The dictionary defines “efficiency” as “the ratio of useful work performed to the total energy expended”. Traditional approaches to legal disclosure – the sharing of documents with the other side during the course of litigation – have generally achieved the opposite of this definition, with “total energy expended” bearing no relationship to the “useful work performed”, particularly if “useful” refers to documents which made any difference to the outcome of the case.
The Jackson reforms – the biggest shake-up in case management for more than a decade – require a focus on efficiency and, in this context, it is helpful to look at electronic disclosure in law as a business process as well as a legal one.
It is relevant to recall the suggestion by legal technology expert 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.
Although Professor Susskind’s comments are directed primarily at external lawyers, the player with the biggest interest in bringing business efficiency to the disclosure process is the client.
It is the client’s objectives which are at stake and it is the client who will be picking up the bill, including the costs of the other side, if the case is lost. Clients are taking an ever-larger role in disclosure, either by taking parts of the work in-house or by directing more closely how the work is done and by whom.
Solicitors are increasingly finding themselves servants in someone else’s process, required to work with others – the client’s preferred technology or legal process outsourcing providers – as well as with the client.
Before lawyers can have the required discussions, they must first form a view on the proper scope, the appropriate tools and techniques, and the costs likely to be incurred in giving disclosure. They must make investigations, have discussions with appropriate people at the client and, almost certainly, involve a provider of relevant software and services to bring their professional expertise to bear on the problem.
Lawyers must be familiar with what these tools do, what they cost, what they can achieve and in what circumstances they might be used
As Vince Neicho, litigation support manager at law firm Allen & Overy, puts it: “Before you can co-operate with the other side, you need to co-operate on your own side.” Clients should insist on this if their lawyers do not initiate the discussions.
The expression “tools and techniques” comes from practice direction 31B of the Civil Procedure Rules. Lawyers must consider whether they can properly comply with their professional duties and with the rules if they are not familiar with the “different and new methods of working” mentioned by Professor Susskind.
While “tools” clearly implies technology solutions, the reference to “techniques” implies a wider subject, including the possibility that an outsourced service can do the job “more quickly, more cheaply, more efficiently, or to a higher quality,” as Professor Susskind put it. External lawyers may need a nudge from the client to go in this direction.
A wide range of software tools is available to reduce volumes, to identify key players and pools of data, to find what matters and to assess the task ahead. They range from simple keywords through to the sophistication of predictive coding, and include e-mail threading and near-duplicate software, and applications which cluster together documents with similar content.
Lawyers must be familiar with what these tools do, what they cost, what they can achieve and in what circumstances they might be used to acquire the relevant information quickly and cost-effectively.
While a case management conference – now a key pre-trial procedure – decides both the scope and method of disclosure, some preliminary work is necessary to be sufficiently informed to engage in discussions. It may be worth investing in time and technology upfront in order to diminish the task ahead.
Along the way, there is the acquisition of knowledge which has both strategic value – is this case worth fighting? – and tactical benefit in the sense that the lawyer who is well-informed, about the evidence, as well as about the facts, the issues and the law, has an obvious advantage over an opponent who has none of these things.
The conventional view, as expressed by external lawyers at least, is that clients are unwilling to spend money in advance which might be deferred or avoided by earlier settlement. An alternative approach, and one which fits more closely with what commercial organisations do for any other project, is to test the depth of the water before plunging in.
The traditional approach involves junior lawyers clocking up hours on a first-pass document review, using one or more of the available grouping and searching software tools, and passing their conclusions upwards for senior lawyers to review.
Predictive coding inverts the normal approach to eDisclosure, also known as eDiscovery. Senior lawyers and case strategists mark subsets of documents as relevant or not relevant. The system “learns” the characteristics of relevant and irrelevant documents, and applies that learning across the wider document set. The chief benefit is a ranking by presumed degrees of relevance from 100 down to 0. There is obviously pre-emptive investment here.
Mark Cordy, European director at predictive coding provider Recommind, says: “Lawyers need to be able to articulate the value of this upfront cost. The use of technology like predictive coding means that more partner time is devoted to strategy and tactics. Prioritisation gives the most important documents to the A-team, allowing them to add value to the decision-making process and to the strategy and tactics at a time when it is most valuable.”
This value goes to more than the formal obligation to give disclosure. Saida Joseph, international director of document review services at Epiq Systems, says: “The review of documents and the heavy lawyer-hours this entails is not just for the purposes of disclosure, but is an essential component of fact-finding throughout the life of a case. Pleadings, affidavits and witness statements all depend on an understanding of what is in the documents, and it is misleading to look at disclosure as a stand-alone spike in the overall costs.”
Clients have choices here and not just in selecting external lawyers. They can make their own alliances with suppliers of software and services, and can choose to bring software solutions in-house. Lawyers who want the work can develop their own relationships and their own understanding of what can be done, and what can be saved with software tools and by external service providers.
RULE CHANGES TO CUT COSTS
A summary of the reforms:
- The overriding objective emphasises the obligation to conduct litigation at proportionate cost
- Parties must file a disclosure report identifying the categories of documents to be disclosed and the costs of standard disclosure
- Parties must “discuss and seek to agree a proposal in relation to disclosure that meets the overriding objective”
- The court may choose from a “menu option” of disclosure orders and direct how disclosure is to be given
- Certain cases will be subject to costs management, requiring the parties to submit budgets
- It will be harder to get relief from sanctions for non-compliance with rules, practice directions or orders.