Burying our heads in the clouds

By | 19th October 2010

Did you see the 2004 film “Head in the Clouds“? I did not! But if you had you would know that the protagonists face unpalatable choices in 1930s Europe. In fact I had never heard of it until told about it by a lunch companion last week who raved about it. Whether it is any good or not, I do not know but a film with Charlize Theron and Penélope Cruz in it has something going for it in any event, I thought.

Apparently the film received poor reviews and has presumably sunk without trace. A pity, as I would have liked to see it now it has been drawn to my attention.

Burying your head in the sand is an evocative euphemistic expression of a failure to acknowledge or confront a problem. Ostriches are supposed to bury their heads in the sand but do not actually do so. The theoretical behaviour attributed to them derives from Pliny the Elder who wrote that ostriches are so stupid that they imagine that when their head is hidden the viewer cannot see the rest of them either! They have no need for this ridiculous attitude as they are very fast when threatened and expert at camouflage in the right terrain and have a fearsome kick which can seriously injure and even kill.

So where are we in October 2010? Do we face unpalatable choices today?
Heads in the clouds, flighty, over optimistic, driven by whim or head in the sand, taking cover, trying to avoid reality and failing miserably because everyone else can see what we are doing wrong.

A number of issues have streamed into my consciousness recently. Take for instance the whole idea of cloud computing.

Aficionados believe that this is the future and that law firms will save huge amounts of money previously spent on hardware in their offices by opting for internet based computer services and storage. According to Suzanna Ring writing in Legal Week, a recent 2010 Information Technology Report from Legal Week Intelligence claims that “the switch to internet based computing will save City law firms millions of pounds”.  [IT heads bet cloud computing will save law firms millions, Legal Week, 30 September, 2010].  With law firms having made most of the easy savings last year they are looking around for the next big idea and many law firm CIOs seem to believe that this is it.

The sceptics are not so sure. They have seen this all before. After all, technology was going to revolutionise the profession and there would no longer be a need for secretaries resulting in a huge saving in the payroll. But we know it did not quite turn out like that! Cloud computing is clearly here to stay but lawyers are rightly concerned about important matters such as confidentiality and data protection and not knowing exactly where the data they have outsourced actually resides and whether they can always gain access to it when they want to.

I may not mind if some of the data from my home computer was stored somewhere else (well, I would actually!) but I suspect that managing partners and heads of IT will regard it as a different kettle of fish altogether if a law firm “loses” or cannot gain access to its clients’ data and has to confess to the client or the court that it does not know where it is and even if it knew, it could not gain access to it as it was outside the jurisdiction (whatever that means in this context!)

I happen to think that the jury is still well and truly out on the whole issue of outsourcing. Despite that, I read that even Slaughter and May has set up a panel for outsourced business with providers CPA Global and Exigent believed to be on the panel. [Slaughters sets up panel for outsourced business, Legal Week 7th October, 2010]

I worry about what will happen to all the young lawyers who will not be trained by their chosen profession because all the work on which they would have normally cut their teeth has been outsourced to a cloud nearby or an outsourcing firm many time zones away. I am not saying that this should never happen, but if law firms are spending a substantial proportion of their funds on IT and can see a way to make savings by sending some of the work to lower paid people in India or even in lower cost parts of this country, it is hard to see why they would not do so. This is all the more likely, it seems to me, if one of the bi-products is reducing one of the greatest overheads, namely, staff costs.

There are large numbers of aspiring lawyers who have completed the LPC, the BVC or the GDL (don’t you just love the proliferation of acronyms?) but have no prospect of a training contract possibly ever, or in the case of one such individual I saw recently, not at any rate until 2013! What will happen to them?

Some will leave the profession altogether, some will become paralegals (if they can find a firm to take them on) and some will bide their time and try to do something which will enhance their offering when they ultimately take up the prized training contract. We are keen to look at this latter group as we believe that there is much to be said for polishing the skills of these aspiring lawyers by giving them a role as part of our offering to the legal marketplace in the realms of e-disclosure. I know that I would have been delighted to have a new recruit join my team who was already well versed in the intricacies of e-disclosure and the management of large amounts of electronic data.

May be the Russians will come to the aid of the party! There are so many cases before the English courts at present with a Russian element that they look capable of saving the entire litigation fraternity from the recession. They will certainly keep the Commercial Court busy this term and as long as the English legal system and its dispute resolution arm continues to offer something better and more efficient than they can find elsewhere I suppose they will keep on coming!

And then there is third party litigation funding! In common with many commentators, I have written about this before. I am a fan of the concept and believe it has a serious future although things are pretty quiet at present. Those with the money are already funding cases and waiting anxiously to see whether they recover their investment and make a profit. Those who are not so fortunate are finding it difficult to get off the ground. Again the jury is out.

My prediction is that we will continue to hear more about these issues as the year ends and 2011 begins and it is right that we should as they are important issues for law firms, lawyers and their clients alike.

What I cannot predict with any confidence is where we will be on these subjects in 6 months’ time. I would welcome any comments or ideas on what are thought provoking problems.

Our intention is to continue to offer a consultative service to our law firm clients in the field of e-disclosure, not by frightening them with stories of electronic bogeymen in the shadows (and not even members of the judiciary with a mad gleam in the eye intent on taking an axe to hard won costs)
but by being alive to the issues which our clients face and by offering to discuss rational and cost effective strategies with them for the benefit of their clients.

A head in the clouds will, I suspect, be of little use to them but our ambition is to offer a good deal better than a head in the sand!

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