IS THE DIGITAL CITY THE NEW REBEL CITY?

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Written by Sammy Nanneh and Charles Feeny

A great deal of light has recently been shed on the advent of technology in our legal system. Moore’s law, that the number of transistors on integrated circuits doubles about every two years, has long buttressed society’s technological revolution. It has meant exponential growth in the technological sector, with no end in sight.

With this in mind, this article will seek to briefly analyse the potential impact of properly harnessing the power of future technology into our old and traditional legal system. This will be done in three short parts. Part one will explain the notion of a ‘rebel city’ and why our – at times archaic – provision of legal services could do with an overhaul. Part two will seek to present the technological revolution as the key pathway for this overhaul. Part three will look specifically at the potential for our legal system to take a leading role in the wider technological revolution and the rise of the ‘digital city’.

Part one – Defining the ‘rebel city’

What is a ‘rebel city’? One of the primary elements of the Enlightenment that dominated the world of ideas in Europe in the 18th Century was the rise of the ‘public sphere’. At the core of this was a realm of communication, marked by new arenas of debate, more open and accessible forms of urban public space and an explosion of print culture. Secrecy and the concealment of ideas was, in theory at least, the gravest of sins. Cities, brimming with the very people that harboured these ideas, became the conduit through which social progress could be pursued. But this soon came under the attack and exploitation of a capitalist system based on endless profit, infinite consumption and sprawling urban growth no matter what the social, environmental or political consequences.

Against this backdrop, the notion of what David Harvey refers to as a ‘rebel city’ can be explained. It is only through the city itself, from the bottom-up, that we may return to the glory days of our cities as the home of diverse collectivism, innovation and free thought. This requires a broader, revolutionary movement in our rebel city.

In what sort of format has the capitalist hijacking reared its head? One example is through the creation of exclusionary urban spaces to which the commons lack access. It is not hard to conjure up the image of gated communities, or glass towers, to which only a privileged few may access the expensive delights within. The window cleaner is left to ogle from without. To tackle this, the social practice of ‘commoning’ can be undertaken . At the heart of this is that the relation between the social group and that aspect of the environment being treated as common shall be collectivised and less commodified. One may see this as a partial reversion to a previous age, proud to have based itself firmly in the democratic delight of intellectual collectivism.

If exclusionary practices continue, then those who promote diversity, efficiency and openness in society will lose out to the predatory practices of upper class consumers. Such consumers may lack any social imagination and find themselves unknowingly constrained by the bureaucratic chains of history, paying higher costs for less valuable end products. Worrying indeed. In light of this, the ‘rebel city’ and the right to reclaim it must be construed as a right to rebuild and recreate the city as a socialist body politic in a completely different image. One facet of this rebuilding is to put the power back into the hands of the common consumer. In the legal world, the best way to achieve this is through a rebel city taking a 21st Century form. We shall call this the ‘digital city’.

Part 2 – Rebel cities as digital cities

Our rebel city is a digital one. New technologies continue to usher in a revolutionary conquest against the traditional and ever more dated lifeblood of our economy. Until recently, this lifeblood took the form of face-to-face interaction with clients, long nights spent spilling ink on paper and a pressing need to have drawers fully stocked with first-class stamps. The traditional rigid and time-consuming mechanisms of our economy (particularly in the services industry) and the status quo of the players within it, be they big or small, face an immense upheaval. This upheaval takes the form of technological advances oozing in potential for efficiency, cost-saving and innovation. The relevant players in their respective industries will at this moment face a choice. To entrench their positions, resting on their laurels and hoping the revolution will not result in a coup, or to embrace the opportunity for a fundamental reconceptualisation of the industry they are in.

This revolution is being conducted through the use of widely accessible products such as kindles and smartphones, devices spurred on by the ammo of unlimited internet connectivity. Even noises and sounds are not safe from the threat of extinction. The youthful newcomers reading this, (those best equipped to embrace and enjoy the technological revolution) will hardly remember the noise that once escaped a struggling dial-up modem. Faced with such a revolution, a modern economy based firmly on the principles of endless profit and consumption, is scrambling to adjust. No sector is immune.

