Predicting litigation responsibility for 2008

The big changes in litigation for 2008 both concern responsibility – the authority and knowledge of the person who gives the Disclosure Statement and the direct responsibility at boardroom level for the time and cost of heavy litigation. Both represent risks for corporate clients and opportunity for lawyers and for technology suppliers.

My 2008 predictions have already appeared on the Computers & Law web site. One of them is obviously a joke – no-one seriously expects the Government to honour its commitment to invest in the civil courts at the level warranted by their importance to a civilised society, and to the international business which they generate. We don’t expect New Labour to honour any of its other promises or obligations, so why pick on this one?

The others are no-brainers – judges will start making strict e-Disclosure orders, law firms will recruit home workers for e-Disclosure, and corporate clients will add e-Disclosure expertise to the list of skills they expect from litigation teams.

There is another one which I did not include because someone had already covered it. That is the extent to which corporates will start to inform themselves at the junction where technology, the evidence and the courts’ requirements meet, by recruiting legal technology consultants skilled in this area. The head-hunters are already circling in the hunt for people with these skills.

Let’s spell out why this is going to be important in 2008. It is not just because the corporates want to take the preparatory stages of e-Disclosure in-house – that is happening, and it is happening partly because there are not many law firms who have the capability themselves, and partly because applying skilled lawyers to massive specialist tasks is never cheap.

The more important reason is more subtle than that and is to do with responsibility at two levels. My source in each case comes from the Commercial Court, but will quickly filter down to other courts.

The first level is the Disclosure Statement, that part of the list of documents by which a party sets out what searches have been made for electronic data and, more critically, what has not been searched and why. This requires a mixed legal and technical qualification. The Commercial Court Guide emphasises that the giver of the Disclosure Statement may be scrutinised and rejected if the court is not satisfied that he or she has the necessary knowledge and experience. Corporate litigants do not like that kind of egg on their faces and will want advice as to how to avoid it.

The second level goes right up to the boardroom and goes more widely than disclosure. The Commercial Court Long Trial Recommendations (on which I have already written) includes a section, starting from paragraph 160, on Client Accountability and Responsibility for Litigation. The key introductory passage reads as follows:

However, because it is senior management that is ultimately responsible to shareholders or others for the time and cost spent on litigation, it is important that responsibility for the management of heavy and complex litigation is kept with senior management where it belongs.

I believe that this is going to prove the courts’ main weapon in tackling the costs and delay of litigation, and not just in the Commercial Court nor only for long trials. At present, senior management has one or two layers of padding between it and direct accountability for litigation – the external lawyers and, in bigger companies, the in-house legal department. The Commercial Court recommendations aim to strip that protection away, and emphasise

the judge’s power to require senior representatives to be present in court, by video link if necessary, if the judge considers it will assist in case management or resolution of the dispute.

I am not expressing approval or disapproval of this apparently draconian power, just reporting what I read. I call it draconian because of the implication as to the orders which might be made if the court is not happy with the answers. I would not choose to be the solicitor for the company whose MD has just been found wanting in his explanations as to the scale and cost (both specifically referred to in the Recommendations) of the litigation.

This represents opportunity, not just for a small band of legal technology consultants, but to lawyers and to suppliers. The Commercial Court Recommendations do not aim to stifle litigation – there is at least one express reference to the need to avoid deterring foreign clients from litigating in London. The aim is to see litigation efficiently run, and if there are costs involved in achieving that, they are small compared with the costs of litigation which is inefficiently run. The opening for solicitors lies in claiming the efficiency ground as their own and selling their expertise in achieving it. The opportunity for suppliers of relevant products and services is obvious.

If you would like to discuss any of the points made in this article, please do not hesitate to contact me.

About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Court Rules, Courts, Discovery, eDisclosure, eDiscovery, Litigation Support. Bookmark the permalink.

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