It seems like a lifetime ago that someone tweeted Sedley’s law of Documents at me, suggesting they needed re-writing for the age of the e-bundle. Oh how we laughed. In fact, that was only 5 days ago and I have mentally rewritten it with ink made of my own tears many times over.
Last weekend was a weekend of bundle hell. One dodgy bundle is usually manageable, but when they come at you like evil flocks of buses it becomes overwhelming pretty quickly. Last weekend was a bit of a perfect storm – a lot of late-ish briefs replacing a longstanding trial commitment that had come out, delivered in a variety of sub-optimal formats – and provided a useful reminder of just how much of a problem bad bundles can become. The impact of my weekend bundle-mare has spilled into this week. It has depleted my resilience and left me a wreck to the point where people are sending me ‘you alright hun?’ sort of DMs. I am now, but I wasn’t.
So, rather than whinge about it pointlessly, I’ve decided to try and explain why it matters, what the knock on effect can be for individuals and systemically, and how we might begin to tackle this problem for our collective benefit.
But I’ve got to do it quickly because all the bundle wrangling and general life events this week have left me on 5% battery (my brain, not my laptop).
Why do you put up with it?
When I grumbled on twitter about it some said ‘Well why don’t you just return the bundle and tell them to send you a proper one’? There are a number of reasons why that is neither an effective nor a helpful response to the problem.
But let me first identify the problem, at least as it appears in family law – from my perspective a children law practitioner (I don’t do financial remedy, where I suspect things may be somewhat different).
The problems in public law and private law are distinct, but overlapping.
Mostly this is not a problem – local authorities are the applicant and the majority of them do pretty good bundles these days – I’ve not really had a huge issue with care bundles for the whole of the summer – but it couldn’t last. Public law work was already moving in the direction of paperless before lockdown, so remote hearings have not required a significant change on the bundle front for those LAs who were already using document management systems to prepare e-bundles. Almost all of my care work since lockdown happens to have involved an applicant LA who were pretty good at bundling. So, bundle would arrive – often coming directly by safedrop from the LA legal department, with searchable pagination, and the electronic index already in place meaning you can navigate around it as soon as it arrives. It might not be fully OCR, but significant chunks of it will be because it is populated with documents that were digitally created in the first instance – and not every bundle / hearing / case will require full OCR functionality. There are problems with re-issued updated versions and having to make decisions about whether to stitch new documents into your existing marked up bundle or to ditch the marked up one and start again on the fresh one, but these are comparatively minor issues and not a problem with the bundle per se. These are workflow issues that I suspect we will get better at dealing with over time.
BUT. There are two problems, fortunately I think relatively rare these days :
Firstly, local authorities who prepare an e-bundle for the court, and for their own advocate, but who for some reason refuse to send it to the other advocates, requiring individual solicitors to construct a bundle (for themselves and / or counsel) themselves OR, more often, leaving them to just send everything on piecemeal to counsel and letting them sort it out.
I am very sympathetic to the pressures upon LA legal departments and the admin staff. BUT. Most LAs manage this and if your LA can’t work out how, ask your neighbouring LA. Hearings run better when all advocates have the papers and the same pagination. You are the Applicant and it’s your responsibility to make that happen. The cost is minimal if your admin is set up properly, the benefits in terms of the efficient administration of your case are significant. Hearings get adjourned and decisions get delayed when bundles are a disaster zone.
Secondly, there are it appears still a few Local Authority’s who just don’t prepare proper e-bundles even for the judge and their advocate. An e-bundle is NOT JUST A PAPER BUNDLE STUCK ON THE SCANNER AND MADE INTO A SINGLE PDF.
The last week has involved two bundles of over 700 pages each which are just a single pdf, with incomplete or partially handwritten numbering, and no electronic index. One of them was significantly out of date and was accompanied by a raft of individual documents that were missing from the main pdf. Reading an assortment of files in no particular order, not being able to easily navigate backwards and forwards from one part of the bundle to another to cross check something – significantly compromises an advocates’ ability to prepare, to get a sense of the shape of the case – and leads to a need to re-read documents which didn’t make sense the first time around because they were approached without vital contextual knowledge. It is an inefficient and ineffective way of prepping. It adds hours and hours to the task.