One need only look to our Baltic neighbours to see the mind-boggling potential of a digital city. In Estonia, the birthplace of Skype, a technological revolution is being conducted by the gradual creation of a ‘digital sovereign’. Estonia has taken ground-breaking steps to put its entire state online. In 2011, 97% of tax returns were made online. Voting is conducted online, and laws are signed into effect with a digital signature. Cabinet meetings are paperless. For €50 anyone can become an e-resident of Estonia and take advantage of the simplified, infrastructure of a state that exists online. In an extreme scenario, imagine the state was invaded and annexed. The state in its original form could be put on a memory stick and simply booted up from anywhere in the world.

Part 3 – The ‘legal digital city’

The potential for an entire country’s infrastructure to be digitalised poses a strong indication of where the future of the law could be heading, a ‘legal digital city’. But do not take my word for it, Lord Justice Ryder as recently as last week has urged for a web-based expansion of justice and the rationalisation of the judiciary. He has called for the replacement of the ‘post-Victorian superstructure’ of courts and tribunals with a modern, paperless system. This would be based on online access and a streamlined judiciary in order to realise the values embodied in the Magna Carta (enjoying its 800th birthday) and to increase access to justice.

But it is not only the courts and tribunals that will eventually reek of archaism. It is not a mere dream to imagine a world in which one day the glass towers of our cities will be replaced with a digital city. The legal sector, long plagued by the issue of excessive costs and bureaucracy, could yet lead the way in this revolutionary endeavour.

As Harvey puts it, ‘the question of what kind of city we want cannot be divorced from the question of what kind of people we want to be, what kinds of social relations we seek and what style of life we desire. It is a collective rather than an individual right, since reinventing the city inevitably depends upon the exercise of a collective power over the processes of urbanisation’.

It is in that context that Lord Justice Ryder’s assertion that the very realisation of fundamental aspects of the Rule of Law depends on a comprehensive embrace of the digital revolution by the legal sector. The legal world has an immeasurably valuable opportunity to take the lead in representing the cutting-edge progressiveness of society’s digital revolution. The boost to self-employment and the innovation, cost-saving and diversity associated with it, means that it is in no uncertain terms that it can be stated that the ultimate rebel city in the legal world of the 21st century is a digital one.

“Cities are never random. No matter how chaotic they might seem, everything about them grows out of a need to solve a problem. In fact, a city is nothing more than a solution to a problem, that in turn creates more problems that need more solutions, until towers rise, roads widen, bridges are built, and millions of people are caught up in a mad race to feed the problem-solving, problem-creating frenzy”

McGEER v MACINTOSH: PAVING A SAFER WAY FOR CYCLISTS?

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Read on for Charles Feeny’s explanation on the case of McGeer v Macintosh in his latest note, “Paving a Safer Way for Cyclists?” on our Pro-VIDE site. This case involved a cyclist who undertook a stationary car at traffic lights and then cycled to the nearside of an HGV which was indicating to turn left. Mr. Feeny acted as the Claimant’s counsel on this case. You can also download an official copy of the final judgment on McGeer here.

Bright White Line Law: the follow on…

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Thank you for attending our symposium last Wednesday. The event was a great success (despite the weather) and provided an opportunity to really get to grips with a difficult area of the law. Thank you to those who participated on the panel and gave such interesting talks. For my part, I feel that the difference in award of damages is an under analysed area and given the current cost of clinical negligence one that needs discussing. My opinions on the decision and applicability of Bailey v MoD are no great secret but there is an interesting point as to whether the current interpretation of material contribution to damage can be applied in Popple.

Finally, I believe that the difference in opinion between the clinicians and the court is worth highlighting. In time pressured medicine is the court too focused on artificial timings and are the best efforts of doctors being unreasonably categorised as negligent where there is simply no explanation?

Please contribute further to this discussion.

The Shed: The First Six Months

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When I announced at the beginning of this year that I was going to practise from my shed, it created some surprise, in particular amongst those credulous enough to believe it.

