In electronic disclosure as in everything else, the technology itself is unlikely to cause the problems. For the moment at least, it needs direction from human intelligence. Money spent on equipment is wasted if not supported by a brain cell or two and some project management skills.

The information boards which are spreading along Britain’s motorways are a good example of  technology applied to a useful, everyday purpose. They give the ability to forewarn drivers of danger or delay ahead so that they can slow down, plan a diversion or whatever. You can now even see what the notices say from the website at TrafficEngland – I guess it is technically quite simple  to repeat the information there but that makes it no less useful and it seems very clever even if, as my picture shows, half of them merely consist of nannying advice – there are few things quite so annoying as getting unsolicited advice from people you despise.

I imagine that the infrastructure and the software behind all this cost many millions of pounds. The problem is that its information rarely seems to be accurate and this, I am sure, is a human failing rather than a technological one. One can picture a little civil servant glowing with pleasure as the expensive machinery is rolled out, congratulating himself as he trots off to collect his bonus – many British civil servants these days draw their pay for just turning up, and get large bonuses if they actually do anything. I suspect that there is no bonus for actually running the system properly.

I came down the M1 last week, for the most part at 70 mph in the outside lane. One of the overhead signs told of a tailback ahead and recommended a speed limit of 60 mph; a mile or two further on, the limit was reduced to 40 mph. Experience suggests that the notices have an accuracy rate rather worse than 50%, so I weighed the possibility of the information being correct against the chance of being rammed from behind by someone who had reached the opposite conclusion, and maintained my speed. No one else slowed down either. There was no tailback.

Since the collective experience is that the signs are inaccurate, the whole investment is useless – worse than useless, in fact, since incorrect information is of less value than no information. It would be good to interview the little civil servant to try and find out what the problem is. I picture him dangling by his thin little tail and squeaking, with his pink eyes blinking and little front paws scrabbling in the air. What, I wonder, would he offer as an excuse. Would he say that the budget had not run to training? That some other little civil servant was responsible for operation? That it did not matter very much what the notices said, the important thing was that they were there and should be obeyed? As you dropped him squealing into the water and flushed him away, you would just shrug your shoulders at another few millions wasted and at an opportunity lost to do something useful with an expensive investment in technology.

I am prompted to these thoughts by an article by David Cowen of litigation support recruitment specialists The Cowen Group (I make no apology, incidentally, for quoting Cowen twice within a few posts – he does some good thinking in this area and, besides, I found the second reference whilst pursuing the first, and grab it whilst I have it).  Called What’s your challenge the article reports on a show of hands poll at ILTA. Cowen says:

20% said their greatest challenge is technology, 60% said it is process workflow and 20% said it is people. If 60% of the challenge is process workflow, isn’t that truly a challenge about people? Without the right people, you can’t originate, implement or execute the process or make informed technology decisions.

That ratio of 20:80 is probably about the same as the typical ratio between technology spend and the people cost of running an e-discovery exercise. Given the current quality of the technology, it is far more likely that errors will derive from the people rather than from a failure of software or  hardware, and most of those errors will lie in the planning and management  rather than in misuse of the applications. The area to focus on, therefore, is not the partners who are masterminding the case nor the coders and operators who are doing the grunt work, but the project management layer, the NCOs who lie between the generals and the foot soldiers. As an industry, we are desperately short of them – are there as many as twenty people in London law firms who are capable of converting the power of the technology and the work of the hands-on users into the result which the senior lawyers need?  In relative terms, the position appears to be no better in the  US.

There are two common knee-jerk reactions in these situations – first to blame the technology and second to assert that more or better training will solve the difficulties. As I have said, the technology itself is unlikely to be the cause of the problems. Training is important, of course, but civil servants seem to spend half their lives on training courses, much good does it do them or us. The real problem is that we are not drawing in the right sort of people.   The law firm which wants to succeed in this area must come to see that this position – call it litigation support manager or what you will – is critical to success. Candidates might be lawyers; they might move across from IT; they might have neither of these backgrounds but merely have the potential, the enthusiasm and the interest to be the pilot members of a new profession, and that is what matters.

The alternative, which is just as good, is to strike up an alliance with one or more providers of software and services and effectively outsource the task to them. Ideally, this involves more than a series of one-off ad hoc engagements and, instead, the integration of their services into the litigation team. It needs no great formality, and need not involve much in the way of expense beyond project-specific costs referable to a particular matter. You need to be as confident in the skills as you would want to be with an employee, and to have some idea what they will charge you, and on what basis. It helps if you actually like them as people.

There is no shortage of manpower in the public service – they say you are never more than a few feet from a civil servant. The civil service is a lost cause, however, for the moment at least.   It will take a generation, the restoration of a proper state education system and the retirement of the present managerial layer before we can hope to restore the idea that public service is a worthy destination for intelligent, ambitious people. Until then, we can only watch as money is poured into projects like the motorway signs as if the mere spending were an end in itself. Law firms have both the incentive and the opportunity to seek out intelligent, ambitious people now. If I were running a litigation department, my next investment would be in someone with the potential – if not yet the experience – to be a discovery project manager.

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