I said in an earlier article (Recruiting one’s strength for post-recession litigation support) that I would come back to the difficult subject of e- discovery certification. The context in which it came up was that of the individual skills of litigation support professionals, and that is what this article is about. It is worth observing, however, that the assessment of e-disclosure / e-disclosure ability comes up also in other settings, including:
- The competence of services providers to render the services which they advertise.
- The fitness of a lawyer or firm of lawyers to practice in litigation in a world dominated by electronic documents, and of judges to manage cases.
- Specific technical skills acquired by following a curriculum and taking an exam, such as those required to use Guidance Software’s EnCase products.
- Training in the use of a particular application.
Whilst some or all of these link into my subject, I mention them mainly to emphasise that they are not my primary concern here. I am concerned with the question whether individuals employed within a firm or company ought to follow a course of study leading to a piece of paper which demonstrates their aptitude. I will say straight off that I am dead against this, but the arguments to the contrary are not to be lightly dismissed in a single sentence.
I am aware that there are some politics surrounding this in the US, but my knowledge of them extends no further than knowing that the debate exists. If I tread on any toes, it is because they stand in the way of my principles, not because of any disagreement with specific participants in the debate. Quite apart from the arguments which I set out below as to the standing of any body or person to design and run courses and to award certificates, questions arise as to collateral use of the mailing lists which would result. The whole subject seems mired in controversy and I for one am content to let it stay there.
Notwithstanding the narrowness of my chosen subject, it is worth a short digression into the subject of lawyer competence and provider quality. There is little room for argument about the need for lawyer competence. An article in March by Joseph Howie in the US Legal Technology News summarises the duties of American lawyers, using as his springboard Judge Facciola’s keynote speech at LegalTech in February 2009. We have the same issues in the UK but they go largely undetected because neither the opposing parties nor the judge is in a position to challenge a law firm which fails to comply with its obligations. Instead, everyone just moans about the cost of litigation, and the clients do not come back. The solution in the UK, as in the US, lies in a combination of plugging away at the educational and informational efforts and in the occasional stand-out case like Digicel (St Lucia) v Cable & Wireless, a reading of which is an education in itself.
As to provider quality, Judge Facciola was asked about certification after his speech. I missed the precise terms of the question, but his answer implied that it concerned the quality of outside providers rather than of individuals within a firm or company. He said what I would have said — that the erection of some kind of quality badge immediately raised questions as to who would be the judge of fitness and award the badge. Such a scheme would, he said, tend to monopoly, with existing players able to raise the drawbridge behind them to keep out new ones.
Much the same applies to certification of individuals. Who would decide on the curriculum? Who would set the tests and decide whether an applicant had passed or failed? Given the range of cases and problems, how would one come up with a one-size-fits-all curriculum? These are specific points, peculiar to this industry, which the Ancients (Plato in this case as quoted by Juvenal) with their gift for neat précis, would say “Quis custodiet ipsos custodes?” or “who guards the guardians?”. (This, incidentally, is Plato’s second outing this month as an authority on e-discovery – Ralph Losey’s article Plato’s Cave: why most lawyers love paper and hate e-discovery and what this means to the future of legal education should be read by anyone interested in this aspect of lawyer competence).
My objection, however, springs from something wider than invidious points about the identity of the guardians of standards. As a class, they would be those who have been the founder-members of this new activity, the ones who transferred across from law, IT, or elsewhere to be the vanguard of a new army. They defined for themselves the skill-sets, the nomenclature and the roles, and would be the obvious candidates to set the standards for new entrants. What follows says nothing about anything I know or think about them personally, but derives from first principles and from observation of other professions and careers.
The most obvious parallel based on UK experience is nursing, which shares with litigation support that it is an activity ancillary, and vitally so, to a profession which demands the highest skills and qualifications. Until relatively recently, nursing was a career open to anyone willing to subject herself (and it was mainly women) to the disciplines of learning on the job. The formal academic requirements were low and the primary qualifications were dedication and the training hospital’s assessment as to character, willingness, interest and enthusiasm. It was decided, however, that nursing required a degree. A new and much harder entry path resulted, and many who might have become nurses found their way blocked. One immediate result was a shortage of applicants; another was that those with the new qualifications had a reasonable expectation of much higher pay. Few now aspire simply to be good nurses; they all want to be managers or to teach the new courses.