So how has it gone? Well, overall I feel quite liberated and close to nature. There have been some downsides, in particular a few spats with the gardener when I got in his way as he has tried to remove tools. Also I have had some terse emails from members of the Bar who do actually work from their shed and thought that I was mocking them.

As many have now realised, “the shed” was essentially a metaphor for the remote and flexible way of working now possible in the digital age.

So how has the metaphorical shed gone? From a personal perspective, I feel quite liberated but not necessarily close to nature (actually, I generally work indoors).IMG_0328

Having spent many years working in traditional Chambers in traditional buildings, it never really occurred to me that this was in some way psychologically inhibiting. Shed working, even at the metaphorical level, is much less routine or structure driven and I have the feeling that within reasonable limits, I can do what I want, when I want and how I want.

When Barristers ask me about Complete Counsel, their initial impression is that it is a virtual Chambers or an alternative Chambers. However, it is not a Chambers at all; it is a different way of supporting a Barrister’s practice.

We are developing parallel digital brands. I think of parallel brands rather like the Gremlins in the Spielberg film. Once you have one, it seems you can multiply them very quickly.

Complete Counsel was set up as a sister business to Document Direct. Once Complete Counsel was established, it became possible at really minimal cost to develop parallel brands. We have now launched Complete Mediation. We are in the process of developing two further parallel brands; one focusing on HR and Employment and another more generally on litigation.

Whilst the terms synergy and strategy are vogue expressions now widely used with scant regard for their meaning, they can be used to describe the development of parallel brands which could be considered to be either strategically synergistic or possibly synergistically strategic. Each brand will create opportunities and contact which can be fed through to the other brands. Digitalisation and deregulation are changing the market for legal services beyond recognition. It is apparent that there are those who are seeking to adapt existing structures and practice to these challenges, but others who realise that in reality, they have to operate in a different way. The latter group appear to have a much more positive attitude and understand the real opportunities being presented. It is conspicuous that we are able to form informal alliances with similar minded individuals and practices to our mutual advantage. These alliances carry with them none of the psychological baggage of a Practice or Chambers, or even require formal agreement.

So perhaps the thought of an inevitable improvement in the weather and a summer in the shed is making me too sanguine.IMG_0338

The town shed has amazing views.

A final thought. The modern Bar emerged from the 18th Century, that is from the date Barristers rode behind the Judge and his retinue literally on a circuit. The individuals who followed this way of life inevitably had to be robust and independent. They had to take what work they could find. The Defendants were often illiterate and incapable of giving meaningful instructions. Capital punishment was the usual outcome. The Judges of those days did not have the benefit of a Judicial College to advise them of appropriate behaviour in court. The tradition of a robust and independent Bar was forged by these early Barristers. A Barrister in reality needed only one essential item, that is a horse. Now, a Barrister only needs one essential item, that is a laptop. So perhaps the changes now afoot will act as a backdrop to the recrudescence of a robust and independent Bar.

IEG v Zurich: Insurance Law for the Digital Age?

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The rules for the division of a prize, that is a captured Vessel in 18th Century Maritime custom, were elaborate and precise. In Patrick O’Brian’s, “Master and Commander”, Captain Jack Aubrey contemplates his share of the prize, the Danish ship, “DORTHE ENGELBRECHTSDATTER”, as follows:

“As he let himself sink on to the long cushioned locker, he found that he was in the act of saying “Carry Three” for his mind was busy working out three eighths of £3,500 – it had now fixed upon the sum as the worth of the “DORTHE ENGELBRECHTSDATTER. For three-eighths (less one of them for the Admiral) was to be his share of the proceeds. Nor was his the only mind to be busy with figures, by any means, for every other man on the Sophie’s books was entitled to share – Dillon and the Master, an eighth between them; the surgeon (if Sophie had officially borne one on her books) bosun, carpenter and master’s mates, another eighth, then the midshipmen, the inferior warrant officers and the marine sergeant another eighth, while the rest of the ship’s company shared the remaining quarter. And it was wonderful to see how briskly minds not given to abstract thought rattled these figures, these symbols, up and down, coming out with the acting yeoman of the sheets’ share correct to the nearest farthing.”

