Mind the gap!

By | 9th February 2012

It is easy to overlook the fact that London is a very green city. It is a fact! Fly over it and you will see what I mean. Consider Highbury Fields to Victoria Park, from Greenwich to Crystal Palace and Richmond taking in Hyde Park and St James’s Park; there are few cities with more greenery. Add to all that, the tree lined streets and the myriad of smaller parks and open spaces and you have not so much a green tinge but a veritable green covering.

London is fortunate in this regard as are the people who live and work here. By contrast, I am struck by the relative lack of green spaces in New York. Before anyone takes me to task, let me say that I have a great fondness for Central Park. I have no idea who originally thought it would be a good idea to leave a vast open space in the middle of Manhattan, still less what its real estate value would be if it were ever to be developed. But what a courageous and fortunate decision it was!

The green lung in New York on a cold bright sunny day in winter is hard to beat. Every time I visit I am struck by something I have previously missed. Last week, thankfully free of the snow which plagued us all last year at Legal Tech, it was possible to spend time on Sunday walking in the park in shirt sleeves. The magnificent American elms (how I miss our English elms!), the red squirrels, sadly long gone from all but the most remote parts of the British Isles and grand statues of such as Robert Burns, Hans Christian Andersen and even William Shakespeare, make the park a wonderful place to stroll and the Boathouse a good place to stop for refreshment.

This year, I even came across a huge tableau depicting the Mad Hatter’s Tea Party complete with Alice, the Hatter, the White Rabbit, the Dormouse and of course the Cheshire Cat all in the middle of New York, away from the bustle of Fifth Avenue and Columbus Circle. I had not known of its existence until last week.

Outside Central Park, New York is an easy city to walk around. Being early for a meeting and having decided to walk downtown instead of taking a cab, I found myself having a cup of coffee in the 19th century splendour of Grand Central Station. It is in fact called GCT or Grand Central Terminal but everyone I know calls it Grand Central (Station). The largest station in the world based on its 44 platforms, its architecture rivals St Pancras in its idiosyncrasy but its layout, with the numerous food outlets and seating areas for all, makes travelling through Grand Central a more pleasant experience than in 99.9% of the establishments overseen ( I will not say run) by Network Rail. Where in this country can you wait for your train in the warm with a choice of foods from almost anywhere in the world from Vietnamese moc (meatball) and nuong xien (grilled meat on a skewer) to East Coast clam chowder via burgers and chips to oysters, all with ample seating available to all regardless of where you bought the food? Not even in the revamped St Pancras I venture to suggest!

The hot topics at this year’s Legal Tech had a faintly familiar ring to them. Last year it was clear that predictive coding was the coming technology and this year it duly arrived. It was a mainstream activity not only in that there were so many sessions covering aspects of the technology or where reference to it was made but also because speakers competed to differentiate themselves by using other words to describe the technology. I have never been a fan of the description “predictive coding.” From the perspective of a litigation lawyer, it smacks of something I might not understand, something almost astrological where machine competes with man to predict the future. There was even a session entitled “Man vs Machine”!

I prefer Technology Assisted Review or TAR because what you see/hear is what you get. It is easy to understand the concept when so described and having been involved in a number of such projects over the past six months, we have a good understanding of what the process can achieve. It is not a panacea because it only deals with text and not, for example, columns of figures, and it does not always produce a stunningly good result. However, it often makes the process of reducing the number of documents easier and where this is demonstrably quicker and cheaper than more traditional methods of review it is a process which needs to be considered. That, of course, is what the CPR encourages litigators to do: at the very least consider the use of technology to further the overriding objective of dealing with cases justly which, in turn, may mean more quickly and cost effectively.

Other hot topics were Cloud Infrastructure and methods of collecting data from social media sites such as Facebook, Twitter and the like.

I predict that we will hear more on all three topics as the year unfolds, but back at Grand Central after my meeting (honestly, it was the quickest and warmest route from that part of Park Avenue which lies south of the Met Life Building to my next destination near Times Square), I had to laugh when I heard the sonorous announcement, “Don’t fall for it!”

I thought to myself, I wonder what that is about as it was repeated. All was soon revealed as it became clear that this was the US version of our own “Mind the Gap” announcement at various London Tube stations. The full version is “Don’t fall for it (repeated)! Mind the gap between the train and the platform.”

I thought it was a rather clever announcement! And then I thought there is a resonance here with the process of collection of documents whether at the outset of a case, as part of the disclosure process or at any other time in the contentious process whether litigation, regulatory investigation or any other dispute resolution procedure.

Mind the Gap! A huge gap often exists between what is available as a corpus of documents and what can and should be collected and whether the data needs to be collected forensically or not. Many are the times I have heard lawyers and their clients blandly assume that there must be a forensic collection when there is no need, or that only particular documents need be collected (how do you know?) or that it is just not appropriate or proportionate to cast the net widely, when often technology options exist which may fundamentally challenge that view, if operated correctly.

One of the simplest and best pieces of advice I was ever given was to listen to what my client was saying rather than assuming that the client expected that the lawyer would always know the answer and had an obligation to talk at the client about it. Potential misunderstandings lie that way and possibly the adoption of a wrong or misguided strategy.

Listening to your client is important. I suggest that when it comes to document collection and review, “Mind The Gap” and/or “Don’t Fall For It” should be added to the lawyers’ lexicon.

Photo credit: Mad Hatter – detail from Alice in Wonderland Monument, Central Park NY – Frank Kovalchek