There are, of course, arguments in favour of this development: medicine is a much more technical subject than it used to be and people entering working life like to see a career path ahead of them. The primary question, however, is whether patient care has improved as a result. It has not. In saying this, I do not rely on the recent horrific stories of patient neglect by uncaring nurses whose conduct can properly be described as “wicked”. I point instead to the fact that we cannot recruit enough nurses, that if patient care is no worse, it is certainly no better, and that much of the curriculum appears aimed at padding out the degree course (and, by no coincidence, providing gainful occupation for the teachers) rather than at improving the lot of patients. The English nursing courses include some woolly wanderings called “reflections” where the trainees babble on with their quasi-mystical thoughts about the meaning of life; they could be feeding patients and emptying bed-pans.
In an article in yesterday’s Sunday Times Fallen Angels – the nightmare nurses protected by silence by Minette Marrin condemns the government-driven policy called Project 2000 which created this state of affairs (the article in fact refers to “Nursing 2000” but the context suggests that this is an error – Nursing 2000 is a recruitment agency). The paragraph which caught my eye as I was mulling on litigation support certification was this:
Another institutionalised error is the politically correct folly behind Project 2000, the so-called reform of nursing. In an attempt to give nurses professional status with a university degree, Project 2000 has all too often undermined their existing high standards of professionalism by taking students off the wards and belittling the status of old-fashioned bedside nursing care.
One of the issues here is that those who regulate an industry very soon become remote from it. The job becomes the preserve of dull little creatures with civil service minds, of the coats-on-at-5.00, I-haven’t-claimed-all-my-sick-leave, Box-41b-has-not-beeen-completed type, more concerned with trudging dumbly through the formalities than with moving the profession along. Sometimes you find good people, and wish they were using their talents by actually working in the industry; more often it is those who would fail in any industry and who settle for pen-pushing instead.
Don’t misunderstand me here. Many areas of life must be regulated, from financial services to surgery to law, and as to professional ethics as well as professional skills. Some have leaders who keep the foot-solders focused on what matters (I loved a recent story about the Chief Executive of the FSA asking each person at an internal meeting what they were there for and sending half them away). I just don’t think the litigation support industry needs or is ready for that layer of control. A firm or company which is recruiting ought to be able to make up its own mind about applicants on the strength of their references and manner. If they have not worked in the industry before, then what you are assessing is their potential and their enthusiasm. These are old-fashioned recruiting tools but far better than a piece of paper asserting that the person has reached somebody else’s standard. One of the arguments against the National Identity Card is the very fact that it will be accepted as unquestioned evidence, notwithstanding that it emanates from a government with a track record of IT incompetence via civil servants who could not specify a pizza topping let alone a sophisticated computer system. Anything where this type of person works involves the abnegation of responsibility from the individual to “the system”.
We desperately need recruits in the same way that nursing does. Litigation support is one of the last areas where a lively, intelligent young man or woman can make his or her mark without first having to sit exams. It is an activity in which people can still transfer from other careers, bringing the skills and knowledge acquired there. As soon you set off down the certification route, you begin to erect barriers against such people – that may not be the intention at the outset, but it will not take long for the control of certification to pass into the hands of people without any commercial sense and without any understanding of what makes the industry work.
I do not take this line under any illusion that we are and should remain free spirits in a Woodstock-style, anything-goes way, nor is it merely my loathing of bureaucratic processes and the little plodders who run them. This is a multi-billion dollar industry, and it serves not merely the financial interests of clients but the wider interests of justice. I am concerned about the quis custodiet point, about the difficulty of deciding on what the standards are and who should set them, and about the collateral drawbacks of people with concealed interests and their own agendas. Most of all, however, I am concerned that moves towards certification will block the entry of the new recruits which this industry will desperately need as we climb out of recession.