Unfortunately for Jack Aubrey and his crew, all these calculations were pointless as the crew of the Danish ship who had been assumed to have been killed by Corsair pirates were found in a secret hiding place within the Vessel, which then was no longer deemed a prize.

Such precise calculations and customs were common in the 18th Century at the time when insurance law began to emerge in its present form. It is instructive to consider what a different commercial world existed in the 18th Century when business was conducted through arcane ledgers, when communication beyond the immediate face to face was difficult, often impossible, and when the opportunities for real wealth were so infrequent and slight, that great precision was required when it arose. This is to be contrasted with the emerging digital age, where process is seamless through software, when communication is instant and worldwide, and there are seemingly limitless business opportunities.

Reading the speeches of the Supreme Court in IEG v Zurich, it is striking how all the justices attempt to fit what can be perceived as an obviously fair and reasonable solution into the historic rubric of insurance law, even though such law developed in very different times and commercial practices.

The advantages of the digital age will only be fully exploited if it is understood that digital process is not a means of supporting a traditional approach, but rather a different approach in itself reflecting the need for much greater speed and flexibility in the exchange of information.

An obvious problem emerged in insurance law when the creation of the Fairchild exception in mesothelioma claims created a situation in which policies underwritten for single events such as accidents had to be interpreted in the context of liability reflecting the risk of an event occurring, as opposed to causation proved on a traditional basis. The Fairchild exception created rights to indemnity under policies underwritten successively and the same would not have been contemplated at the time that the policies were incepted. In Phillips v Gunner Limited [2003] EWHC 1084 (Comm), I attempted a simple argument that if indemnity was working in a way not anticipated at the time that the policies were underwritten, it would be reasonable if the concept of double insurance was modified so as to reflect this situation . In particular, the historic application of double insurance only to policies underwritten at the same moment in time should be modified. This argument, however, was met with a rigid and conservative approach and the principle of double insurance remains as originally cast. A decade of insurance litigation has followed since Phillips and it is reasonable to reflect on how much of this might have been avoided had a simple and pragmatic approach been taken at the outset. It is interesting to see in the Supreme Court speeches, reference to the Australian approach which has been more liberal. Australia is a younger country and has a noticeable judicial creativity which appears to produce more reasonable and contemporary results.

Whilst traditional insurance law no doubt has an intellectual fascination for those who engage in it, those who need to use such law in their commercial transactions are increasingly likely to want an approach that is comprehensible, leading to swift and reasonable resolution of disputes.

The Complete Counsel ruse

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Claire and I have spent some time in the past few weeks talking to clients and organisations in the market. We are very grateful to those who spared their time and been prepared to offer their advice.

The practice development service offered by Complete Counsel is intended to give Barristers the best opportunity to maintain and develop their practice in a challenging market. Understanding the needs and expectations of clients and suppliers is clearly vital if this service is to be valuable.

What has been striking is how similar the views are of those we have spoken to. First, in terms of their perception that the Bar is still wedded to a very traditional model and therefore the working processes and standards that fit with such a model.

Secondly, and by way of contrast, there is a clear consensus as to what the customers, or in many cases, potential customers of the Bar really want.

Reflecting on this, and in the best traditions of management speak, the acronym of RUSE emerges, that is,

Responsiveness

This means responding quickly, appropriately and fully.

Understanding clients’ needs

Responsiveness is clearly part of this, but Barristers also need to understand the financial and time pressures on their clients. Barristers who insist on formality of instruction and billing for every small item of advice are not understanding the needs of their clients.

Specialisation

Sophisticated law firms now have the capacity to conduct litigation without any obvious need for the services of the Bar. If Barristers are going to be instructed, then they have to be perceived as offering something more in terms of detailed knowledge, specialised advice and above all, advocacy skills.

Extra value

This obviously includes education, training and informal support, in particular for junior lawyers. Astute Barristers will assist their clients with networking and client contact.

