The main character in the film The Butterfly Effect explores every possible event in his search for the right answer, only identifying the correct turning point at the end of the last reel, after much unnecessary tribulation. The aim of close court management of litigation is to find the turning point much earlier.
In his speech to an e-disclosure conference last week, His Honour Judge Simon Brown QC emphasised that the judge’s role is to find the facts. His context was the selection of the documents which proved the facts, and the desirability of identifying the key issues – and thence the key documents – as early as possible so as to reach the right conclusion with the minimum of time and expense.
Looking in retrospect, even the most partisan of parties can usually see how a court reached the factual conclusion that it did reach. I don’t mean they necessarily agree with the weight given to any one fact, still less that they accept the judge’s application of the law to those facts, but by the time the witnesses have performed (or not) and the spotlight has focused on a handful of documents to the exclusion of the rest, a set of key facts – or perhaps just one – is seen as the turning point.
And everybody, but particularly the loser, wishes that the significance of that fact, now so obviously the turning point, had been seen as such very much earlier. Everybody could have been saved a great deal of time, trouble and expense if they had spotted earlier what they now see as the nub of the thing.
I thought of this whilst watching The Butterfly Effect last night. Evan Treborn (Event Reborn, geddit?), dissatisfied with the outcome of his life, is able to return to key events in his childhood and alter their direction. As he goes back and back through these events, very different outcomes ensue, each worse than the last, and none of them leading to perpetual bliss with his childhood sweetheart (played by Amy Smart – well worth a certain amount of trouble, but not, in retrospect, this much).
Eventually (plot spoiler coming up) he goes right back to the moment he met her at a childrens’ party and, instead of kissing her, is horrible to her. All the miserable alternate outcomes he has suffered followed from his connection with her and all the trauma of the later events and their various outcomes is wiped out once he correctly identifies the critical turning point and writes her out of his life.
Quite often, parties look back at litigation and think that, like the girl in the film, it may have been worth a certain amount of trouble but, not, in retrospect, this much. How can you most quickly identify the critical turning points in advance? The Butterfly Effect would have been a short, sharp film if Evan had spotted the real turning point on his first pass. What is not desirable for film-makers is an attractive idea for commercial parties who want to resolve a dispute in a short, sharp way and move on.
I am not, of course, suggesting that you alter the facts – that, as Qualcomm’s lawyers are finding, is the route to huge costs penalties and a report to your professional body. The important thing is identifying the ones that matter as early as possible.
How trite, you say, of course that is what we try and do anyway. Judge Brown was not, however, merely stating the obvious in saying that one must identify the issues early and focus only on the sources which support or have an adverse impact on those issues. Nor was he just giving some helpful advice.
What he was saying is that this is how litigation is going to be run from now on. You will not be permitted to range over the whole terrain or, rather, you will not be allowed to inflict it on the other parties and the court. The scope of the documents to be disclosed and the range of sources which are to be collected will all be judged in the light of an early assessment of what matters to achieve the parties’ main objective justly.
This chimes precisely with the overall aim of the Commercial Court Long Trials Report and Recommendations with its emphasis on issues, on the need for a “surgical” approach to the disclosure needed to argue the issues, and on the need to involve the court in decisions about the scope of disclosure. This approach needs some technology and some informed faith in the technology, but it also requires a different approach to the problem.
The “informed faith” bit is important. If solicitors are to be persuaded to narrow the scope of the documents then they must be informed at two levels. One is as to the full extent of the potential sources and the balance between ease of retrieval and likely value. No-one is suggesting that you ignore or suppress sources (Qualcomm again), rather that you come to court equipped to show what is really needed out of them to get to the facts. The other is as to the tools available to help cut the volumes down – an understanding of that is critical to the solicitor’s own assessment as to the responsibility and the professional propriety implicit in a decision not to read every document.
Not every case warrants this. Not every case is susceptible to early narrowing of the scope – some really do need the minute dissection of every angle to arrive at what is just. Perhaps the fictional Evan Treborn had to pursue every avenue before correctly identifying the one which solved his problem, and not just for plot and narrative reasons. Doubtless he kicked himself at the end for not spotting at the outset what by then appeared obvious and for letting himself in for all that trouble on the way.
The point of the early analysis which Judge Brown and the Commercial Court are now imposing is not to bar minute analysis of every issue where that is needed. It is to help the parties see if there is an easier way – a quicker and cheaper way – of getting to what is right, and to do so before vast costs are incurred.