Bigger is the wrong road to Better – How to create bundles that judges will love
This week we’ve seen yet again what happens when a Judge gets upset over a court bundle – it is happening ever more frequently. Admittedly though, we’ve seen only one side of the argument (that has been included in the High Court judgement) which has delightfully been reported on. This will generate baying comments from some…. But the real debate is what’s the solution…
Reading the judgment, it struck me that there are a few points which seem to have been overlooked:
Bundle dilemma – Decision vs Production.
We all know that producing paper bundles is a time-consuming process, but within that process there are two separate components that need to be considered, the production of the bundle (photocopying, retrieving documents from electronic systems, pagination, index etc.) and the decision of the bundle (what documents it should contain, what order, key documents for argument).
Sadly, the production of the bundle takes up most of the time. In this hearing, the “claim was accompanied by six volumes comprising over 2,000 pages of largely irrelevant material.” This is also alternatively described as ‘forensic chaff’
Based on those numbers, our educated guess is that a paper bundle of that size would have taken at least a couple of days to prepare manually with a small team of paralegals completing the work.
In hindsight, it is easy to see that the bundle has had too much time spent on the production, rather than deciding on what should be included.
“Shortly before the hearing, the court ordered the production of a core bundle for the hearing not exceeding 250 pages. During the hearing, it was necessary to refer to only 5 or 6 pages outside that core bundle.”
Shortly before the hearing reads very much like the day before (or at least the same week) – so now the team who have produced the 2000 page bundle must now create a core bundle for the court too. Chances are in an everyday Court environment that this role isn’t given to the team but one person to work on, and it would probably take them the best part of a day.
Typically, those charged with such a role might now panicking to get the bundle to the Court on time and therefore have a finite amount of time to achieve their objective. On top of that they too may have to take a 2000-page bundle and reduce this to a few hundred pages, which is a difficult challenge at the best of times without factoring the time pressures on top.
Anyone who has spent any time producing a Court bundle knows that last minute bundles are the stuff of nightmare. Once again, the time taken to produce the bundle is severely impacting on the decision-making process of what should be contained within the bundle.
There are many additional comments from the Court that corroborate that bundle production was a priority over the ‘bundle decision’ process, including:
- The Claimant’s skeleton argument might be long, diffuse and often confused
- Typically, there’s a chance that it might also lack proper cross-referencing to those pages in the bundles which were being relied upon by the Claimant
- The skeleton they give may be of little help to the court.
So how can we reduce bundle production times?
The obvious answer is to not produce the court bundle in the first instance. Sadly, that doesn’t look like a viable option for the foreseeable future.
Increasingly, switched on law firms avoid this problem arising by skilful use of electronic document bundling software. This integrates with their existing case and management systems. With my own company’s system Zylpha court bundling software often saves over 80% of a practices time when compared to preparing manual paper based bundles.
Based on our own research, we estimated that the time taken to create the 2000-page bundle was two days which when scaled up against the likely possibility of having four paralegals working on the bundle equates to 8 days. Using Zylpha Court bundling it would have taken less than half a day to produce the bundle INCLUDING the request for the core bundle.
In our experience, working with our clients we know that by reducing the time spent on producing the bundle, the team can better spend their time on deciding what to be included in the bundle, and the best way to present the information or as The High Court in their judgement commented “It is the responsibility of the parties to help the Court to understand in an efficient manner those issues which truly need to be decided and the precise points upon which each such issue turns.”
So, if there are any practices working on huge bundles and worrying what the judge will say ….give us a call…