Waking the dead

“The adage that dead men tell no tales has long been disproved by archaeology…

So begins a fascinating article in the magazine Science Daily – Teeth Of Columbus’ Crew Flesh Out Tale Of New World Discovery 20th March, 2009

We are all familiar with television cold case programmes, such as Waking the Dead  where Trevor Eve and Sue Johnston dig up and investigate unsolved cases from the past. This article tells of a team of researchers from the University of Wisconsin-Madison who are extracting the chemical details of life history from the teeth of dead sailors left behind on the island of Hispaniola after Columbus’ second voyage to the Americas in 1493-4.

You may read the article in full if you are interested but I can tell you that the team may have already discovered that there were more people of African origin accompanying Columbus than previously thought, thus raising the possibility that Africans were in the Indies some considerable time before historians had estimated.

Mention of Columbus had me thinking in my hispanophile way about the great Isabella of Castile and her husband Ferdinand of Aragon, “los reyes catolicos” or the Catholic Monarchs who did so much to bring the reconquista of the Spanish mainland to a successful conclusion after hundreds of years of Moorish occupation by forcing the surrender of the last Moorish stronghold of Granada and its Muslim sultan, Emir Muhammad X11 (known throughout Spain as Boabdil) coincidentally in 1492, also credited as the year that the Italian born Columbus discovered America with the financial backing of the Spanish royals.

I hope you will not think that I am going off at a tangent when I remind you that in 1927, at the Royal Institute of International Affairs, now known as Chatham House, participants at a conference agreed to a principle which governs the confidentiality of the source of information given at a meeting so that better international relations might be achieved. The Rule, known as the Chatham House Rule (and not rules in the plural, because there really is only one rule!) provides that:

When a meeting, or part thereof, is held under the Chatham House Rule, participants are free to use the information received, but neither the identity nor the affiliation of the speaker(s), nor that of any other participant, may be revealed.

Mindful of the terms of the rule and the need to protect the anonymity of the speaker and any other participant and any affiliation they may have, I can only say that I heard it said recently that (and I may not have the exact words but the meaning is clear) Columbus, on setting out from Spain in 1492, had a better idea of where he was going, how long it would take and what the costs would be, than the average litigation lawyer embarking on a piece of modern litigation!

Ouch! Coupled with the further observation that there is nothing so expensive as cheap lawyers and you can see that the speaker had a serious point to make.

My take on this is simple. Today’s litigation lawyers are faced with an unenviable dilemma. On the one hand their clients are forcing them to consider the level of fees charged for, inter alia, preparation work which still accounts for about 35-40% of most litigation bills and the courts are becoming tougher on assessments of costs and sanctions for failing to conduct the exercise properly or proportionately. On the other hand they are faced with obligations such as disclosure where they can find themselves in the position where they have to examine and possibly disclose an ever increasing amount of documentation, most of which today will be in electronic form. Added to this dilemma is the unfortunate fact that very few law firms have an in house litigation support function which is capable of advising the client how to deal with what has previously been called a tsunami of data.

Recent cases such as Hummingbird in the US, which I have mentioned before, and the recent disclosure judgment by Mrs Justice Gloster in the Berezovsky/Abramovich dispute show that the subject is attracting more attention than ever from litigants and the courts.

Strategies to deal with the problem exist and I and other commentators have written about them before but as an illustration of the sophistication of the thinking which may be required appeared in The Lawyer earlier this month, noting that Addleshaw Goddard has agreed a conditional fee agreement with Mr Berezovsky in his dispute with Mr Abramovich. [Addleshaws to share risk in oligarch showdown, The Lawyer, 8th Nov, 2010]

The article suggests that if Addleshaws and Berezovsky win their case against Roman Abramovich the law firm may be awarded a success fee running into tens of millions of pounds and that the firm has taken out legal expenses insurance in case it loses.

Regular readers will know that I think that the lawyers who are prepared to offer their clients truly innovative solutions are likely to be the winners over the medium to long term and some of those solutions are based on the technology which is now available which can really transform a huge amount of unexamined data into a core data set of pertinent documents for the lawyer to read and digest and on which the client can then be advised in a cost effective and timely manner. The concept of early case assessment is not new but the tools to make it a reality are better and more sophisticated. They are available now and in the right hands processes which used to take months and cost many hundreds of thousands of pounds now take a matter of hours and can be completed for sometimes a few thousand pounds and often for a few hundred only.

Knowing where to look and what to look for is key and the earlier lawyers engage with their advisers on this issue the better for saving costs and working out a suitable strategy for the conduct of the case. There appears to be considerable momentum in the marketplace now and an acceptance that the sooner lawyers engage with those who can advise and assist the quicker they will be able to construct a strategy for dealing with a case resulting in savings in time and costs. As a senior litigation partner in a large well known law firm remarked to me only the other day, “we have come to the conclusion that we are going to have to engage with you and the whole subject of e-data from the outset rather than waiting until we are a week or so away from disclosure.” The Chatham House Rule and client confidentiality will only allow me to say, “He or she must be right!”

After all, I assume that lawyers will not want their handling of a case to be the subject of an episode of Waking the Dead. Still less will they or their clients want to wait many years for others to pick over the bones and establish the facts, when it is all too late and only of interest to scientists or perhaps insurers!