Predictions 2018 – 21

December 21, 2017

We are urged this year to think back to our predictions for earlier
years and to see how they fared. Most of mine fall under two main headings: one
was that judges would become militant enforcers of the rules of civil procedure
as they relate to disclosure; the second was that the Ministry of Justice will
foul something up or close something down, generally undermining the purpose
inherent in its name. Other themes include the growing importance of the data
we create with our smart devices, often without knowing it, and how that can
come back to bite us.

Let’s take the judges first.

Judges have notably failed to engage with the problems caused by disclosure.
A working group, chaired by Lady Justice Gloster, has come up with a draft new
rule and, in reciting defects which warrant this, specifically put the
judiciary on the naughty step, saying ‘Neither the profession, nor the
judiciary, has adequately utilised the wide range of alternative orders under
CPR 31.5(7)’. In other words, we have been given a whole new rule because no
one took any notice of the existing ones. It will take a while for the new rule
to work its way through consultation and the Rule Committee, but I am happy to
restate my evergreen prediction that judges will now start enforcing the
existing rule, now motivated largely by the fear that Lady Justice Gloster will
otherwise put her head round the door and administer chastisement. My long-standing
motto RTFR (Read the F* Rules) will become the judicial catch-phrase of the
year, and counsel will find that raising their eyebrows and turning languidly
to their instructing solicitors no longer suffices as excuse for not addressing
the issue at CMCs. At least one judge will have RTFR tattooed on his, or more
probably her, knuckles.

Having closed courts more or less at random, the Ministry of Justice
will extend its plan to keep litigants and their lawyers at bay. Extending its
successful tactic of never answering the phone, HM Courts and Tribunals Service
have instituted a scheme by which even the most senior and respected barristers
must queue in the snow to get into the few remaining courts past the outsourced
security goons. By Easter, cut-price justice will reach its logical conclusion
as parties and their lawyers camp overnight in the street in order to get into
court on time, like shoppers at the sales.

The CEO of HM Courts and Tribunals Service has made a promising start,
actually engaging with the profession which her department exists to serve. I
give it six months until the government cuts the funding promised for the new
IT initiatives, before the system specifications change beyond recognition,
before the relevant civil servants move on to something less challenging, and
before the whole electronic courts plan falls to the ground. That is what has
happened with every preceding initiative, anyway.

A small firm from an unfashionable town north of Watford will take on a
City giant with the help of a good eDiscovery provider, technology-assisted
review, a team of reviewers from Hyderabad and, of course, a well-thumbed copy
of the White Book. They will come before the judge with ‘RTFR’ tattooed on her
knuckles and the big firm’s clients will be struck out for multiple disclosure
failures before any hearing on the substantive issues.

2018 will be the year in which litigators and investigators finally
tumble to the quantity and value of information stored in smartphones, in
photographs and on social media (often in all three at once). A multi-million
pound civil claim will be lost because a CEO’s daughter’s friend’s mother’s
sister tagged him in a Facebook photograph as attending a nativity play at the
time he claimed to be at a significant meeting.

A celebrity ‘actress’ will find herself embarrassed when pictures are
published as she is about to sell her story about nude frolics with three
footballers in Bradford. The metadata and geotagging in the photographs (from
her mother’s Facebook) clearly show that she was in fact attending a knitting
circle with her grandmother in Carshalton at the time of the alleged incident,
and she loses the deal. Disputes lawyers will find themselves explaining to IT
why their Google searches include the phrase ‘nude actress’.

Smart devices will get quicker and more intrusive without getting much
smarter, translating our every spoken word into action. Meanwhile, the
terminology of legal technology will begin to take hold, even among the older
set-in-their-ways lawyers. ‘AI’ and ‘TAR’ will become part of their lexicon
even if they are unsure of their meaning. ‘We’re gonna need TAR, baby’ says a
male child-of-the-70s partner to his assistant as they contemplate a big
discovery exercise. Within minutes, Amazon will send a steaming truck of
boiling road-surfacing material, Facebook will offer a biography of John Loudon
McAdam, Alexa will start playing ‘A British Tar’ from HMS Pinafore, and Siri
will explain that ‘tar-baby has become shorthand for a situation better avoided
than confronted’ thanks to the Uncle Remus stories.

As always, new developments will make lawyers willing to consider the
last development-but-one. As artificial intelligence spreads, lawyers will
consider technology-assisted review. As a new discovery rule emerges, lawyers
will start reading the existing rules. As more evidence emerges from smart
devices, social media and the Internet of Things, lawyers will begin to take
email seriously. As courts stand empty, with no judges to hear cases,
telephones ringing in empty offices, and queues of lawyers at the doors, the
MoJ will claim that its reforms have successfully tackled the problem of court

Chris Dale of the eDisclosure Information Project Ltd is a leading
commentator on ediclosure/ediscovery issues and related topics: see and @chrisdaleoxford