This is not me just being lazy. I do plan ahead. On Friday I anticipated spending maybe one of my two weekend days working, in order to be ready for the first couple of days of hearings this week, to be on top of all the case outlines and position statements I needed to have drafted, and all the advocates meetings I needed to attend. I was lucky that I started on Saturday with a view to having Sunday off : The combined effect of the bundle hell that was unleashed on me this weekend was that I needed BOTH Saturday and Sunday. I was left exhausted and still feeling I wasn’t on top of any of my cases in the way I would have liked.
When I wrote the first draft of this post on Sunday night I predicted that ‘By the end of this week I will be completely shattered because I’ve had no breather. I will be tending towards grumpy, I will be less creative, I might be less effective for my clients, though of course I hope not. In at least one of the cases I have been working on problems with identifying all documents and working out which way is up have made it extremely difficult to draft a document in time for a deadline – a document I need to produce for the benefit of the client and for the assistance of the judge.’
In fact, by only Tuesday (today) I was in a bit of a state of meltdown. And the reason I was in this state is because the pandemic, remote working, the general stress of not knowing whether the world will still be functioning at all by 2021 have all taken more out of us than perhaps we had at first realised. I took 3 weeks off in August, felt smug because I had learnt the lockdown lesson and had been looking after my wellbeing – but here I am a mere 6 weeks later and a bundle disaster has just done me in.
TMI you may think. But I don’t think so. If I am unexpectedly finding myself in this state as a result of such frustrating but familiar challenges, then so are others. Every added pressure uses up a little bit more of the resilience that was already at such unhealthily low levels before lockdown. Today it was me. But it isn’t just me, is it? I am you, if you are really honest. Tomorrow it might be your opponent. Hell, it might even be the judge.
Bundle nonsense is grinding – there is a special feeling in the pit of your stomach when you open a dropbox folder to see what that new brief looks like and see 99 soldiers in a row instead of a single neat bundle. The enforced time wasted on sorting it out creates ill feeling and resentment. It saps the kindness and resilience out of the people and the system. And in every care case where there is one lawyer doing this there are probably 2, 3 more doing the same, tearing their hair out in their home office on a Sunday, trying to get through the mountain of digital paper in time. This is time we don’t get back. It is time we don’t get paid for spending. We can’t take the vicarious trauma out of the job, but we can cut the bundle crap. So much of it is completely unnecessary.
What can we do about this?
Very little in the individual case. I can’t return the papers and say ‘It just won’t do!’ – firstly, because in my view I have a duty to my client to get on with it and do my best in the limited time between receipt of brief and hearing – there is insufficient time to be engaged in a standoff or negotiation without compromising the client’s interests. Secondly, what is my solicitor going to do about it? Most legal aid firms are barely keeping above water – their margins are barely there, their staff were overworked before lockdown and are even more so now, and many of them have furloughed or laid off admin staff. It isn’t their responsibility to sort out a proper bundle in a care case (or it shouldn’t be). It is ridiculous to expect three firms of solicitors to manually prepare a bundle when the LA is already tasked with doing so because it has to prepare the bundle for the judge. And funnily enough I don’t feel massively inclined to sabotage my income stream by venting at my solicitor when it’s not really a problem of their making and its not something they can do much about.
I acknowledge that LAs too are under huge pressure – both financially and in terms of the lawyers and admin staff who work for them. I know that the burden of being responsible for multiple bundles in care cases is not insignficant, that it is on a scale greater than in private law, and that it requires a more sophisticated set up and some investment – but doing it well makes so much difference. And we know it can be done because see it done by many. ‘Not our problem’ really won’t do. It has to be done, because bad bundles have ripple effects.
BUT. There is a way forward. And in fact it comes as a direct result of lockdown. Remember that guidance we all moaned about?
