The Woolf Report contains much common sense. It rightly castigates the legal profession for its handling of disputes and identifies the outrageous cost of litigation as a serious problem. But it then proposes increased use of technology coupled with judicial case management as routes to improvement. This is wrong.
When I started out as a litigation lawyer almost 25 years ago, there were no such things in our business as electric typewriters, word processors, computers, photocopiers, faxes and email. Pleadings were kept short out of necessity. Trial bundles, even in the most complex of cases, rarely went beyond two volumes. Discovery was simple; you only ever asked for key documents since every page requested had to be copied manually.
Without technology, every step could be painstakingly slow, complex and hard work. The net result – litigation lawyers only took a step if it was essential.
In consequence, costs remained low, trials short and clients were much happier than seems to be the case today.
We now have fantastic technology. But do we use it wisely? Clearly not.
Word processing has led to unnecessarily lengthy pleadings. Fast, efficient photocopiers induce us to demand copies of every possible document on discovery and include almost all in the trial bundles.
Consequently, the conduct of litigation is out of control. Costs have become outrageous, timescales unacceptable, standards of behaviour have deteriorated, while the outcome largely remains a lottery. But improvement does not lie in resorting to yet greater technology, nor transferring case management to judges.
The problem and the solution lie elsewhere. Whether through greed, lack of training, lack of understanding of our clients' real needs or simple laziness and lack of thought, we fail those who come to us for help. All we ever see are problems, rarely practical and cost-effective solutions. We throw technology at problems, not our intelligence.
So what do we need to do? In short we must reappraise everything we do, why we do it, whether it is necessary or of benefit to the client, and whether it adds value to the process. We must learn to provide realistic estimates of the time, cost and resources required to accomplish the desired result and then manage the process so as to perform within budget and on time.
We must learn to charge for the value of what we do, not for the amount of effort and time we put into the process. Outsourcing, greater use of paralegals, eliminating many of the processes we at present indulge in – and which often take place only because we are too lazy or too blinkered to think of better and less time-consuming solutions – and confining our own time to those activities which genuinely need our expertise and experience, must become a natural way of life for us.
Better technology can and should play a major part in this process. But only when we have learned to use it wisely.
Stuart Benson heads business development at Dibb Lupton Broomhead. He will chair The Lawyer Litigation Management Process Conference on 27 September. Contact Steve Warshal on 0171 434 3711.