was to show a mixture of carrots and sticks on this subject. The potential
work is not just a matter of catching as much as possible of whatever
litigation arises, nor just a matter of enticing litigation work to the
region from other areas. There are whole new practice areas here for firms
whose clients will want to know what they should be doing in advance of
litigation.
Some acknowledgements
My personal thanks to Pinsent Masons for hosting the evening, to Clive Black
of the Law Society for organizing it and to Des Hudson, the busy Chief
Executive of the Law Society, for chairing it.
My thanks also to FoxData, who generously sponsored my time on the judicial
training. Ian Manning of FoxData was supposed to be there, but e-mailed me
as I set off to say he had just popped down to West Africa to collect some
data. I am sure he will just as happily pop up to the West Midlands the next
time Judge Brown wants to know what your data sources are.
If any questions arise from this, or if you would like to discuss anything
arising from it, please do not hesitate to
contact me.
|