20. The parties must agree, and the lead party must prepare and send to the court an electronic bundle of documents (and if appropriate an agreed electronic bundle of authorities) for each remote hearing complying with paragraph 18 of the President’s Guidance entitled COVID 19: National Guidance for the Family Court. The electronic bundle must be prepared with care by somebody with adequate knowledge of the case and the following requirements must be followed:
(a) PDF format is to be used;
(b) All documents are to be contained, if possible, within one single PDF file;
(c) The PDF file must be searchable. Hyperlinked indices should be avoided in favour of bookmarks;
(d) Pagination must be computer generated within the PDF, not hand-written:
(i) Original pagination must be by section and page number i.e. A1, A2, A3…. B1, B2, B3 etc;
(ii) Insertions, after compilation of the original bundles, should be using ‘legal’ numbering (e.g. B13.1, B13.2, B 13.3 to be inserted between B13 and B14);
(e) Each section of the bundle, and each individual document referenced in the index, should be separately bookmarked;
(f) Electronic bundles should contain only documents and authorities that are essential to the remote hearing.
21. The electronic bundle must be filed with the court on CE-file (if available) or sent to the court via a cloud-based link (e.g. ShareFile, iCloud, OneDrive, Dropbox or Google Drive) rather than in a series of emails. Delivery by USB stick should be avoided due to the risk of creating a pathway of infection and to protect the integrity of the court IT systems. The electronic bundle should be provided to all other representatives and parties within the timescales provided by the relevant Practice Direction.
22. Nothing in this Protocol limits the parties from agreeing, with the consent of the court, to use an e-bundle service from a commercial provider.
[bold my emphasis]
This is guidance gold. Use it. Put it in the draft order for the next hearing. Refer the LA to it. Draw the court’s attention to any non-compliance with it. Wave it around at the next tedious ‘breakfast club’ you go to (I am allergic to breakfast clubs). In particular, remember that little sentence at the end of para 21.
Might not help you on a Sunday night when you are banging your head on the desk, but we are turning a big ship here.
Also, what about private law?
The problems here are different and yet the same. Here though, individual firms are responsible for bundles dependent on who is the Applicant or first represented party.
In cases in their early stages or where there is limited complexity a rubbish bundle is not the end of the world – a ‘bundle’ for a FHDRA is little more than a 20 page application form (19 pages of which are entirely pointless), and a notice of hearing. Many hearings can be satisfactorily conducted without a proper bundle at all – there are but a few documents, and they can be opened in separate tabs and switched between as required.
In a case with a small bundle it is easy to knock up a quick index as you read. I do this regularly, and it isn’t a problem.
But in a chunky private law case – where there are multiple statements and replies to statements, and schedules and replies to schedules and counter schedules…and police disclosure, position statements, rafts of orders, social services case notes and s7 reports – well then it starts getting a bit hairy.
There are in my experience few problems in cases where the party responsible for the bundle is privately paying and has instructed a reasonably large firm who only does private client work. They are set up to sort bundles and they come in the correct format and on time.
But generally* smaller firms, even bigger firms who do legal aid work sometimes – just are either too overwhelmed to sort bundles or don’t seem to have the know how or resources to sort them. I think it is improving, but we’ve been doing enforced paperless working for over 6 months now and it is surprising how many bundles in private law cases are delivered chopped into four or five separate pdfs based on email max file size because the firm haven’t set up a safedrop type service, or which consists entirely of wonkily scanned in non OCR documents with no index (or quite often an automatically generated index which enumerates every page without identifying it and serves no purposes at all).
*(yes, it is a generalisation – sorry to those it doesn’t apply to, we love you muchly)
Of course its worth remembering that judge are dealing with many of these cases not only without lawyers to help, but also without bundles too. So perhaps we shouldn’t complain too much. On the other hand the last thing a judge who has wrestled with three LiP cases and no bundle really wants is to then be confronted with a pair of lawyers referring to a crappy bundle they can’t navigate. In my experience so far judges have been surprisingly obliging about such rank non-compliance – I suspect because they do not want to be seen as piling more pressure upon those who are already overworked. I am beginning to think however that this judicial magnanimity is shortsighted and overall is placing more pressure on more individuals and wasting more time than is justifiable.
