Predictions 2017 – Chris Dale

December 22, 2016

Anyone who made predictions for 2016 in the wider political sphere is looking a bit silly now. Near the beginning of the first Back to the Future film, Doc Brown in 1955 asks Marty who is President in 1985. “Ronald Reagan? The actor?” What would have seemed absurd in January is now accomplished fact – we are leaving the EU, Trump is to be President, and Liz Truss is Lord Chancellor and Secretary of State for Justice. All these things stretch our faith in our ability to predict any sane result.

Barrister Gordon Exall, author of the always excellent Civil Litigation Brief, asked lawyers what they would like for Christmas. I said I would like to wind the Civil Procedure Rules back 30 years, and start again with the benefit of the hindsight accumulated since then. The rule changes of 1999 seemed radical at the time, but if instead of asking “How can we improve the rules?” we had asked “What do court users need from the civil justice system?”, I am pretty sure we would be in a rather different place now.

My subject, however, is prediction not remorse, not the counter-factual of different rules but the pending dystopia of Liz Truss’s justice system. Where will electronic disclosure, and its legal and business context, be by the end of 2017? As you read down it, see if you can identify the point where reasoned prediction turns into the snarling of a cynical old hack.

Organisations will take over ever more of the eDiscovery process by a mixture of in-house expertise and closer relationships with service providers, largely bypassing external lawyers for the mechanics of disclosure. An increasing number of barristers will recognise that disclosure is evidence, and evidence is their concern; they will develop expertise enabling them to bypass much of the solicitors’ role. The only law firms who will retain any significant eDisclosure expertise will be those who set up dedicated departments or companies to do it for themselves and, perhaps, for others. Solicitors will retain their place for strategic and tactical advice in disputes, but this will focus more on anticipating and making problems go away than in managing them through the courts.

For those bigger cases which stay in the court system, judges will start asking the lawyers why they have not proposed the use of analytical technology like predictive coding. The barristers will scratch their heads and turn to the solicitors who will stare back in wide-eyed bewilderment. The judge will then make an order which neither party wants or understands, based on an article half-read after a long evening at the Garrick. The winners (to be serious for a moment) will be those who can articulate a coherent case for using technology which takes account of the rules, of proportionality and of overall costs.

More judges will tire of being underpaid, under-resourced process-managers of a run-down justice system, as their dreams of sitting in intellectual state interpreting the law descend still further into case administration and litigants in person. As disputes become increasingly a private matter, case law and precedent will wither, adding yet more uncertainty for potential litigants.

The Ministry of Justice will roll out ever more ambitious and expensive IT systems to manage every aspect of cases. The specification will change constantly and the budget will go down; senior judges will be sent out, like Comical Ali in the last days of Saddam’s Iraq, to assure us that everything is fine. By the end of year, everyone involved in the specification and implementation of the new systems will have resigned or been shuffled off to some other department; ministers will withdraw funding, suppliers will sue, and no-one will remember what the original intention was.

G4S will start offering “Case Management Supervisors” to replace judges and the MoJ, unscarred by previous experience, will look only at the direct cost and lock themselves into long nationwide contracts. The government’s contempt of experts, indeed of anyone who knows what they are talking about (as exemplified by the appointment of Liz Truss as Lord Chancellor), will increasingly undermine the role of barristers in civil proceedings as they have done in criminal ones. By then, few litigants will have representation, and “justice” will consist of hordes of LiPs and McKenzie Friends whining and shouting at the retired security guards now sitting on the bench.

A property developer will make an offer for the Royal Courts of Justice, demolish them and replace them with vast office blocks. Long before they are finished, the intended occupants will be in post-Brexit offices in Frankfurt or Dublin, and the new offices will stand empty for a decade. Meanwhile, “Justice” will be delivered from three Nissen huts on an industrial estate in Hounslow.

Singapore Airlines and Emirates will start offering “Justice Specials” – an all-in price will take teams of clients, lawyers, witnesses etc to Singapore or Dubai for trials and hearings, with accommodation thrown in. There they will find that the judge is someone who used to sit in the Strand but who has decamped to a jurisdiction which takes justice seriously.

The Lord Chancellor, Liz Truss, mistaking the tone of the reaction to her scheme to see off drones with barking dogs, will come up with a plan by which cases are decided by dogs – one bark for the claimant, two barks for the defendant. The White Paper announcing the idea will be called “Ruff Justice” (HT @MrJohnBates and @BPTC_Lecturer for the name).

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