I went to Birmingham last week with LexisNexis to show a judge what CaseMap can do. Why is it important for judges to see solutions like this, and what is CaseMap’s role in handling the issues in litigation?
Part of the aim of the E-Disclosure Information Project, of which this blog is a part, is to introduce to each other as many as possible of the people, things and concepts which have some role in the disclosure aspects of case management.
Some of these matchings are more obvious than others. I work with lawyers to look at how the CPR can work for them. I introduce people who have a problem to solve to providers who might have the answer. I pick up ideas from one discussion, one web site or one jurisdiction, and drop them into another. This much is a fairly obvious use of resources, information, contacts and knowledge, and seems to be appreciated.
Less obvious is the introduction of technology solutions to judges. Judges can neither buy nor recommend solutions, so it might seem on the face of it a waste of time on everyone’s part for suppliers and judges to spend time together. I disagree.
A judge has a wide discretion as to the orders made as to the scope of disclosure. If disclosure is wider than necessary, then the parties are put to wasted expense, and court time is used up without purpose. If the scope of disclosure is too narrow, then injustice may result because key documents are not seen by the parties or by the court. The orders made must lie between these extremes and, above all, be proportionate.
“Proportionate” implies a balance between the evidential or other value of some input and the cost of getting at it. The duties of a party at a Case Management Conference include giving the judge the information necessary to strike that balance, including estimates of the costs which will be incurred by one route and by another.
Increasingly, the courts are seeking to narrow the range of material which is put into the ring, and specifically which is put before the court. The best way to do that is to force a focus on the issues which really matter, on the facts which bear on those issues and on the documents which support (or which undermine) each party’s assertions as to the facts. That is the approach of the Commercial Court Recommendations (which use the word “surgical” to describe the proper approach to disclosure) and that is the approach taken by HHJ Simon Brown QC both in his court in Birmingham and in his public speeches.
It is hard for judges to decide on a proportionate approach to electronic disclosure without some idea of the technology which exists. It is all very well saying that it is the duty of the parties to tell him, but few firms of lawyers are equipped to do so. They have not been made – by their clients, by the courts or by the perceived economics – to look for more efficient ways of handling electronic disclosure (I stress the word “perceived” incidentally – it is economic nonsense to give electronic disclosure by any means other than electronically, but I won’t deviate here to go into that).
CaseMap is a low-cost product whose key component is facts – dates, people, documents and so on – and which allows the user to relate those facts to issues. It is not intended as a repository for very large document populations, but is designed to allow close analysis of the core components of a case. Its key functions map exactly to the courts’ focus described above on issues, the facts to support the issues and on the “surgical” approach to document handling. I thought it would be interesting to introduce the leading (and most affordable) tool for this to one of the leading judicial exponents of a narrow focus on the issues.
We were fortunate that Bob Wiss, a co-founder of CaseSoft, was in the country, and I went with him and Matt Grant of LexisNexis (which owns CaseMap and is amongst the sponsors of the E-Disclosure Information Project) to show Judge Brown how it could be used for this. The purpose of the introduction was NOT to suggest a way to manage cases in any administrative sense or to be a substitute for the existing systems for filing pleadings etc and maintaining a court file – that will come as part of an HMCS initiative which is gaining momentum as a separate matter. The narrow purpose was to show a judge how a software tool could be used to focus on issues in the manner required by the rules.
Bob Wiss demonstrated this very simply. I will be writing more about how CaseMap does this and other things in due course. All I want to convey here is that such tools exist and that judges are becoming more aware of them, not to buy or recommend them, but to be in a position to counter arguments from parties that a surgical, issue-based approach to litigation is beyond the pockets and beyond the understanding of ordinary firms with routine cases.
The upshot will probably be a pilot in which regular court users will be invited to take part – a good example of the co-operation which the rules specifically require of parties both narrowly in respect of disclosure and more widely in terms of the overriding objective.
Although CaseMap is not specifically designed as a document management tool, it actually serves that purpose very well for smaller cases, in parallel with its role for issue-analysis in large ones. Whilst bigger cases certainly need heavy-duty litigation support software, smaller ones do not, and CaseMap can handle very well the mechanics of filtering, issue-coding and exchanging documents. Again, I will write about this separately but, as with the point about allocating issues, the important thing is for judges to know that such things exist.