Monthly Archives: May 2012

California dreamin’

After some of the most miserable weather I can remember at this time of year it was something of a relief to fly off to Santa Barbara, California earlier this month to attend my second conference held by the Litigation Counsel of America. On this occasion I was also accompanied by my colleague Naj Bueno.

The venue was the Four Seasons Biltmore resort at the eastern end of Santa Barbara where the conference unfolded over two days in near perfect weather (once the sea mist had burned away each day). Starting with a Millnet sponsored cocktail reception for the approximately 150 Fellows and their guests in the garden of the hotel, we were greeted like old friends. That first evening culminated in a splendid dinner at the San Ysidro Ranch kindly organised by Carol Owen of Waller Lansden Dortch & Davis LLP in Nashville Tennessee and Adam Arceneaux of Ice Miller LLP in Indianapolis.

The conference got underway after early breakfast when I confess to feeling better than I had any right to, and we were soon into the swing of events “netquestering” jurors from the internet and discussing intellectual property litigation. A highly entertaining and effective lecture by Ken DeMoura followed, entitled “Internet Toolbox for Trial Lawyers” with humorous examples of where lawyers may gain assistance from slightly off the wall websites to ensure they are up to speed with the parties on the other side. Ken has recently set up his own firm in Dedham, Massachusetts after a spell as a Partner at LeClair Ryan. Via seeking redemption from a “judicial hellhole” we moved on to what cross border litigators need to know about the US-Canadian paradigm and finally that day to our session entitled “Predictive Coding: A Sea Change in E-Discovery?”

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Cooperation does not mean collaboration

I enjoyed my life as a commercial litigation lawyer.

Early in my career, I learned that the most important person in my working life was not the client, important as the client clearly was, nor the partner for whom I worked, although it was certainly important to have a good working relationship with him (in my experience it was always “him” in those days). No, the most important person in the office was the managing clerk.

I suspect I am right in saying that there is no such animal today. Today, with its all graduate entry into the profession and the obsession with paper qualifications often to the detriment of any real understanding of how to make things happen, law firms are full of paralegals, contract lawyers, trainees (not articled clerks) and other apparently brilliantly qualified individuals.

In the dim and distant past, there was a small and highly skilled group of people who really knew the nuts and bolts of the litigation process. They were not partners, nor solicitors, indeed in many cases, they had no formal qualifications at all but they were a mine of detailed information about the rules and how to interpret them. Most importantly in my case was their friendship with all and sundry “down at the Courts” as a result of which they appeared capable of arranging for summonses I had failed to have issued, to be issued without fuss and within the relevant time limits even if the resulting document was covered in rather more red stamps than I had hoped!

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The Great Mosque in Cordoba in Southern Spain is one of the wonders of the modern world.

It is not that new, of course, dating from 756 AD when the Caliph of Damascus set up his court in Cordoba and constructed the mosque on the site of an earlier Roman Temple of Janus which had itself been converted into a church by, of all people, the Visigoths. In 1236 the city was captured by Ferdinand 111 as part of the Reconquista (culminating in the expulsion of the Moors from mainland Spain in 1492). Ferdinand was responsible for the cathedral we see today, which is effectively a Christian cathedral housing an Islamic mosque on the site of a Roman temple converted into a Visigoth church!

It is often forgotten that there have been periods of our history when different religions and cultures have co-existed. One such place was Cordoba where there was a significant toleration of different cultures giving rise to an explosion of artistic and intellectual predominance. Other examples include the influence of Ancient Greece which extended as far East as India and west to Spain and encompassed much of northern Africa. No one pretends that all this globalisation was achieved smoothly or that the results were uniformly benevolent but nonetheless globalisation has been with us a long time and we are seeing further extensions in our own time.

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It’s information governance, stupid

With a backward glance to the phrase widely used by President Clinton’s campaign team about the importance of the economy to the US electorate in 1992, in contrast to the campaign of the incumbent President Bush (the first) which relied on achievements in other areas such as foreign policy, I was interested to read the thoughts of Senior Master Whitaker on the subject of Information Governance published in the New Law Journal recently:

A brighter future:  Master Whitaker suggests a framework for improving the practice & reducing the costs of e-discovery, 30 March 2012.

Steven Whitaker is well known as an advocate of the proper use of technology in relation to the ever increasing volume of ESI which lawyers have to confront in modern litigation and his article encapsulates the approach which increasingly the courts will impose on litigants in common law jurisdictions.

The views expressed are not new. Indeed, the Master addressed the plenary session of the Singapore Conference on Electronic Disclosure in August 2011 in these terms. The views are, of course, even older than that as his references to cases such as Earles v Barclays Bank Plc [2009] EWHC 2500, Goodale v Ministry of Justice [2009] EWHC B41 (QB), Nichia Corp v Argos Ltd [2007] EWCA Civ 741 at [47], Jacobs LJ, and Digicel (St Lucia) Limited v Cable & Wireless Plc [2008] EWHC 2522 (Ch) make clear.

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Considered, deferred, denied

I remember what happened to each of the six wives of King Henry V111 by way of the doggerel:

“Divorced, beheaded, died,

Divorced, beheaded, survived.”

This is not the time or the place to go into details! It is sufficient to say that after many years on the throne, married to Catherine of Aragon, the King gradually became obsessed with the need to father a male heir, which, together with the connivance of Thomas Cromwell, set in train the momentous events involving the break with Rome and a new State religion, the effects of which we are still living with today.

Can we say the same about predictive coding?

After some considerable time during which disclosure was mainly handled by teams of lawyers handling ever increasing volumes of paper, we moved on to a general acceptance that some form of technology would have to be used if the exercise was not to take far too long and become ruinously expensive. The debate now ranges over the various techniques which can be employed and one of those, as readers of this blog will know all too well, is computer assisted review or predictive coding. Continue reading