Take the best and discard the worst from US litigation

The Vikings brought with them some habits which were deplored by their hosts, but they also brought technology which we turned to our advantage. We do not much like some of the practices in US civil courts, but we can certainly use the technology which has been honed in them

On 8 June 793, the first Viking long-ships appeared off the coast of Britain – “ravages of heathen men” said the Anglo Saxon Chronicle, which had recently predicted some such cataclysm. The Vikings did a bit of raping and pillaging and pushed off home. The next year they were back, but were beaten off, retiring hurt with their leader dead, many drowned in a storm and others killed on landing.

Their technology, particularly in ship-building, was way ahead of its time, and improved rapidly to reflect the experience of the sailors and as an aid to the rough and tumble of their work. Not only were the ships able to face the roughest storms, but they had shallow draughts and were light enough to carry, both useful developments which were enhanced to cope with their raids. Nor were their victims an uncivilised and impoverished race – the visitors would hardly have bothered to keep coming back if they had not hoped to profit from it and, however attractive the ladies of the North-East, their charms hardly warranted a risky annual journey.

Some of the misunderstandings between the visitors and the locals could be put down to a vocabulary which sounded superficially familiar but which actually caused confusion. Other cultural differences may have led to the allegations of unseemly conduct by the visitors – then as now, a Newcastle lady standing outside a drinking house dressed in very little and saying she wanted a good time did not necessarily intend to imply an invitation to anything more than a fun party, but the scope for confusion on the part of the visitors is obvious.

The visits became a more or less annual event, each trip a reconnaissance for the next, until the Vikings began to stay and to intermingle with the locals.

We are seeing a new wave of US litigation support companies invading Britain. Others of their kind have been before and whilst none actually drowned or were killed, some retired hurt, mainly due to inadequate reconnaissance. Some of the early wave misunderstood the warmth of the welcome they received, and found that an invitation from a lawyer to “come up and see me sometime” did not necessarily lead to commercial relations.

I have been talking to a few of them recently, both those who have settled here already and those planning to do so. Like the Vikings, they bring some sophisticated technology solutions which improve year by year, as well as a vocabulary which, whilst more or less recognisable as English, contains pitfalls and ambiguities. This wave appreciates better than their predecessors that there is more to the linguistic and cultural differences than remembering not to say “attorney” or “discovery”.

The people I have been seeing have done their homework and are well aware that this is a very much smaller market than the one back home. This is not just because there are fewer of us. The British are less enthusiastic about litigation and we seem to create fewer documents per head, particularly e-mail.

There are terminological differences. Spoliation, early case assessment, defensibility, sanctions, meet and confer all have meaning to a greater or lesser extent in the UK, but only in a standard dictionary sense. In the US they are terms of art with precise meanings, and they drive a lot of the functions and processes behind the software and services which are on offer. These functions and processes are useful, essential even, in the UK, but the labels mean relatively little, and the unchanged import of US marketing materials can imply the answer to the question no-one asked.

American culture secretly admires a persistent salesman – he wants to get on, he is doing his best for his company, he wants to close the deal. All that closes here is the door if too much enthusiasm is shown. UK lawyers are fairly unforgiving of minor lapses – calling their firm a “company” or their court a “courthouse” is a turn-off. “Vendors” sell ice cream here, not professional services.

All that is before you look at the Civil Procedure Rules. If you compare the CPR side-by-side with the Federal Rules of Civil Procedure, the apparent similarities are greater than the differences. You would take it for granted that the word “relevant” is a cornerstone of the definition of a disclosable document, but you would search in vain for it in the CPR definition. “Proportionate” is another word which, on examination, has different meanings in practice which do not appear from the text of the rules. It does not help much that many UK lawyers are similarly hazy about such things – or, indeed, that much of the haziness in our rules is entirely deliberate, and rightly so.

“What is the case law on that?” ask Americans, desperate to find something concrete to hang on to. We do not have any, we reply, adding that we do not even report most of the procedural decisions.

