Nailed to the perch

By | 4th May 2011

When I first started writing this blog way back in August 2009, I decided that the purpose was to give a partly serious but also partly light hearted view on the world of e-discovery/disclosure.

There are, out there, any number of learned and serious articles, blogs and tweets on all aspects of e-disclosure and some are even in the Smart e-Discovery blog! My purpose was slightly different! I thought there would be interest in the views of an experienced former litigator from one of the larger law firms who had migrated towards the delivery of services to lawyers in the e-disclosure field. I may be tempting fate but almost 150 posts later (and many more by my colleagues) we have a loyal readership both directly on the blog and also on Twitter.

Apart from that, I have enjoyed writing the posts and, sometimes, I have even enjoyed the comments which follow!

So today, I want to start on the subject of rats.

The newspapers and news feeds have been dominated in recent days by the Royal Wedding which, for once, knocked the ongoing conflict in Libya off the front pages to such an extent that the report that a recent raid had resulted in the death of one of Col Gadaffi’s sons was relegated to an inside page.

But what about the death of Osama bin Laden? Whatever the facts may be, I found the most extraordinary aspect of the reports was that President Obama could, in real time, watch the raid on the compound in Abottobad which resulted in the death of Osama bin Laden and three of his associates. Extraordinary because it is possible for the President to do that and extraordinary that only a couple of weeks ago I was writing about soldiers conducting wars from their desks! [The old order changeth, 27th April, 2011]

I was not going to write about rats, but today I sat in the sun in the park with a cup of soup next door to a rat. Now I know that it is said that in London you are never more than a few feet from a rat and this one was every bit as close to me as that. When I was in South America for the first time in the 1980s, I was tempted to try the Peruvian delicacy of cuy (guinea-pig), which may upset my sensitive reader, and when the cooked cuy duly arrived, it was stretched out on its back spread-eagled on a wooden board, head and all, teeth bared complete with accompanying vegetables.

My rat (I am not normally proprietorial about these rodents but this makes it clear which rat I am talking about) was lying on its back in the sun with its feet in the air. What amused me more than the fact of a rat lying in the sun on its back was not that it was dead (which it was) and that a dozen or so of the brightest coloured blue bottles were investigating the corpse, but the reaction of other people which ranged from the nervous giggle to the sideways glance to an all out scream and avoiding action as if the poor thing was about to spit poison at anyone who came within range.

The Black Death has more than once resulted in a major reduction in European population most recently in 1348 and 1665 and rats have always been associated with the carrying and spreading of disease. But this one was dead. As John Cleese would have said, “This rat is no more! He has ceased to be! He’s passed on! He’s expired and gone to meet his maker! He is an ex-rat!”

So, when I wrote the other day about the old order changing giving place to the new, I was further prompted to reflect on this phenomenon by the coverage given in recent weeks to the “accomplishments” of Yuri Gagarin and the first manned space flight in 1961. Connections between events are an endless source of fascination for me and the old order was shown to have changed dramatically by the achievements of one of the most eminent living Britons, as chronicled in a recent atricle in the Daily Telegraph by my friend, barrister John Bromley-Davenport [Sir Bernard Lovell: he knew the future was out of this world, The Telgraph, 19th April, 2011].

Sir Bernard Lovell is the father of radio astronomy who was responsible for the construction of the great telescope at Jodrell Bank in Cheshire. The telescope was used to track Gagarin’s flight being the only device in the world which could detect the carrier rocket or intercontinental ballistic missile! It was subsequently used to track all the great events of the space race including the first Moon landing in 1969 and Lovell was even asked to monitor the launch of Russian rockets during the Cuban missile crisis.

I knew what John meant in his choice of title –  “He knew the future was out of this world.”  Bernard Lovell is now in his late 90s and while his scientific achievements are immense, the last time I met him and talked to him in 2008 at a party for my mother’s 90th birthday he was one of the most down to earth people imaginable.

My colleague James Moeskops is currently one third of the way through a series of 6 articles on the way in which the technology of Index Engines is changing the face of the way lawyers do discovery/disclosure [see We’ve got it taped #1 of 6, 14th April, 2011] but I want to leave you today with a thought which arises out of the Legal Services Act.

A recent article in The Lawyer  [Irwin Mitchell: we’ll float and take on the mid-tier,  25 April, 2011]  reports that Irwin Mitchell intends to convert to an alternative business structure and go head to head with mid tier corporate firms.

I have been surprised that not more is being made of the Legal Services Act which comes into force later this year but Irwin Mitchell seem determined to be in the vanguard of change. They talk about the “deconstruction of the law” and “trying to reduce it to an operational process.”

While it is uncertain whether the firm will go for an IPO or invite outside investment from a third party, it is clear that the firm intends to take to heart what Richard Susskind and others have been saying for some time. Firms which de-skill the process-driven parts of the legal process and offer the results to clients at a lower price than their competitors will gain an advantage in the marketplace over those who cling to outmoded ways of delivering the same at a vastly inflated price.

Electronic disclosure is part of the answer for litigation lawyers as I have argued for many months now and I was particularly pleased to be contacted (while writing this piece) by a law firm about conducting an in-house seminar on e-disclosure. The firm admits it is not well versed in the subject but its partners appear to have taken on board the comment by His Honour Judge Simon Brown QC in Earles v Barclays Bank that unfamiliarity with the Rules and a failure to comply with the CPR amounts to “gross negligence.”

As Bob Dylan sang, “The times they are a-changing.” Whether a dead rat or Osama bin Laden, time waits for no one and litigation lawyers are no exception.