These principles may seem basic and as predating the emergence of the digital economy. However, the new and developing working practices based on IT can be seen in the specific application of these principles in terms of responsiveness, informality and wide networking. The inevitability is that Barristers who will succeed in this market must be more prepared to step into the frontline and not hide behind a clerking process.

The digital city and mass labour

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There is no doubt that mass labour is a phenomenon associated with industrialisation but what is its relevance, if any, in the digital city? You will recall in the last post I spoke of the digital city resembling an ancient Greek agora on a global scale, the question now is how will this new found city impact on employment trends?

Wordsworth may have aptly described Jerusalem being built among these dark satanic mills but the description stopped there. Many of us have seen the images of these mills calling to workers through the laborious ringing of the bell; a sight which gave new meaning to John Donne’s infamous line ‘never send to know for who the bell tolls; it tolls for thee’. The tolling of the bells gave rise to the need of a mass workforce. In contrast to the agora, the majority of people met not for intellectual or social gain but for employment.

How is the digital city changing this notion? The answer lies in remote working. Remote working has fundamentally changed the landscape of employment in the western world. It is no longer necessary for many workers to travel to a physical building in order to complete their necessary responsibilities. Keeping with the tradition of the bar, a barrister is no longer shackled by the necessity of chambers. Briefs can be sent electronically and the majority of legal resources are now online meaning that work can be done with greater efficiency from a remote location. Office space is not the first item of a list of chambers’ necessities.

While many businesses will continue to utilise office space the precise function will no doubt change with people attending the physical city based upon desire. What that desire is is hard to say given the endless possibilities. As part of this people are likely to attend for intellectual or culture reasons rather than simply because they heard the bell toll.

The 21st century agora

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When one thinks of the digital city it is not likely that they will stop to reflect upon comparisons with ancient Greece. Much academic ink has been spilt on the role the internet plays in modern life and it is fair to say that, notwithstanding the comparably short life of the world wide web, the subject is catching up upon its ancient rivals.

Many of the great Greek philosophers, especially Plato and Aristotle, presented their ideas to those assembled in the agora. It is a common misconception that the lexicon ‘agora’ referred to a market place in the modern sense of the term. The agora, as it was know to both Plato and Aristotle, was so much more: it was the primary meeting place for free-born male citizens to discuss matters associated with their city. It was from these locations that much of the thinking we take for granted originated. When Odysseus sailed home from Troy he did so using the stars and planets as a means of navigating yet it was at the agora that their importance was first discussed by the Greeks. Much of what was discussed is still used today with the word ‘planet’ come from the Greek planētēs meaning ‘wanderer’ and ‘agoraphobia’ deriving directly from agora itself.

What, you may still be thinking, does this have to do with the internet? The internet is rapidly become one of the most important means of exchanging and debating ideas. A clarification should be made at this point at to what is meant by the exchange of ideas: it is not the visceral hatred that comes from so many sources and is colloquially called ‘trolling’. There has always been those seeking to impress their hate on others and the internet has allowed this on a truly global scale. Ideas here is, suffice it to say, what normal right minded individuals would take it to be. It is through these exchanges of ideas that the modern digital city has been born and that city better reflects the agora rather than the vast metropolises (derived from the Greek mētrópolis meaning mother state or city, equivalent to mētro-, combining form of mḗtēr mother + pólis -polis) which came into being in Western Europe with the advent of indusrialisation.

The bar has always gathered to exchange ideas and debate legal issues. Professor Sir John Baker has done extraordinary work is highlighting the progression of legal education from the time of the Conquest up until the 1700s. The principal method has by en large been through discussion and mock trials at the Serjeants’ Inns, followed by the Inns of Court. Although debates still take place at the Inns universities have largely taken over the education of lawyers including those practising. Even in the modern age the primary basis of education has not changed but the means of facilitating these have. The increasing provision of online legal education has facilitated the start of the online city. This city is focused on training and education; people are meeting to exchange ideas but now on a global scale. This transformation has resulted in the move back to the agora but now the agora extents beyond physical constraints.