All the companies I have been speaking to are aware of these differences or, at least, are aware that there are differences. Clearwell, Stratify and KCura are amongst the suppliers with good products and growing customer bases in the US who are doing their homework. First Advantage did theirs before they came here a couple of years ago and came with sufficient work in hand to give themselves a long run-up to the local e-discovery market as well as a bought-in local presence. Attenex has been here for a long time, with big local support from the likes of Ernst & Young and KPMG, but the Attenex people I had lunch with were from product development and project management, not just marketing, and what they learn about how the software is to be used in this very different context is likely to inform development plans.

Like the Vikings, they are making more than one visit, and feeling their way, meeting with anyone thought to have a view which may inform their decision-making. What is in it for us, you might ask, for the litigation support managers, the consultants, and me, who are happy to meet these emissaries from afar? What does it mean to you, the putative end-user?

One benefit is that the US is the proving-ground for applications which we need here. A product which has withstood the fire of the constant challenges which US litigation, crime cases and regulatory investigations impose can be turned to our purposes. This year’s developments in US civil cases with their emphasis on the quality of search processes and the discipline which goes with it are bringing forward techniques which will adapt very well to the no less onerous task of picking out the documents which really matter by the narrower UK (and Australian) tests as to what is disclosable, and to the proportionality which defines that.

In a sense, we do not need more entrants into the UK market. We have an existing body of first-rate applications, most of them no less American and subject to the same testing ground as the newcomers here. That great God, “competition” can seem fairly illusory to would-be buyers of applications and services who can already choose between the companies whose logos you see here and the others already in the UK.

I do not think new arrivals will necessarily drive costs down – it is my view anyway that the expense of using applications like this is proportionate to what has to be achieved, given that the only alternative is rooms-full of expensive lawyers reviewing the material by eye. Their technology and their processes may be different in some respects, but not greatly so. It may be that some of the newcomers will find new and more interesting ways of describing what they do and why their services are a benefit. If so, that will benefit everyone.

What is really interesting, being even-handed between those who are here already and those who may come here, is that this wave of invaders offering litigation services coincides with the anticipated upturn in litigation which recession always brings – and, as I have said elsewhere, it takes recession, and not just hard times, for that to happen.

You can, if you like, stigmatise that interest by thinking of fat-cat litigation lawyers and their suppliers rubbing their hands at the profits to be made from the tribulations of others. That is not how I see it. Economic cycles are a fact of life – this is the third recession in my working life. Just as war, which most agree to have serious downsides, is the mother of invention, so recession is the parent to new business models and practices which stand commerce in good stead when the good times come again. The litigation work and regulatory investigations which will come from this debacle and its causes will be hotly fought for by litigation firms. It will impose stresses on a court system which has been neglected by Government for over a decade, and will flush out the weaknesses – and perhaps uncover hidden strengths – in the Civil Procedure Rules which have been in place over the same period.

The result must be a search by practitioners to find surer ways of winning litigation work and by judges to find better ways of managing it. Handling electronic documents electronically seems a no-brainer from both perspectives. Whether there will be enough work to support all the suppliers remains to be seen – that will turn on their success, jointly and separately, at riding the wave of new work of all sizes and doing so profitably.

The vigourous Vikings turned up everywhere, eventually settling down and becoming integrated, not just in England but in Normandy and Sicily, in much the same way as US influence is all-pervasive today. After a while, the people of Newcastle-upon-Tyne discarded rape and pillage as lifestyle options and, strengthened by the innovation and technology which the Vikings brought, became the ship-building centre of the world. The Nordic lands, meanwhile, became best known for the Swedish Chef from the Muppets and for ABBA.

A better fate, I am sure, awaits America. The economic world, however, is turned upside down just now and there will be winners and losers from the shake-up. There is much about US civil procedure which we can reject, just as our forebears turned their backs on the rape and pillage which it sometimes appears to resemble. We can, however, hang on to the technology and couple it with our procedural rules. It seems unlikely that Britain will again be a centre of excellence in ship-building, but we could become once more the forum of choice for litigation.

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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 Attenex, Case Management, Clearwell, Court Rules, Courts, CPR, Discovery, E-Discovery Suppliers, eDisclosure, eDiscovery, Ernst & Young, FRCP, KCura, KPMG, Legal Technology, Litigation, Litigation Support, Part 31 CPR. Bookmark the permalink.

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