It does matter. Private law work, particularly legal aid work – typically representing those complaining of domestic abuse or children – can be complex and time consuming to prepare, to cross reference. A proper bundle is really crucial. This work is also especially badly paid, so it is even more galling to have to waste hours and hours trying to navigate around documents that are in no apparent order and have no useful filename to help you. It is essential to the judge, and it is an essential tool for the lawyer who is trying to help the judge.
But again, what can we do?
For all the same reasons as with public law, there is little point in throwing a wobbly. If the person who sent you the brief had the capacity (whether that be the software, the know how or the time) do send you a shiny bundle they would have done it. There will inevitably not be time to send it back. That solicitor will be drowning every bit as much as you are – just as in care they have probably briefed you in the first place at least partly because they are drowning.
So again, I think we have to be as supportive as possible, but we can’t say nothing. We have to explain why this stuff matters, whilst somehow being constructive.
I am not always sure that solicitors appreciate how much harder our job is when the bundle is a mess, or how much that might impact on the client – counsel will be naturally disinclined to tell a solicitor such things. But the truth is that if I have spent two hours of the time I allocated to preparing my case for tomorrow rejigging pdfs and building an index and swearing at the screen – that is two hours less I have had to read in, digest the brief and papers, spot the things that nobody has yet identified, prepare my case outline – or maybe two hours less sleep – either way it doesn’t leave me in the best position possible to do a super job the next day. Bundle crap is a distraction. It stops the advocate a solicitor has chosen from being their best for the lay client. It might one day lead to a situation where the advocate misses something, where an adjournment is precipitated…
One thing I have done recently is to fix or add an index to a smallish bundle (I have to do it for myself anyway) and to send it back to my solicitor for service on the judge or other side, accompanied by a ‘no problem its really quick and easy to do’ sort of message. I hope this might be leading the way by example and a bit helpful too. I will happily talk any solicitor through how to do this basic stuff if it helps them – many of them are just feeling out of their depth and struggling for the time and space to teach themselves or find help.
I think I will probably also start gently reminding solicitors about para 20 of the protocol when I send in my attendance note, just so that they know that it might be a good idea to think about a compliant bundle next time around – or, if the other side is preparing the dodgy bundle, so that my solicitor can wave it (constructively ;-)) at their opposing solicitor.
What we need to be communicating to the partners or bigwigs in firms who control the purse string and sort the training is this :
- Proper e-bundles are mandatory. At some point adverse costs orders will be made against firms (or solicitors will have to swallow the costs of adjournments, or of client complaints)
- basic pdf software to prepare an indexed paginated OCR bundle is less than 20 quid a month. It is easy to use and training materials are available online (eg FLBA)
- a proper file transfer service is essential and also financially accessible
- doing it properly is not time consuming – it is probably less time consuming than preparing a brief which enumerates all the individual documents being attached to the brief and then sending multiple emails with attachments – I will eat my wig if there is not a net cost benefit to the firm of doing this – more to the point setting up systems (or even just providing software and training to individual solicitors in small firms) will save them time
- it’s just good basic client service – and judges do notice a crap bundle…
Are you done yet?
Well, that really has been a bundle of laughs, hasn’t it….
What I really wanted to say was : I know we are all working hard and doing our best and drowning – but if the people responsible for bundles can develop their systems to produce consistently better bundles we will all be more efficient and happy, and it will oil the wheels of a system under huge pressure. Please help if you can. Not by squashing the little people, but my nudging those in positions of power to support them and to make change happen.
And also, be kind to yourself. And to that other person in your case who might be feeling the way I did this morning.
I’m sorry it’s so long winded, but – as they say – I didn’t have enough energy left to write a short one, even after I’d slept on it twice.