Each December, Computers & Law editor Laurence Eastham asks for predictions for the year ahead. I used to be very serious about this, straining to think about how eDiscovery / eDisclosure law, technology and practice would develop in the next twelve months. Others would be doing the same, and we all came up with more or less the same predictions. I think it was the Mitchell case, and the absurd consequences as judges tried to implement its stupidity, which tipped me towards a less serious approach.
Laurence Eastham has kindly permitted me to republish my 2018 predictions, originally published here on the Computers & Law site with the heading Chris Dale has made a habit of sending SCL a great set of somewhat acerbic predictions. Here is another glorious product of his warped crystal ball.
We are urged this year to think back to our predictions for earlier years and to see how they fared. Most of mine fall under two main headings: one was that judges would become militant enforcers of the rules of civil procedure as they relate to disclosure; the second was that the Ministry of Justice will foul something up or close something down, generally undermining the purpose inherent in its name. Other themes include the growing importance of the data we create with our smart devices, often without knowing it, and how that can come back to bite us.
Let’s take the judges first.
Judges have notably failed to engage with the problems caused by disclosure. A working group, chaired by Lady Justice Gloster, has come up with a draft new rule and, in reciting defects which warrant this, specifically put the judiciary on the naughty step, saying ‘Neither the profession, nor the judiciary, has adequately utilised the wide range of alternative orders under CPR 31.5(7)’. In other words, we have been given a whole new rule because no one took any notice of the existing ones. It will take a while for the new rule to work its way through consultation and the Rule Committee, but I am happy to restate my evergreen prediction that judges will now start enforcing the existing rule, now motivated largely by the fear that Lady Justice Gloster will otherwise put her head round the door and administer chastisement.
My long-standing motto RTFR (Read the F* Rules) will become the judicial catch-phrase of the year, and counsel will find that raising their eyebrows and turning languidly to their instructing solicitors no longer suffices as excuse for not addressing the issue at CMCs. At least one judge will have RTFR tattooed on his, or more probably her, knuckles.
Having closed courts more or less at random, the Ministry of Justice will extend its plan to keep litigants and their lawyers at bay. Extending its successful tactic of never answering the phone, HM Courts and Tribunals Service have instituted a scheme by which even the most senior and respected barristers must queue in the snow to get into the few remaining courts past the outsourced security goons. By Easter, cut-price justice will reach its logical conclusion as parties and their lawyers camp overnight in the street in order to get into court on time, like shoppers at the sales.
The CEO of HM Courts and Tribunals Service has made a promising start, actually engaging with the profession which her department exists to serve. I give it six months until the government cuts the funding promised for the new IT initiatives, before the system specifications change beyond recognition, before the relevant civil servants move on to something less challenging, and before the whole electronic courts plan falls to the ground. That is what has happened with every preceding initiative, anyway.
A small firm from an unfashionable town north of Watford will take on a City giant with the help of a good eDiscovery provider, technology-assisted review, a team of reviewers from Hyderabad and, of course, a well-thumbed copy of the White Book. They will come before the judge with ‘RTFR’ tattooed on her knuckles and the big firm’s clients will be struck out for multiple disclosure failures before any hearing on the substantive issues.
2018 will be the year in which litigators and investigators finally tumble to the quantity and value of information stored in smartphones, in photographs and on social media (often in all three at once). A multi-million pound civil claim will be lost because a CEO’s daughter’s friend’s mother’s sister tagged him in a Facebook photograph as attending a nativity play at the time he claimed to be at a significant meeting.
A celebrity ‘actress’ will find herself embarrassed when pictures are published as she is about to sell her story about nude frolics with three footballers in Bradford. The metadata and geotagging in the photographs (from her mother’s Facebook) clearly show that she was in fact attending a knitting circle with her grandmother in Carshalton at the time of the alleged incident, and she loses the deal. Disputes lawyers will find themselves explaining to IT why their Google searches include the phrase ‘nude actress’.
Smart devices will get quicker and more intrusive without getting much smarter, translating our every spoken word into action. Meanwhile, the terminology of legal technology will begin to take hold, even among the older set-in-their-ways lawyers. ‘AI’ and ‘TAR’ will become part of their lexicon even if they are unsure of their meaning. ‘We’re gonna need TAR, baby’ says a male child-of-the-70s partner to his assistant as they contemplate a big discovery exercise. Within minutes, Amazon will send a steaming truck of boiling road-surfacing material, Facebook will offer a biography of John Loudon McAdam, Alexa will start playing ‘A British Tar’ from HMS Pinafore, and Siri will explain that ‘tar-baby has become shorthand for a situation better avoided than confronted’ thanks to the Uncle Remus stories.
As always, new developments will make lawyers willing to consider the last development-but-one. As artificial intelligence spreads, lawyers will consider technology-assisted review. As a new discovery rule emerges, lawyers will start reading the existing rules. As more evidence emerges from smart devices, social media and the Internet of Things, lawyers will begin to take email seriously. As courts stand empty, with no judges to hear cases, telephones ringing in empty offices, and queues of lawyers at the doors, the MoJ will claim that its reforms have successfully tackled the problem of court overload.