Spare the rod

By | 11th September 2012

I have been reflecting recently on why litigants might choose a particular court to hear a dispute. Leaving aside any rule which determines where a dispute must be heard, if litigants had a free choice in the matter, they would choose a court which was conveniently located, where the in court facilities were sufficient, and where the judiciary was known to have the relevant experience and expertise and operated a speedy and efficient court.

A recent example is the decision of the claimants in the first LIBOR fixing case to commence proceedings in the Mercantile Court in Birmingham before His Honour Judge Simon Brown QC. [see Friends, Romans, countrymen.. Smart e-Discovery, 7th August, 2012]

Proceedings might well have been started in a number of other courts but the claimants clearly decided that the court with the closest connection with the facts or witnesses was Birmingham which is also renowned for the way in which the local judiciary conducts cases, as a result of the recent pilot project championed by Simon Brown.

This is all going to become more important as we move towards Big Bang and the new case and costs management rules to be introduced in April next year.

In the course of writing this blog and seeking to ensure, as far as possible, that the content is of interest to its readers and sufficiently novel to retain that interest, I read quite widely. A lawyer acquaintance of mine once remarked rather waspishly that the blogs were all very well but he could not understand when I had time for the day job. The answer is, of course, that writing the blog for Millnet is part of the day job!

What is inescapable is that the various common law jurisdictions have all come at the problems caused by the explosion of electronic data over the past ten to fifteen years from slightly different perspectives and they have, therefore, come up with slightly different rules. But, I sense that the jurisdictions are all heading in the same direction and that they will end up at the same point even if their route to that point is different in each case.

The largest common law jurisdiction is the United States and it is no surprise that much of the content of this and similar blogs on the subject comes from anecdotes and real life experience of litigants, courts and judges in America.

I have written approvingly (with respect, and I mean that!) before about Judge David Waxse whose articles and comments on the conduct of litigation are always well thought out and are sprinkled with real life examples from his long experience of warring parties squabbling over e-discovery.

The last time I wrote about Judge Waxse was several months ago in a piece I called “Cooperation does not mean collaboration”  [Smart e-Discovery, 17th May, 2012] which, when I re-read it the other day, I found educational and at the same time amusing (the comments by Judge Waxse, I mean, and not my own offering!)

It is with delight, therefore, that I have come across a much longer article about the views of Judge Waxse by Ralph Losey entitled “Judge Waxse on cooperation and lawyers who act like spoiled children”)

If I may be so bold as to summarise Ralph’s article (and the judge’s comments) so shortly, he says that by reading Judge Waxse’s comments you will become a better lawyer. In urging you, even enticing you, to read further, he says:

“This blog will summarize the article with the intent of enticing you to read the whole thing. You will also want to cite to this article in your legal practice, especially when dealing with lawyers who still play the old game of fight everything. The article offers practical rule based advice on how to deal with lawyers like this. Professor Gensler, whom Judge Waxse cites with approval, compares such lawyers to spoiled children. Steven S. Gensler, Judicial Case Management: Caught in the Crossfire, 60 Duke L.J. 669, 734-37 (2010). This problem of petulant children in the law is very real, as I well know. If you are dealing with such counsel in any of your cases, I highly recommend that you read and use Judge Waxse’s fine article.”

What is to be done with petulant children or recalcitrant or unreconstructed lawyers? The old adage had it that to spare the rod was to spoil the child. Contrary to popular belief, the phrase does not come directly from the Bible. The 1611, King James Version of the Bible, Book of Proverbs, 13:24 says:

“He that spareth his rod hateth his son: but he that loveth him chasteneth him betimes”

which has been interpreted as “spare the rod and spoil the child.” Far be it from me to suggest that lawyers who misbehave should be sentenced to public birching, but cooperation in litigation is the right way to proceed and the more judges who feel that it is their job to intervene where the parties persist in behaving like spoiled children, the happier their clients will be. I am sure this advice from America is about to be followed here in England at the latest starting next April but in practice it is happening now as anyone who litigates in the Mercantile Court in Birmingham will tell you.

Please read this excellent article. It may take several minutes but it will surely be worth it.

Illustration: Seal of Louth Grammar School 1552