Leaving it to chance

By | 15th June 2010

History is a wonderful thing and I am constantly amazed at how much of it appears to be a matter of chance.

There are numerous examples. For instance, I have come across the attached piece published by the Education Forum. I reproduce it in full, typos and all!

A significant event marking the international relations of the 18th century was the 7-year war (1756-1763). The war established England’s position as the greatest colonial and naval power of the times and allowed Prussia, led by king Frederic the Great, to confirm its status as a great European military power. It is nonetheless common knowledge that despite the king’s energy and military prowess, there was a time when Prussia was on the point of giving in due to its enemies’ (Russia’s, more specifically) overwhelming superiority. In 1761, the new British cabinet, led by Bute, stopped the transfer of funds to the Prussians. Given the circumstances, Frederic the 2nd found himself no longer able of carrying on the war. He even gave serious thought to abdication. But then there came about what the king himself named “the miracle of the House of Branderburg”.

In January 1762 tsar Peter the 3rd, a great admirer of the Prussian king, followed his successor to the throne of Russia. He commanded that the Russian army put an end to all operations against the Prussian army, which situation provided Frederic the Great with an outlet to his predicament. This remains an incredible happening in the course of history, its consequences reaching far deeper than would appear at first sight. Hence, it is known that Germany was unified around the kingdom of Prussia. Had Prussia been defeated, it would not have played such an important part in the history of both Germany and Europe. If this were the case, how would it have become possible for Germany to be unified? Would the two World Wars still have taken place? These are amazing questions, emphasizing the beauty of history. Such questions can be made use of during classes, as brainstorming or debate themes for students.

As I grow older I find I am increasingly attracted to a consideration of our history and how it relates to the present day. Of course you need to have an understanding of some of the major events along the way otherwise you do not stand a chance of associating them with modern events or places you visit. If you did not know that King Philip of Spain had watched his Grand Armada set sail for England in 1588 from the height afforded by the Torre de Hercules, a lighthouse on the Spanish mainland near Coruna in Galicia in north western Spain, a visit to the present day light house would be fairly disappointing.

The War of Jenkins’ Ear has always been a source of amusement. Who was Jenkins, I wondered, and why was his ear so desirable? The wonders of the internet reveal, as my history masters did not, that a British captain Robert Jenkins, is said to have exhibited his ear to Parliament after it had been severed in a skirmish during which his merchant ship, Rebecca, was boarded by coastguards off the Spanish coast in 1731. Clearly Parliament thought that the severing of the captain’s ear, along with other indignities suffered at the hands of the Spanish was sufficient justification to declare war on the Spanish Empire, although they took until 1739 to do so.

The Coalition Government is looking for cuts but doubtless the provision of a severed ear to today’s MPs would invoke a different result today! I hear calls for Health and Safety inspections and a commission of inquiry.

Matters of chance are the stuff of history.

It so happens that I was at Boscobel House in Shropshire last week on the 350th anniversary of the Restoration of King Charles II. One of the best known stories of the Commonwealth years following the execution of King Charles I in 1649 is the extraordinary escape of the young Prince Charles (later King Charles II) following his ill starred attempt to recover the throne of his murdered father and his defeat at the hands of Oliver Cromwell’s Ironsides at the Battle of Worcester in 1651.

Anyone with an eye for history will have noticed the profusion of pubs in this country with the name The Royal Oak. After fleeing from Worcester Charles travelled approximately 650 miles by a circuitous route to avoid the searching Roundheads and arrive at the south coast and take a ship to safety in France. Early in his travels he came to Boscobel House in Brewood Forest on the borders of Shropshire and Staffordshire. Living and working on the estate of local landowners Charles Giffard were five brothers. George, William, Richard, Humphrey and John Penderel (Pendrell or Pendrill, there are many spellings) were royalists and Catholics and they, more than anyone else, ensured that the instantly recognisable, swarthy, tall Charles (he was well over 6 feet tall at a time when most men were considerably shorter) escaped the clutches of his pursuers and others who were tempted by the £1000 offered for his arrest. Charles spent an uncomfortable night and the best part of a day in the branches of an oak tree near Boscobel House while Cromwell’s forces were searching the woods round about before it was safe for him to be led to safety and on his way out of his kingdom. **

What a magnificent chance that he found the brothers, that they were loyal and that the means of his concealment were so readily to hand. The troops ransacked Boscobel House and uncovered its priest hole so it was just as well Charles had not been concealed there. Without this act, and the help of many others along the route, Charles would certainly have been caught and executed and our history would have been very different

There is, of course, a difference between leaving it to chance and chance itself. The latter you can do nothing about. Indeed it is self evident that if you could do something about it, it probably would not be chance.

Leaving it to chance is decidedly more risky and might be regarded in many areas of life to be unwise. The young Prince Charles had no choice in the end but to allow himself to be spirited around the country by allies and to hope and trust that they did not get it wrong. Had he been able to plan matters better, he might not have found himself in his predicament.

Lawyers are in a better position. While the volume of electronic data they have to deal with is increasing as are the sources of the material (Blackberries, PDAs etc), the technology is getting better at sorting it all out, collating the data and filtering it and making it available for review. I am not suggesting that because there is more data and the technology is now cheaper, quicker and more powerful that there is some kind of virtuous circle emerging. After all, if that were the case lawyers would be in danger of being out of a job!

But the legal input into e-discovery is vital. Do lawyers think that e-discovery is not for them? If so, I fear they are making a big mistake that, in the end, will cost them clients, work and ultimately status. I well remember the days of paper discovery (and it was called discovery then!) and how adept lawyers came to be at sorting out the mountains of paper and extracting the vital sheets. I recall teams of paralegals with heaps of photocopied paper spending hours/days just to put the paper in some form of chronological order before the lawyers could start their review.

What has changed is that the input from lawyers is now vitally required at an earlier stage in the proceedings. Decisions need to be made earlier because decisions made early on about how a particular data set shall be processed will have a knock on effect later on in the process. It is not safe for lawyers to assume that this process can safely be left to others. The attitude that it is only e-disclosure and I don’t need to get involved at this stage does not wash any more. It really is leaving it to chance to adopt that approach. Worse still is the attitude which says that I am too senior to do this and someone else can take the pain!

This is all wrong. Lawyers do not need to be techies. It is quite in order not to be. But at least they should have the sense to seek to understand what is involved in the process and then partner with an expert so that they are not taken by surprise. Lawyers would not dream of letting their client go to trial without a medical expert in a personal injury matter or an appropriate technical expert in a case in the TCC or even without Counsel in certain cases and yet do not take e-disclosure seriously enough to warrant consulting an expert in the field.

Lord Justice Jackson urged that lawyers and the judiciary should receive more training in e-disclosure. There are plenty of courses about the law but what is really needed is courses on what the technology can do and how this may be of benefit to the lawyers. In this way lawyers will be better able to explain to their clients why they should spend money on e-disclosure and what may be the result if they do not. It is all about the planning and not leaving it to chance.

If Charles had been able to plan things he would not have been stuck in an oak tree on a pouring wet day while people out to capture and execute him were hunting in the woods below. If Jenkins had not lost an ear in a skirmish off the Spanish coast would there have been the subsequent war? If Germany had not been united around Prussia would there have been either of the World Wars?

Leaving matters to chance is a chancy way to operate!

** If you have read this far, you may be interested to know that I am descended from John Pendrill through my mother’s family. As I result, I hope I am permitted to indulge in a little bit of personal family reminiscence!!