I wrote last week about the session run by ACEDS and sponsored by Integreon on the first 10 months of the disclosure pilot. Vince Neicho of Integreon has also now written about it (see What We Learnt About the Disclosure Pilot 10 Months In) and I draw your attention to his article for its emphasis on one particular point.
That is the minimal take-up of the new Disclosure Guidance Hearings which, as Vince Neicho puts it, are “hearings designed to facilitate a discussion between the parties and the judge where agreement has not been possible on aspects of the disclosure process”. The emphasis, as Vince Neicho points out, is practical rather than legal. The court needs to hear from the “legal representative with direct responsibility for the conduct of the disclosure process”.
Vince Neicho suggests that we might separate legal questions (such as the list of disclosure issues) from arguments about getting the job done, and (as Vince puts it) “disputes on scope, accessibility and formats of data”.
I know that not everyone approves of the expression “bring your geek to court” introduced by retired US Magistrate Judge Andrew Peck, but it neatly encapsulates the idea that the courts stand a better chance of understanding the practical problems if they are explained by the person actually dealing with them (who may or may not be the lawyer with the conduct of the case).
We have also seen judicial criticism in cases where nothing is brought before the court from the clients themselves. I remember years ago hearing from a very cross client whose lawyers had agreed to a timetable which was unachievable without throwing vast resources at the task; given a few more days, the clients could have done the job themselves. Nobody asked them.
It would be good to see better use of the Disclosure Guidance Hearings, perhaps with a longer time allocated than the 30 minutes provided for in the pilot, and with the involvement of the people best able to explain what problems need to be resolved