Less Madness, More Method

It is almost trite to say that you don’t computerise a mess, it simply makes it happen faster. The problem is the legal system, particularly litigation; and it is something we are stuck with, though changes are afoot. 

A leading Australian judge has recently sounded the death knell for the traditional system for litigating civil disputes and urged the legal profession to abandon it.

“There is no point in tinkering with the present system and its problems. It is time for a fresh start.”

US-based e-discovery guru, Ralph Losey has long advocated that the system is broken, and that most litigators are not up to the task of dealing with evidence in this electronic age.

The legal IT industry has responded by making huge investments and considerable progress in analysing the information mountains that face the modern litigator. Sizeable industries revolve around the need to review, too often, millions of documents. And although, it is possible, with the right IT and sufficient staffing resources, some believe it shouldn’t be necessary. The problem is that those mountains could/should be closer to the tiny molehills actually needed in most hearings.

Unfortunately, most lawyers seem too enmeshed in the problem to see any alternative. For too long “The Law” has been cloaked in mystery; a craft thought beyond the discipline of systematisation. I recall the IT partner at a leading Australian firm confiding in an audience of like minded colleagues how frustrating it was that while every partner thought most other areas of law could be systematised in part, it certainly didn’t apply to their area of practice.

Admittedly, it was before the GFC, and the rise of greater client-choice over the last couple of years. Project management is the current buzzword for larger matters, while process automation and workflow abound for more routine work.

While lawyers will not be abandoning current litigation processes immediately, clients might lead the way. The imminent coming into force of the requirement that the parties take “genuine/reasonable steps” to narrow the issues prior to commencing proceedings in Australian Federal and some State jurisdictions might be a tipping point. Together with society’s growing displeasure with current practices has led to an environment ideal for a system such as the to take off. The Method involves a structured listing of the issues, and forces the parties to confront each other head on, as this US judge sought: 

If I could get your argument outlined, and then make the other side respond to it as outlined, and then have some facility to compare the two, I could actually force lawyers to do what they hate to do, which is to directly confront one another’s arguments.

The best thing about the Enright Method is its simplicity, as one GC for a large Australian internet company found when using it in a recent case:

I love it. It is elegant. I wanted to spoon feed (our) lawyer with the case outline for them to use as the screenplay for the hearing. The … method was incredibly useful for me to do this in an organised and efficient way. … (It was) particularly useful for making sure that we … were on the same page as our litigation team.
General Counsel for a large Australian Web company

I am a big fan of the Enright Method. It works well with my toolkit of a database and/or an outliner and visuals for presenting the results. 

The method is based on a simple and naturally occurring set of relationships. Elements of a legal rule define the types of fact to which the rule applies. Each legal element is a category of fact. When a fact in a case falls within that category it ‘satisfies’ the element. 

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Or stated more simply, Legal Element 1, is supported by Fact 1.1, which is supported by Evidence 1.1.1. And an additional Fact supporting Legal Element 1 would be Fact 1.2. When all elements are made out the plaintiff has established their case. 

Because this model is based on a simple set of relationships it is ideal for organising tasks related to litigation. These include taking a statement of facts from a witness, pleading a case, organising a case for trial and writing a judgment.

A systematic approach to litigation, and dedicated software can become a secret weapon in litigation, as indicated by a New York lawyer’s comment to me:

What it does is make me be honest and complete. To go through (an) analysis of an incoming or outgoing argument I can’t skip any steps or glide over anything. I can’t fool myself by inattentiveness or be fooled by a smooth argument that slides over an issue. It makes me articulate my arguments and then show why each of them is valid. And that means that my arguments can be very powerful and economically expressed and that I can get right to the point in taking on an adversary’s position because I know what’s weak in what (s)he has advanced. … (It) is like the scientific method. It keeps you honest. Despite yourself.

Interestingly, here is a lawyer referring to Scientific Method as it seems there has been too little attention given to Legal Method.