Cure for the common scold

By | 27th March 2012

There is a sign on Fye Bridge in Norwich which claims to be the site of a “cucking stool.”

Norfolk is now my home, not least because I have lived there for longer than anywhere else. I used to practise in Norwich which is full of odd little nooks and crannies revealing its illustrious past as the second city of the kingdom in the Middle Ages, after London.

Cucking stools or more obviously ducking stools were used to punish common scolds.

Apparently, only women could be guilty of the offence, which in broad terms, consisted of being a public nuisance through such activities as habitual quarrelling with neighbours. The Latin tag, communis rixatrix, confirms that only females could be scolds: think testatrix or executrix!

The offence was punishable by ducking or being placed in a chair and submerged in water for however many times the sentence decreed.

Apart from being unpleasant, as I assume it was intended to be, it was not one of those punishments where you were damned if you did and damned if you didn’t. I mean by that, it was not like ordeal by fire or water where the innocent were consumed or drowned and the guilty survived, doubtless to be disposed of in some other unspeakable way. This was a punishment which was intended to shock and ridicule but not much more.

Some time ago, there was a tendency in the world in which I now operate to set out to shock and awe lawyers with tales of an apocalyptic future if they did not do such and such or adopt a particular strategy. All of these things may indeed come to pass, but I think that time has moved on and lawyers are unlikely to be frightened by tales of tsunamis of electronic documents or miles of lever arch files. After all, many of the anticipated horrors never materialised and we all know what happened to the boy who cried wolf!

Fortunately, the attitude has now changed to one of education and engagement with the lawyers who, whether they like it or not, are now regularly faced with difficult and important strategic decisions when it comes to managing their clients’ documents. It has always been the province of the lawyer to seek to understand the case the client wishes to make or has to meet by reference to the evidence which is available or which can be discovered. As many will have realised, now there is often an additional problem in that the evidence is not always as accessible as a paper file in a drawer, cabinet or warehouse, while at the same time the evidence may be in any one or more of a variety of different places. Let’s face it we are surrounded by electronic information or metadata wherever we look. Think of a photocopier which records the number of clicks or the sheets printed or the user pressing the button. Think of key fobs allowing entry to premises by individuals. Think of your Oyster card (if you are in London).

I am increasingly finding that lawyers do not want to hear tales of potential disasters although when one of their own has made a mistake, they are just as human as anyone else in enjoying the moment when a competitor is held up to the world as having got it wrong! (Incidentally, I have always been fascinated by the idea of schadenfreude and marvel at why only the Germans have a word for it).

Let’s be honest, it is all too easy to get things wrong these days and what lawyers want is information, education and an understanding of how they can best adapt what they do to changing circumstances while remaining in charge of the process and delivering a good job to their clients at a reasonable and proper price which is good for the client and maintains a reasonable profit for the law firm.

I believe that is why we are seeing more and more groups of lawyers who want to engage in the process of understanding how the technology for handling electronic evidence can help them do their job well for their client and stay the right side of the court and the judges who are gradually flexing their muscles and starting to manage cases which come before them.

Recently, we have seen a marked increase in lawyers wanting to learn. This has resulted in a number of well attended and focussed meetings with lawyers interested to understand how the technology can help them in their particular area. What I have enjoyed is talking to the smaller groups (up to say 20 people) who want to know not so much about the technology itself but who are eager for us to share knowledge and best practice as it relates to their particular discipline. That is not to say that there is no place for gatherings of larger numbers, indeed there was a successful instance of such a group of over 70 lawyers quite recently, but the risk is that an audience of that size is too disparate in knowledge and experience which may result in some of the audience getting less out of the event than they otherwise might.

I am keen that we offer to share our knowledge and experience wherever it is required but intend to concentrate in the near future on the slightly smaller groups from whom one almost always has better feedback and more engagement.

When I was last on Fye Bridge and noticed the site of the “cucking” stool, I had no idea that the offence of being a scold had been taken to America. However, I now have confirmation (other than Wikipedia) from the website of Monica Bay, Editor in Chief of ALM’s Law Technology News magazine. I am on the mailing list.

I was gratified to learn that Monica also writes a blog called “The Common Scold” and writes:

“The Common Scold is named after a cause of action that originated in Pilgrim days, when meddlesome, argumentative, opinionated women who displeased the Puritan elders were punished by a brisk dunk in the local pond. Believe it or not, the tort lasted until 1972, when State v. Palendrano, 120 N.J. Super. 336, 293 A.2d 747 (N.J.Super.L., Jul 13, 1972) pretty much put it to rest. But the thought of those feisty women, not afraid of a little cold water, has always cheered me up and inspired me. I first used the moniker as the name of my humor column at the University of San Francisco School of Law many moons ago, and revive it now for this blawg!”

It does not go down well with audiences who perceive a speaker or presenter to be meddlesome, argumentative and opinionated. It must, therefore, make sense not to display these characteristics when speaking or presenting to litigation lawyers so that we can both gain from the experience.

After all, no one would want to be regarded as a common (if male) scold!