Why is a raven like a writing desk?
Dreams are like that! Poor Alice was confronted by a dysfunctional tea party where the Hatter ruled the roost, made outrageous personal remarks and asked questions to which there was never an answer and everyone moved randomly around the table trying to disturb the sleeping dormouse in the teapot.
So why is a raven like a writing desk? Of course there is no answer to the riddle!
At any rate, the (Mad) Hatter had not got one although later on Lewis Carroll offered a lame and possibly unlikely solution: “Because it can produce a few notes, though they are very flat; and it is never put with the wrong end in front.”
Lewis Carroll is in the news again, this time because of a new book by journalist and author Simon Winchester called “The Alice behind Wonderland.” Many people will remember Winchester’s best-seller The Surgeon of Crowthorne about the origins of the Oxford English Dictionary and one of its contributors incarcerated in Broadmoor Criminal Lunatic Asylum as well as his tome on one of the largest ever volcanic explosions, the eruption of Krakatoa in August 1883. If those previous books are anything to go by, this one will be worth reading.
It is peculiar that many people are dogged by photographs of themselves in unintended poses and Lewis Carroll was no exception. According to Winchester, Lewis Carroll’s interest in wet-plate collodian photography and the Victorian passion for childish innocence landed him in trouble over his friendship with the young Alice Liddell.
I mention this only because the recent picture of Lord Chancellor (and Secretary of State for Justice) Ken Clarke, listening intently to George Osborne’s Budget speech threatened to land him in trouble too! Was he asleep or merely resting his eyes after a hard time at work?
The MoJ has certainly been busy and perhaps Clarke is entitled to feel tired as a result.
In the space of a short few days we have had:
- The Government’s proposals for reform of No Win No Fee.
- Plans to implement the reforms proposed by Lord Justice Jackson.
- The Guidance under section 9 of the Bribery Act.
- A date for the Bribery Act to come into force (1st July).
- A draft Defamation Bill.
See the useful summary by the litigation team (Clark Sargent) at Wragge & Co of the main proposals as they affect litigation funding. [Civil litigation funding and costs – reform is on the way, Wragge & Co, Analysis, 31st March, 2011] There is no indication when the Government will find time to introduce the legislation necessary to implement the report. This seems to be all of a piece with current legislative practice where proposals are made but no timescale is laid down for future action or, in the case of the Bribery Act, the promised guidance is not published in time for the Act to take effect on its due date which is then deferred for a period of months while the guidance is drafted.
Now we have the draft Defamation Bill and judging by the underwhelming reception given to the draft by commentators and lawyers alike, there is a long way to go before the final proposals are agreed let alone the legislation enacted. See for example a recent article in The Lawyer and the comments inter alia of Dominic Crossley of Collyer Bristow, who acted for Max Mosley in his recently successful claim against News International. [Focus: Defamation, Clauses célèbres, The Lawyer, 28th March, 2011]
You do not have to be away for long before you miss something important. I have been skiing in the Italian Alps and have returned to this welter of legislative proposals but the report which interested me most was the report in The Lawyer when I was away, on the subject of the e-Disclosure . [The Lawyer’s great debate: e-disclosure, 21st March, 2011]
Others have already commented on the details of the hour long town hall debate but it seems to me that it is important to list the points which strike me as being useful to the busy practitioner. It is of course essential for any vendor not only to be good at selling the products on offer but also to make those products and their functionality relevant to the kinds of problems faced by lawyers and their clients in this rapidly changing area.
With that in mind, my offering is as follows:
- Senior Master Whitaker called keyword searches “totally ridiculous.” I cannot be sure he actually said that because I was not there but there are plenty of cases where “ridiculous” keywords are selected resulting in many more hits/false positives than anyone imagined in a data set.
- No one claims computer generated decisions as to relevance are more reliable than human review, although there is some evidence that it is every bit as good and remember computers don’t get tired whereas tired lawyers can and will make mistakes). Someone will correct me if I am wrong but I think the point is that predictive coding has arrived and while some may not be entirely comfortable with its accuracy and reliability we cannot afford to look at absolutely everything because it is too time-consuming and too expensive. Part of the strategy around the whole subject matter of disclosure needs to involve at the very least a consideration of some of the electronic methods of reducing the time and cost involved.
- Phil Beckett of Navigant commented that if we printed everything out as we used to when we ended up with four lever arch files we would now have to measure the resulting paper in terms of two to three times the height of the Empire State Building. He is right. Something has to give and technology is part of the answer.
- The panellists commented on whether the Practice Direction 31B (and the Electronic Documents Questionnaire) was working. Too early to tell is my favourite comment and this observation dovetails with our experience although using the questionnaire and its terms and questions appears to be driving practitioners towards best practice even if there is as yet no reported case where the decision has turned on the EDQ.
- The cost of disclosure should be assessed at an earlier stage than previously. I have written before about LPOs and the inshoring practiced by some of the well known law firms in this jurisdiction. We are making increasing use of our Smart Insourcing team of paralegals for a variety of tasks including scanning and coding and document review. They are LPC graduates and are keen to hone their skills to take something distinctive with them when they go to their training contracts. They have recently completed an eight week descriptive coding job for a major London law firm and their rate of £35 per hour is, I am told, as good as it gets in the market.
Just a snapshot and not an incriminating photograph! I will leave that to Lewis Carroll and the Lord High Chancellor. I have to say that the full title of Lord High Chancellor sounds like Gilbert and Sullivan. I am happy to accept the denials by officials from the MoJ to the effect that Ken was NOT asleep. He was just thinking about that monstrous tea party in Wonderland and about pouring the dormouse into his teacup doubtless with a hole in the bottom.