The recent Raconteur supplement to the Times was called Legal Efficiency 2013, and I was asked to contribute an article about the Jackson reforms. It was given the title Efficiency reform of legal process, reflecting my message that there is a coincidence (or, more properly perhaps, an unsurprising conjunction) between:
- the requirement in civil proceedings to discuss sources of electronic information, the tools and techniques to be used and the likely costs of giving disclosure
- what the clients expect in relation to any other project – there is nothing else in which they engage without first assessing cost and risk, as well as the potential benefit
- the suggestion by Professor Richard Susskind that lawyers must ask themselves what elements of their current workload could be undertaken more quickly, more cheaply, more efficiently, or to a higher quality, using different and new methods of working.
The “tools and techniques” point (the words are used together in Practice Direction 31B) embraces both software solutions and the manner of managing of the project. Whatever else you accept or reject from Richard Susskind’s propositions, it is hard to argue with the idea that the demands of efficiency, never mind the demands of clients or court, lie in working out what is the lowest-cost way of achieving a task consistent with an appropriate level of quality. In many cases, that will involve tools like predictive coding and the use of outsourced managed review. This is not to say that these will be right for every case, but their use must be considered.
Every so often one gets a word in one’s head which one finds oneself using over and over again. At the moment, the word stuck in my head is “articulate”, meaning (in this context) the ability to argue persuasively (to the client, to the opponent and ultimately to the court) that the course proposed is the best one having regard to the rules, the objectives and the cost. You cannot articulate what you do not understand and what you have not pre-estimated.
Mark Cordy of Recommind, in a quotation which I give in my article, uses the same word, referring to “the need to articulate the value” of the costs incurred in making the investigations. To him, the use of technology like predictive coding frees up senior lawyers to concentrate on strategy and tactics at the stage when it is most valuable.
Saida Joseph of Epiq Systems, who is responsible for Epiq’s managed document review services, emphasises that it is misleading to think of the eDisclosure costs as belonging solely to the formal task of disclosure – it is “an essential component of fact-finding throughout the life of a case” she says.
The investigations which are preconditions for proper disclosure cover the same ground as the strategy and tactics referred to by Mark Cordy. A proper understanding of the electronic sources, and the costs of managing them, therefore fits neatly with the definition of efficiency which I give at the top of my article – “the ratio of useful work performed to the total energy expended”. If you are sweeping up fact-finding, strategy and tactics at the same time, then the work which goes into eDisclosure meets this definition of efficiency.
I should make it clear, for the avoidance of doubt, that I did not write the description of the article which appears above the picture. I would probably have contented myself with one variant of Jackson’s name, and not tried to fit them all into one grandiloquent title. He is Lord Justice Jackson or Sir Rupert Jackson (or Jackson LJ when referred to in judgments and the like). We also talk of eDisclosure rather than eDiscovery, and to call them all “legal documents” loses a valuable distinction. Apart from that, the heading is fine.
Such quibbles apart, this is an extremely useful publication, including articles from Charles Christian, Jim Kent of Nuix, Andrew Haslam, Ron Friedmann, Seth Berman and global futurist Rohit Talwar amongst others.
Seeing the names of Richard Susskind and Rohit Talwar in one article will, I suspect, cause some gnashing of teeth in certain quarters – I say this because of the reaction on Twitter recently when both names kept popping up in tweets about conferences at which they were separately speaking. I aim to write about the value which such people bring to the discussions, and about conferences generally, shortly. It may have to wait till after my next round of sitting on aeroplanes.