Monthly Archives: December 2013

Too soon to say

“It is too soon to say.”

Attributed to the former Chinese Premier, Chou en Lai (or Zhou Enlai), this response was, probably erroneously, thought to have referred to the effect of the 1789 French Revolution! 

These days, it appears to be more widely accepted that the words referred to the street protests in France and other European countries in 1968 and that the context had been lost in translation. I don’t know whether that is right but the remark was made in either the late 1960s or early 1970s, and it makes more sense if the reference was to events a few years earlier rather than events almost 200 hundred years before, however deliciously cautious the remark may have been. In the time of Mao Tse Tung ( or Mao Zedong), it did not pay to be too outspoken in one’s views or too hurried in your judgment.

So, at the end of the year which has seen the introduction of the Jackson reforms into civil litigation, where are we now? Continue reading

Less is More

I have recently finished reading “Tomorrow’s Lawyers” by Richard Susskind.

If you are interested in the practice of law in the future, I urge you to read this book. 

As a commentator on the law and lawyers, Richard Susskind is thought provoking and fascinating with eloquent views on the future of the profession of law and tomorrow’s lawyers. Typically there is good news and also bad news!

The quote from the blurb at the back of the book states that “the future of legal service will be neither Grisham nor Rumpole.” Continue reading

Cooperation in eDiscovery

Cooperation has been defined as the process whereby two or more people or organisations work together for their mutual benefit as opposed to working against one another for their own gain.

The mules in the picture above are joined together by a rope but they work out that a measure of cooperation is required if they both want to eat the food from the piles at either side. In other words, for at least part of the time, they need to face in the same direction and go together towards the food rather than confronting one another at every moment.

The parties to a dispute will find that if they cooperate about how the case can be managed, they will usually find that the process is completed much more smoothly and more cost effectively (cheaply) than if they argue over every little nuance and issue. This emphatically does not mean that the parties should collaborate with one another to the detriment of both but does mean they can and should discuss ways in which the dispute may be more efficiently managed to the mutual benefit of each other. Even if the matter has to go to court to be decided by a judge, the cost of that process in monetary terms and in personal wear and tear is likely to be considerably less than if they have previously argued about every dot and comma along the way.

The courts and those who frame the rules by which litigation is conducted on both sides of the Atlantic recognise the force of this position and require the parties to a dispute to meet and confer in accordance with Rule 26(f) in the USA and to comply with CPR 31.5(3-8) over here and in particular to attempt to agree the ambit of disclosure in advance of the case management conference.

It is at this time of the year that the Georgetown UniversityLaw Center’s Advanced e-Discovery Institute holds its annual session in Washington DC. This year, Craig Ball who writes regularly on E-Discovery and computer forensics, is teaching the virtues of cooperation in practice.

Written in his own entertaining and particular style, Craig’s recent post on this subject contains a list of questions which the faculty will be addressing at the conference. 

He introduces the subject by confessing that he originally had doubts about teaching cooperation to a bunch of lawyers because it brought to mind the old caveat about trying to teach a pig to sing (it wastes your time and it annoys the pig)!!

However, having read the article and the list of questions, it is hard to disagree with Craig’s conclusion that

“we don’t cooperate and promote transparency to help the other side.  We do it because of the genuine and significant benefits it affords our side.   It allows us to move forward with greater safety and certainty, conserves money and time and forestalls misdirected effort. Moreover, cooperation supplies useful intelligence about an opponent’s knowledge, capabilities and expectations. Finally, cooperation builds trust, and trust fosters the ability to secure concessions and resolutions.”

Parties to disputes should take this to heart. If they do not, they will fail to realise the benefits which cooperation can bring and they may well incur the sanction of the court and the wrath of the client.



The Right Approach

Millnet sees a wide variety of cases during a year and deals with literally hundreds of lawyers.

Of course, every case is different but occasionally a case really stands out as worthy of comment either by its subject matter or the problems disclosed.

Confidentiality forbids identification of the case and the naming of names, but we were instructed recently in a case where, in our view, the lawyers had adopted exactly the right approach to the problems of eDisclosure.

What was particularly encouraging was that at the initial meeting we attended, the lawyers had invited their clients, their counsel and Millnet, as well as the client’s IT manager, to discuss the strategy and approach to the case way in advance of the CMC.

The new rules provide for a significant amount of work to be done on disclosure prior to the CMC and in this case, an excellent start was made at a time when attention could be paid to mapping out the way forward without the pressures inherent in a last ditch meeting to cobble something together before the CMC. It remains to be seen what happens with the case but this was definitely the right approach.

During the same week, a lawyer attending one of our recent in house workshops, sought to summarise the main thrust of the talk by saying he understood now that the best way forward was to contact Millnet as early as possible before anything untoward could happen. I could not have said it better myself!

It is always worth highlighting best practice in relation to eDisclosure and these are two excellent examples.


Jackson strictly enforced

I would love to be a fly on the wall the next time Sir Rupert Jackson is asked for his reaction to the latest consideration of his reforms by the Court of Appeal in Andrew Mitchell MP v News Group Newspapers Limited [2013] EWCA Civ 1537.

Last week the Court of Appeal dismissed Mr Mitchell’s appeal against the earlier order of Master McLoud who refused to allow his solicitors to file out of time a costs budget in excess of £500,000 for his libel action against The Sun. As a result of the Court of Appeal decision, the  former Chief Whip has had his costs budget capped at the cost of filing the claim and any court fee. It has been reported that that figure is £2000.

It is possible to look at this in a number of ways. Continue reading