At approximately 3pm on Wednesday October 26th 1881, a gun battle took place in Tombstone, Arizona involving the legendary Earp brothers and “Doc” Holliday. The fact that the fight did not actually take place in the OK Corral did not prevent it becoming known by that name nor does it detract from its notoriety even some 129 years later.
When I was about 7 years old my Canadian godfather, who lived in Calgary, sent me a pair of cap and ball guns with silver plate and ivory handles engraved with the name Wild Bill Hickok and the holster and leathers to go with them (sadly all imitation). Incidentally, I suspect that this would now be regarded as a wholly inappropriate and un-PC present today. More’s the pity!
I have always had a fondness for the Old West and a particular childhood favourite was the TV western series “Bonanza“. Broadcast in the 1960s, it featured the Cartwright family of father and three sons and their lives on the deliciously named “Ponderosa” Ranch in Nevada. There were plenty of adventures along the way but as was usual in those more innocent days “the good guys” used to win in the end.
So, is it going to be one hell of a shoot-out or a bonanza year for all litigators? The legal press certainly thinks it knows who the winners will be in 2010. Almost daily, it is possible to find articles to the effect that litigation is on a roll, that clients are ready to press the button and that litigators are as busy as ever; and all this in an area of the law which has expanded over 50% in the last 5 years.
It is undoubtedly true that there are some big cases about. The Lawyer has published a handy guide: Top 10 cases of 2010: The battles commence.
The list contains cases of banks suing one another, property developers falling out, construction companies shouting “foul” at the OFT, Russian oligarchs doing what Russian oligarchs do and, of course, the collapse of Lehman Brothers producing the first of what has already been described, in one quarter, as the start of a decade of litigation.
Possibly the most arresting statistic about all this frenetic activity was contained in what appears almost to be a postscript to the article under the heading “The case of the Noughties” which turned out to be our old friend Three Rivers.
The collapse of another bank, BCCI, in the early 1990s gave rise to a series of cases which went up through the courts all the way to the House of Lords on several occasions giving rise to a number of decisions which resulted in changes to the law. But the staggering fact is that the original claim against the Bank of England for misfeasance was discontinued after approximately 15 years of litigation, on the 256th day of the trial which included a 79 day opening speech, at a mind-boggling cost of £110 million in legal costs!
The word “bonanza” might have been minted just for that case although, if we are to believe it, we may just have to come up with another once the Lehman related litigation really gets into its stride! Whether that proves necessary or not, we will have to wait and see but The Lawyer article also contains a table which shows that the top 6 firms in the UK by litigation turnover for 2008/9 aggregated the almost incredible sum of £946 million for the period.
If all this is rather difficult to grasp, we will doubtless all be brought down to earth in the next few days by the publication of the Jackson Review of Civil Litigation Costs. Commentators have vied with one another over the period since his interim report was published to identify the areas where he will concentrate his fire. I shall be most interested to see what he has to say about the appropriate, judicious and proportionate use of technology in an effort to drive down litigation costs.
Older and wiser lawyers used to complain that the introduction of the photocopier generated huge amounts of irrelevant paper at trials, the vast majority of which went unread by anyone in court. The complaint was that material was copied because it could be copied easily and not because it was relevant or furthered any one argument or case but “in case the judge wants to see it”.
The proper use of technology (or at the very least a proper consideration whether the use of such technology might be of assistance) ought to achieve something different. The technology exists today to assist the lawyer all the way through the litigation cycle or the EDRM model. It is available at an affordable price and delivers at a speed which cannot be matched by humans.
Human intervention (by lawyers, no less!) is fortunately crucial to the process. Lawyers need to do what lawyers are good at. They are good at identifying the issues, applying the law and deciding what evidence they will need to prove or defend a case for their clients. Technology is available to help with all these tasks. Failure to use it or properly to consider its use will only lead to unnecessary cost for the client, irrelevant material for the court and possibly to an order for wasted costs, an order that the process undertaken be done again or an order which leaves the successful party unable to recover its costs as in Earles v Barclays Bank PLC.
In the context of a likely bonanza all this may seem mundane, but I firmly believe that if the bonanza is to materialise, lawyers and their clients will have to grasp the technology nettle sooner rather than later. There is help at hand for those who are prepared to try! Perhaps this could be the first genuinely strategic step of 2010.