In these last few days of December as we pass the shortest day and can begin to dream of spring, I find myself coming into a Christmas spirit of both the religious and the alcoholic variety. We are all familiar with the song The Twelve Days of Christmas with its partridge in a pear tree and its lords-a-leaping but for those who may have difficulties of recall in these Christmas party-excess fuelled times, the first verse runs:
On the first day of Christmas, my true love gave to me…
A Partridge in a Pear Tree.
The second verse:
On the second day of Christmas, my true love gave to me…
Two turtle doves
And a partridge in a pear tree.
…and so forth, until the last verse:
On the twelfth day of Christmas, my true love gave to me…
12 Drummers Drumming
11 Pipers Piping
10 Lords-a-Leaping
9 Ladies Dancing
8 Maids-a-Milking
7 Swans-a-Swimming
6 Geese-a-Laying
5 Gold Rings
4 Colly Birds
3 French Hens
2 Turtle Doves
And a Partridge in a Pear Tree.
But what does it mean?
Theories abound but, in the light hearted spirit with which this blog is associated, together with yet more unsubtle hints about ways in which the legal profession might be encouraged to tackle the issues of electronic disclosure, I thought I would attempt my own explanation of the song. The origin of the song is obscure, so I will not have to apologise to anyone for mangling their original ideas!
You need to understand that the singer is a lawyer who is the lucky recipient of “gifts” from the bringer of Christmas cheer, a potential new client Mr Truelove, who is keen to ensure that his chosen lawyer understands the rudiments of e-disclosure.
A Partridge in a Pear Tree: this must mean a general willingness to consider techniques which may assist in making the process of litigation more cost effective for the client while at the same time allowing the lawyer to add value by demonstrating expertise not only in the law but also in the process of getting at the issues and achieving a good result for the client Mr Truelove.
Two Turtle Doves: Knowledge of at least two e-discovery providers so that when pressed, the lawyer may know to whom to turn. It is generally too late to start this exercise by the time the case has begun.
Three French Hens: No jokes here about “les grenouilles” as I do not intend to stoop so low as to metaphorically kick a man (La France?) when he or she is down. Mr Truelove regards it as essential that his chosen law firm is familiar with some of the major concepts behind e-disclosure. There are more than three but how about (1) linear review is ruinously expensive; (2) electronic documents should not be printed out: and (3) e-disclosure providers should be regarded as experts in their field (which they are) in the same way as Counsel or a medical expert.
Four Colly Birds: At least once a month keep up to date with general developments in the field of e-discovery by looking at relevant and helpful sources of information, eg: blogs (of course!!), The Society of Computers and Law, articles written by your peers and once a year, if not more, attendance at a conference or training session on the subject. Remember that Jackson is urging those involved in training the profession to start offering training to lawyers. How long before it becomes compulsory?
Five Gold Rings: The gold standard for e-disclosure: be familiar with Part 31 CPR, the Practice Direction 31B, the Electronic Documents Questionnaire (not used nearly enough yet), the cases (there are not that many, see resources section) and the changes to Rule 31 proposed by Lord Justice Jackson and which may well become law by October 2012.
Six Geese-a-laying: As the football fans amongst you would say, we are now getting to the results section. The fruits of adherence to the first five stages should begin to become clear in terms of the strategy to be adopted in the case regarding the documents involved and where costs can be saved. The number of advantages perceived at this stage is irrelevant as long as they appear! They will.
Seven Swans-a-Swimming: There is always a lot of work to be done behind the scenes (under the water) to ensure that the litigation runs smoothly or at least appears to do so. Important matters include an understanding of the objectives and the adoption of a suitable workflow to ensure that those objectives are achieved. Also it is vital to work closely with your provider of litigation services to ensure the project remains on track.
Eight Maids-a-Milking: Do you remember the cartoon of the claimant standing at the head of the cow and the defendant at the tail both pulling like mad while the lawyer sits calmly on his stool milking the animal? Enough said! Lawyers can and do of course make good money out of litigation, and it is right that they should do so, but clients will not be too happy if they feel they are being milked. An eye on costs savings and better and more efficient ways of delivering the service will always be appreciated.
Nine Ladies dancing: The overall result is a success, the client is happy and the project has been brought to a positive conclusion. What is there not to dance about?
Ten Lords-a-Leaping: I suppose that the successful use of e-disclosure techniques may mean that their Lordships, as they used to be known or the Supreme Court Justices as they are now known in our determinedly more egalitarian times, are less likely to be required. Congratulations by the way to the two new appointees Lords Reed and Carnwath who will soon be joined by Lord Sumption once he is free of the Russian oligarchs.
Eleven Pipers Piping: General celebrations for a job well done!
Twelve Drummers Drumming: Not so much a celebration but a quiet recognition amongst your clients and your peers that you are a serious force to be reckoned with. New jobs will certainly follow once you have proved your worth. Who knows, your opponents may also be willing to endorse your efforts and send you instructions in the future when they acknowledge that you did a very good job. As good a way as any to drum up new work!
The Twelve Days of Christmas traditionally end on the Feast of Epiphany (January 6th) and I am hoping that means that I need not publish another post before then!
A very Happy Christmas to you all!