Complete Counsel: shedding the unnecessary

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From 5 January 2015, I will continue my practice as a Barrister, with support from Complete Counsel.

shed

Complete Counsel is an innovative project which will operate as a sister company to Document Direct.  It is anticipated that instructions through Complete Counsel will be electronic via a portal.  At a high level, the operation of PA support will be overseen by a Practice and Business Development Manager, who will supervise the day to day functioning and undertake a troubleshooting role.  The Practice and Business Development Manager will also take responsibility for client care and contact and be receptive to the reporting of any problems or suggestion as to how the service can be improved.

The clear objective of this approach is to provide a form of practice management which could be considered more efficient and appropriate in a rapidly changing market for legal services.  Whilst the traditional Chambers model will no doubt continue to satisfy many Barristers, as Lord Judge commented recently in Counsel magazine, it is vital that the Bar is prepared to consider and embrace new ways of working if the Bar is to maintain its traditional virtues of independence and quality.  There is no necessary correlation between the traditional structures and the traditional virtues; in fact the converse could be more easily argued.  The word “Chambers” refers only to a building and from that the traditional model reflects a building with the support, and staff structures, that go within a building.  The great opportunity for individuals in the digital age is that they do not need to encumber themselves with the expense necessary to maintain the traditional models.  The digital model with its much lower base costs creates opportunities for more expenditure in areas which really bring quality and allows much greater scope for independence.

Since I gave notice of my intention to work in this way, I have become aware of many rumours circulating of my likely approach to practise.  Whilst the repetition of such rumours rapidly becoming factual statements is one of the traditions of the Bar, I feel I have to disabuse any of you who have chosen to believe the following: First, that I am easing off, downsizing, semi-retiring etc.  Whilst I have to admit to having attained a reasonable age, Mr Osborne has it in mind that I should work for many years to come.  I am very happy to go along with him on this issue at least.  I am enjoying my work more than ever.  I cannot imagine anything better than being a Barrister.  I believe that you can only properly practise the Bar if you do so with energy and passion.  If I ever felt I was losing that energy and passion, I would not ease off or anything like, but out of respect to myself and others, stop completely.  I therefore intend to practise for the foreseeable future, to at least the same level and with the same standards I have tried to display throughout my career.  If you were in any doubt about this, you should know that Claire Labio has agreed to work as the Practice and Business Development Manager of Complete Counsel and I am sure I will be made rapidly aware of a slipping in my standards or approach.

Second, that I am practising from my garden shed.  There are a number of reasons why this is not the case, not least because there is no heat, light or electricity in the garden shed.  It is true that I, like many Barristers, probably a clear majority, now work increasingly remotely, in particular from my study at home.  However, in practical terms given the use of IT, there is no difference between working in a room in Chambers or in a study at home.  The Complete Counsel model, I think, best suits the working life of a specialist civil counsel such as myself, where a significant amount of work relates to document production, where I am capable of working largely remotely, and where my conference and court work is peripatetic.

Thirdly, that this is a cost-cutting exercise.  It is true that the basic support service at Complete Counsel operates at a fraction of the cost of being a member of a traditional chambers.  However, it is not my intention that my overall level of expenditure shall reduce.  Rather I intend to deploy more resource into areas which will transmit better value to my clients.  I will continue to employ a paralegal, for support, in particular, in relation to research.  The services of a paralegal are not charged directly to clients, but are subsumed within my own fees.  I will continue to provide education and training, in particular by participating in the web-based project Pro-VIDE Law.  I intend to develop and extend my activities in these respects.

It is also planned that Complete Counsel will involve a parallel project, Complete Mediation, whereby mediation services will be offered, in particular in relation to clinical negligence.  The move towards mediation is inevitable and we intend to offer access to skilled mediators with vast experience of litigation.

This is therefore a new approach, but clearly necessary in this challenging and fast developing market for legal services.  The project will have to be considered experimental in its first few months and I would encourage all those who instruct through Complete Counsel to offer such help and advice as they feel appropriate.  There is nothing that we do not want to hear.  The service will initially be most suited to civil barristers in the North West of England.  If you are interested, or would like to know more, please email on charles.feeny@completecounsel.co.uk.