At first glance, it may seem that my headline is somewhat repetitious, but you read it aright. Many lawyers engaged in litigation in England and Wales are well prepared for whatever comes from the new rules, and find the obligation to agree budgets with opponents merely an extension of something which they always do for their clients anyway. Others need to get ready to be ready for the idea.
Joanna Goodman of the new magazine Legal IT Today asked me to write an article for its second edition (you will find it here), giving me a wide brief to write something about case management, cost estimates and budgets. I did not provide the heading eDisclosure: be prepared to prepare, but it is a reasonable label to give to my article, whose sub-heading was Preparation brings benefits in post-Jackson eDisclosure case management.
A quick skim of most of the articles written about Jackson and eDisclosure shows a focus on the risks and burdens. You won’t find me underestimating these and, indeed, I open my article by saying that it is “foolish to suggest that it will prove easy to comply with the new rules.”, not least because of the wild-card represented by the judge. You can go fully-prepared to a CMC and find a judge who simply does not get it. There is more to this than just risk, however, and my approach in the article (which you will find at page 32), is expressed thus:
Despite all this, however, the purpose of this article is to suggest that there are benefits, strategic, tactical and beyond, which are available to those willing to take them. If this is the glass half-full view, then its glass half-empty corollary is that serious risks face those who are unfamiliar with the rules and how to deal with the new obligations.
The rest of the article considers some of the things which lawyers and their clients might like to consider doing as it were in the abstract, in anticipation of litigation generally rather than in the context (usually a fairly busy context) of a particular case. Suggestions include: keeping a record of a company’s potential data sources and updating it from time to time so that the whole job doesn’t have to be done from scratch in a hurry; getting to know one or more providers of relevant software and services; and keeping a spreadsheet of metrics from past cases to inform decision-making about the next one.
The tactical message is summarised in this passage:
The party who is manifestly on top of the data can appear daunting to one who is less well-prepared.
There is plenty else to read in this edition of Legal IT Today from contributors who include Ari Kaplan and V Mary Abraham. I am glad to have had the opportunity to put an eDisclosure article alongside those about knowledge management and about legal practice.
As a side-note, I do not often provide articles for other people to publish, partly because I have enough to write anyway for my own outlets, and partly because editors have an unfortunate habit of, well, editing, and I invariably disagree with their changes. I have not read the published version because I trust Joanna Goodman to leave well alone, but I must take issue with one thing which appears in it (which was not down to Joanna).
One of the idle cliches of litigation writing is to illustrate everything with a picture of a gavel. I dislike it anyway because it is so hackneyed; I dislike it even more when used in a UK context, because the only people who use gavels here are auctioneers, and the banging of a gavel therefore signifies that something has just been sold to the highest bidder – not a great symbol of justice. Let’s give the gavel the elbow.
This is a minor, and personal quibble. My thanks to Joanna Goodman for the invitation to write a piece in this useful publication.