Today’s Times reports on the launch of a new Judicial College which will give judges the opportunity to top up their skills and keep up to date with developments in the law, practice and procedure. The Lord Chief Justice, Lord Judge, introducing the new scheme, makes the point that judges work alone and that “one judge very rarely sees how another judge sets about his or her work”.
The prospectus for the new college will be published next week. It will be interesting to see if case management, and in particular the handling of electronic disclosure, will feature in the prospectus as a stand alone topic.
Disclosure is one of the biggest components in a civil litigation case. Its costs have grown in proportion to the volume of documents which exist, and out of all proportion to the sums at issue. Judicial control of electronic disclosure or, rather, the lack of control, was highlighted in a report by KPMG in October 2007. Many of those who made representations to Lord Justice Jackson’s Civil Litigation Costs Review emphasised the importance of helping the judges with this, and he so recorded in Part 8 of his Preliminary Report (see pages 381 and 382).
Many elements are involved here. The most significant, in terms of its potential to reduce the cost of litigation, is the easiest to deal with – few judges are aware of the rules specifically designed to manage electronic disclosure. These lie in the Practice Direction to Part 31 CPR which, as Senior Master Whitaker predicted when they were drafted in 2005, lie unused because they are buried. Part 31 CPR itself is both reasonably well drawn and appears on its face to provide a full code for handling discovery. The bits which really matter – the PD obligation to discuss electronic sources and the format for exchange – are rarely invoked. I make a habit of asking audiences if they have heard of the Practice Direction . The hit-rate has ranged from 0% to 50%, and this amongst audiences which have presumably gathered because they are interested in e-disclosure (it is getting better, bit by bit). I have to say that, on two occasions last year when I had large judicial audiences, my nerve failed me when I was about to ask this question and I chickened out.
Anecdotally, many judges prefer that the subject does not come up and are not too sorry when the parties neglect to raise the subject at case management conferences. They have the fallback, or so they think, that they can simply make an order for standard disclosure and leave it to the parties to decide what is right. That is the path which leads to Digicel v Cable & Wireless.
I have made the point before that judges have little opportunity to get their minds around disclosure in their earlier careers as barristers. Some have been on the bench since Bill Gates was a boy (well not quite, but long enough ago that the “E” in E-disclosure did not exist). Anyway, it is generally solicitors who handle disclosure and judges are mainly ex-barristers.
Another factor which, unsurprisingly, serves to put them off asking about electronic disclosure is the fear that the answer will involve a degree of sophisticated technology which they do not understand (and cannot be expected to understand intuitively). Arguments which pit one technology against another are, fortunately, rare in the English courts. The only thing judges need to know is the importance of keeping it that way rather than letting themselves be drawn into competing claims about the merits of one brand of technology versus another. Two expressions spare us that – the reference in Digicel to not peering under every stone (itself derived from Lord Justice Jacob’s words in Nichia v Argos), and the magic word “proportionality” (see Jackson at pages 379 and 380 for as succinct a summary as you could want of the “every stone” point).
What judges do need to know is what technologies exist and, in broad terms what they do. Awareness of conceptual search, e-mail threads, near-duplicates, clustering and the rest is all that is required to help them, in turn, ask the parties at CMCs if they have given thought to the use of any of these tools, to establish what the costs are, and to compare those costs with any alternatives.
The other factor which judges are fearful of, as I have said often, is what happens in American litigation or, rather, their perception of the American experience. The US case law conveys the impression that lawyers need to understand sophisticated technology. Most usually they have failed to follow some basic yet fundamental steps required by the rules and the cases, and the problem lies in a human failing, either of simple ignorance or of neglect. If you put petrol into your diesel-engined car and then drive it at a wall, the resulting expense is not the fault of the car’s manufacturer, nor is reversion to a horse and cart the only way to prevent the same happening next time. Blaming the technology is not the answer.
When American judges fail to manage their cases that is not, on the whole, for lack of opportunity to learn. Apart from the Federal Judicial Center (which I hope to visit when I am in Washington for the Masters Conference in October) there are other judicial training facilities offered to US judges. When I first met US Magistrate Judge John Facciola (himself influential in education about e-discovery from both Bench and podium) he spoke of the extra-curricular advantages of attending residential judicial training sessions. The big benefit, he said, lay in the opportunity for discussing with other judges the cases which they had handled and the reasons why they had arrived at particular decisions. American lawyers have an advantage over us in this regard since a much wider range of cases is reported. That seems unlikely to change here, but the proposed new courses will give judges the opportunity to find out what others are coming across and what orders they are making.
I am catching the occasional rumour of judges who, confronted by parties at CMCs who have not complied with their obligations to discuss their clients’ electronic document sources, have sent those parties away, ordering them to come back when they are fit to have the discussion. It takes some courage to do that, since it involves short-term extra costs on both sides and the potential for slippage in the case time-table. It is, nevertheless, the right thing to do, at least where enquiry reveals or common sense suggests that failure to grasp the nettle at the CMC will result in higher costs and delay later. Cases do not have to be in the Digicel league before disclosure gets out of hand. Judges merely need to be equipped to ask the right questions; the facts and figures emerge from the parties’ discussions, and the answers from the judge when he has heard the facts. Judges are good at that – but they must first know what questions to ask.
Journalists reporting on judicial education cannot resist references to judges’ gaffes and what the Times article refers to as “misjudged remarks” which have raised concern, at least amongst readers of the Daily Mail. An outsider’s perception is that too much of the limited judicial training time hitherto has been spent on soft social skills at the expense of hard, practical information about subjects like electronic disclosure. We must, surely, be past having to give them equalities and discrimination training.
This judicial training development is to be welcomed. I look forward to seeing the prospectus next week.