California calling

By | 20th August 2013

I confess that I had forgotten that there was a draft report on my trip to Southern California this spring lying unpublished in what passes for my junk drawer for this blog. Publication of the latest edition of the Commentary published by the Litigation Counsel of America (LCA) has stirred me into action.

You can read my review of the recent Spring Conference and Induction of Fellows held at Pelican Hill, Newport Beach between May 1st-3rd 2013 here, or you can read what follows.

By way of background, I have now been to two LCA conferences on the East Coast (in Boston and Palm Beach) and two in sunny California, at Santa Barbara and most recently Newport Beach. Apart from my first conference in Boston, Millnet has been a corporate diversity partner /sponsor of the LCA.

Baker Donelson partner, Carol Owen from Nashville, Tennessee, originally introduced me to the LCA in 2011. From the outset, the LCA Fellows have been universally welcoming to me and subsequently to my colleague Naj Bueno also.

Whether speaking on the subject of predictive coding or more generally on the new dawn in the age of e-discovery, Naj and I have been delighted by the positive reception from all those whom we have met. Despite extending over three days, it is almost impossible for the two of us to get round to speak to everyone and so, inevitably, there will be people with whom we have not exchanged a word, despite our best endeavours to cover the ground. Apologies for that and we will try to do better in the fall at The Greenbrier. now only a matter if weeks away! LCA Fellows can play their part too, by approaching us and saying hello. I am sure they will continue to do so.

If there is one thing the LCA knows how to do well, it is to choose a suitable venue for the conferences. I know we should be serious and call for conferences in dusty city venues where the business of learning about and discussing issues relating to the law and practice of litigation and trial lawyering could take place without the distractions of fabulous views, luscious gardens, great food and all the rest which goes to make up a conference for LCA Fellows, but what would be the point in that?

There is an old English saying that “ All work and no play makes Jack a dull boy!” I suspect you can substitute any number of names for Jack (or Jill) and you will find a Fellow from the LCA!

If support is needed for that view, the very worst partner conference I ever attended was held in the middle of a dreary city in the Midlands. Various matters made matters even worse: the hotel was not very nice, the food was execrable and if you ventured outside the front door, you found that the hotel was to all intents and purposes  in the middle of a roundabout. Not surprisingly, the conference did not go very well, the content was unmemorable and no one wanted to go there again. Let’s face it, you get more out of people if you make them happy and comfortable to begin with.

As I hope to show. there is always something for everyone at LCA conferences.

In May this year we started with a discussion about jury research. We may have few jury trials in the UK these days but this was a fascinating talk and it is always interesting to see how the strengths of our respective legal sytems are leavened by the differences between them.

This was followed by the Big Smell. This is in no way a reflection on the two excellent presenters, Bill Wegner and Matt Hoffman (both of Gibson Dunn), who regaled us for an hour on the tortious nuisance case of the smell that never was. To prove a negative is always a challenge and this was a case where the two of them clearly succeeded in doing just that on behalf of their client.

We considered current trends in ADR and successful inhouse/outside partnerships in “bet the company” litigation and were entertained by Ross Fishman’s ethics slots (parts one and two), with the excellent gala dinner and induction of Fellows in between.

Then it was back to practical concerns with a session on malpractice pitfalls, followed by a thought provoking session on themes that connect with a juror’s sense of fairness.

The Cinderella slot was occupied by Millnet with guest speaker Michael Ehrenstein from Miami, Florida. I say “Cinderella” because the last session of a conference, just before lunch on a Friday, with the California sun streaming down and the swimming pool and other weekend delights awaiting, is not necessarily the slot you would choose for a presentation. Nonetheless, by my count, at least 100 delegates remained faithfully to the end and were sufficiently interested in the subject matter to ask pertinent questions during the presentation discussion and to follow up afterwards.

For those who were unable to remain and/or who need a reminder, this was a session which very much followed on from last year’s topic which centred on predictive coding (a sea change in e-discovery) and sought to broaden the topic to the wide world of e-discovery generally, described as the new dawn.

A few points to take away:

  1. It may be trite to say so, but e-discovery has arrived. Dawn has broken and the day is beginning to warm up. Things are definitely stirring in the e-discovery jungle and the time has arrived to get up to speed with developments in this area.
  2. A good place to start is to look at what is going on in the courts in Manhattan where the charge is being led by the likes of Judges Peck and Sheindlin. Cases are starting to appear in the reports from other states too and it is essential that litigators remain up to speed with what is going on.
  3. Building on what other speakers said, it is important to consider partnerships with outside vendors, not least because they see a much wider range of situations than any law firm possibly can. Most lawyers see their cases from the point of view of their clients and what their opponents are doing whereas a provider like Millnet sees issues arise and can assist with the emergence of  best practice as a result of dealing with hundreds of law firms over a year.
  4. When litigation arises, it is never going to be the right time to look for outside help. The matter is too pressing and there just is no time to sort out the millions of hits as a result of searching the term “e-discovery” on Google. Even if time were available, where would you go and how do you know you will get what you want when you get there? The message must be to have one or two outside firms on your speed dial so that they are there when you want them. Check them out beforehand; talk to the people concerned; talk to others who have experienced working with them or even against them. You will be glad you did that next time there is a real and pressing need. Whatever you do, do not wait until the injunction is served!
  5. Stay connected. As a practical example of what I mean, Millnet is now closely involved in the development of one of the LCA groups, the Complex Commercial Litigation Institute (CCLI). The CCLI already has its own website at and provides an opportunity for members to post articles of interest, news items, cases etc on the CCLI Blog at  

To quote from its website, the mission of the CCLI is

 “to provide a forum to (i) share and develop best practices in litigating and trying complex commercial cases; (ii) share specialized expertise; (iii) provide a nationwide resource for local procedural and substantive knowledge; and (iv) engage in the education of complex litigation practitioners through speaking engagements and publications.”

To my mind that is what comunication and connection is all about.

All in all, a successful and valuable conference in the California sun!

Which brings me, inevitably, to the Beach Boys. There are literally hundreds of songs which evoke the spirit of California and the Beach Boys recorded many of them, including “California Calling.” 

California Calling? Well, it has a ring to it, although I will be happy wherever the call comes from!

For those of you who cannot remember the lyrics:

“If everybody in the U.S.A
Could come with us to Californ-i-a
We could take ’em to a place out west
Where the good sun shines everyday

Now there’s a touch o’ Californ-i-a
In everyone who’s ever been this way
And when your telephone begins to ring
And the operator comes on the line

California callin’
I’ll be there right away
There’s some beautiful women
Gonna find me one
To show me how to ride the ultimate wave

Now I’ve joined the surfin’ nation and so
I’ll take a permanent vacation and go
To the golden shores of ‘Frisco Bay
I’ll ride ’em all the way to Malibu

And I’ll take ya’ boogie boardin’ with me
‘Cause when we’re surfin’ it’s so great to be free
And when you’re on a California beach
You might even find ’em windsurfin’ too…”