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An interview with Mr Justice Birss: part 3/3: crystal-ball gazing

I was delighted to have the chance to put a few questions to Sir Colin Birss, judge of the High Court Chancery Division and nominated judge of the Patents Court.

In part 1 of my interview with Sir Colin, he talked about his career and interests. In part 2, he gave some perspectives on current developments in litigation procedure, notably highlighting potential benefits of the Shorter and Flexible Trials Pilot Schemes operating in the Rolls Building courts until 30 September 2017. Finally, in part 3, Sir Colin considers what the future might hold for civil litigation in England and Wales.

What do you consider to be the main challenges facing English civil justice and court users currently? Are there other separate areas of reform that you anticipate in the longer term?

Obviously Briggs LJ’s report is a hugely important piece of work, looking at the future of various things, including the proposal for an online court. There is not much point in me repeating what Briggs LJ has said.

A challenge is always the cost and time that litigation takes – finding the amount of cost and time appropriate for the piece of litigation. There are cases that appropriately take a lot of lawyer time and require a lot of time in court – either because they are worth a lot of money or have importance for society regardless of financial value – which justify significant public resources being devoted to them.

Equally, we need to be more clever about how resources are used. Many major commercial disputes could be resolved fairly without enormous cost and time. An example is a case which is nearly but not quite suitable for summary judgment. It needs some oral evidence and disclosure but not much. The pilot schemes can do that.

Also, we need to provide access to justice – this comes back to the whole Patents County Court (PCC) thing – for the smaller (not necessarily small) businesses. My impression (for business law generally, not just IP) is that the cohort of business which is not as well served by our legal system as it could, or should, be is the middle-sized companies. The big big organisations can look after themselves. And the very small organisations often can actually, with things like small claims.

The entities that this kind of system seems to have helped are the medium-sized companies. There are a lot of those, and you don’t see them much.

Are you confident that “ordinary people” will still be able to access the courts to resolve civil disputes in, say, five years time?

It is a difficult question to answer. Of course, to the extent that ordinary people can, or wish to, then I hope so, at least as much as they can now. The online court ought to make it possible for litigants in person to access the courts, hopefully in a better way than they can now.

In terms of the online court, I think that there is a difference between the younger end of society (who are comfortable with the online world and, I suspect, will find it intuitive anyway) and a significant chunk of our society – some people beyond a certain age – who are not as familiar with the online world but are just as much entitled to justice as anyone else; they may need some help but, as long as it is done right, the end result will be an improvement.

I am conscious of my background though. My background is that I am an IP lawyer and my perspective is very much from a commercial background. I can’t pretend to be someone who has great familiarity with criminal law, family law or small scale civil law. It is not where I “come from”, so I would prefer not to pontificate about it.

Do you see new, alternative career paths opening up for lawyers?

Part of being a lawyer is helping your clients. The help that someone might need in the online court is possibly slightly different from the help they might need in the courtroom, so I can imagine that. Beyond that, I don’t know – it is hard to say.

What about career project management litigators, whose skills are very much mapping out the processes and so on…?

Actually, that is something I have wondered too. Partly with my background in IT, which is a project management-oriented world, when I started I remember it striking me then that court cases are essentially projects but they were not managed in the way projects are managed, and there is probably something to learn there. I was surprised. It seems to be happening slowly now – that thinking is starting to come in.

Will lawyers be replaced by litigation software solutions?

There are things that computers can do nowadays which do replace some “white collar” jobs that lawyers used to do – it might not have quite happened yet but it is definitely on the horizon.

My impression – much more broadly – for example, thinking about what Richard Susskind has written about IT and AI – is why can’t computers ask the client the right questions and then give them a view on the answer. I don’t see why not really.

But the actual practice of law involves a human perspective. What these systems won’t do is have the empathic side of being a lawyer, which is incredibly important. Any lawyer worth their salt knows that this is a human exercise, not a mechanical exercise.

I think it is the communication with the client part that I can’t really imagine going.

What would be your advice to litigators practising today? What are the key skills they need now to be successful?

I don’t know about whether now is any different than what it ever was.

I have always thought that the key thing that litigators need to learn to do is to go into the detail but not get lost in it. That is the trick if you like.

The people who are good are not the people who skate over the surface, but the people who actually do the work and get into the details but, equally, having the ability to zoom in, they can then zoom out again, and stay focused. That is the skill.

So you need to see the wood for the trees?

Yes but, extending the metaphor, you also have to look at the trees.

In court sometimes, listening to people, you get the impression that they are just at the wood level and they haven’t worked out what is inside there at all. That’s no good, as the dangers are probably lurking in the trees somewhere!

Many lawyers – me included – have a similar memory, when they were starting out, of going to see some grand old wise litigator who seems to have this extraordinary ability to take an enormous fat bundle of papers, tap it magically like a magician, open it at some apparently random page in the middle and tell you that that is the document that matters. They all did it, and you would think that they were like a wizard. And they would turn out to be right. And you would think, “How did they know that this document, which is just one of 500 documents, was the key one?”. And it turns out to be the one document the case turns on. Grown up barristers do that, experienced solicitors do it, and you find yourself doing it when you have been at it for long enough. And it is that skill.

Just not opening the bundle at all is no good – you can’t do that!

Well that is quite encouraging – there is still room for the old traditional skills?!

Yes – I think there is. That is what it is about – knowing the case.

What would you say to anyone considering a career in law?

I think it is a great career, but you have got to watch the numbers these days – I mean the recruitment numbers. I speak to students, and there seem to be far more people applying for training contracts and pupillages, so that “numbers issue” seems difficult.
Law is a really good career to do, it is worthwhile, and important to society – it really is. That is what I like – trying to do something worthwhile. But it is increasingly hard to get in.

Courts and Tribunals Judiciary Practical Law Dispute Resolution Beverley Barton Mr Justice Birss

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