The Sky is Falling

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Yes, we’re not in Kansas anymore… and no, Mr. Little, the sky is not falling–further thoughts on the impact of predictive coding

A few weeks ago, the NY Times published an article, “Armies of Expensive Lawyers, Replaced by Cheaper Software,” focusing on the impact that technologies are having on the world of e-discovery, specifically the attorney review process. Based upon the degree to which this piece has been reposted, analyzed and discussed, you would think that the legal profession as we know it will cease to exist by summer. To offer some differing thoughts and a word or two of comfort, I’ll start with a quote from one of my favorite authors, Douglas Adams, who delivered this important reminder in his own forward-looking and futuristic tale, The Hitchhikers Guide to the Galaxy: “don’t panic.”

Is the practice of law evolving rapidly?

Without question, the legal field is undergoing what many would consider long-overdue, transformative changes. Most of these fundamental changes, however, have little to do with whether a computer can make a better decision than an attorney in a document review.

The legal business is changing because the people who pay the bills are increasingly requiring that their counsel behave like they are, in fact, a “business.” This means that clients want attorneys who are not only experts at what they do, but who also recognize that budgeting, process, project management, and value mean a lot. It also means that the days of the blank checkbook to the legal department and their outside counsel are over. Large companies are addressing “legal” as a business process and they are aggressively looking for ways to make this process better and less expensive. I spoke about this topic at Duke University School of Law a couple of weeks ago and will post more to this in a separate blog.

So how will review automation impact attorneys?

Despite the gnashing of teeth and assertions that the advent of processes like predictive coding signal the end of large law firm associates (in the case of venerable Howrey & Simon, The Wall Street Journal went so far to suggest that the evolution of the discovery process contributed to the overall demise of the firm), our view is that review automation will be an overall win for large law firms and their associates. Here are a few of the reasons why:

Garbage in / garbage out. These uber-smart computers have to get their “intelligence” from somewhere… and we don’t believe that this work will fall to contract attorneys who know little of the matter. In most instances we think that the lawyers who are deeply involved in the case also will be responsible for “training” the computers that ultimately will make the decisions. This is not a plug-and-play process, and the time commitment on the part of the firm associates will be significant.

We found the relevant data … now what? Most commentators on the subject of review automation and the potential demise of the law firm model seem to have forgotten that once the predictive coding process is executed, presumably there will be a set of relevant files that need to be reviewed. In most instances, this review will be conducted by associates to determine whether the files are appropriate for use in depositions and in the trial of the case. These files likely have to be further reviewed for privilege. And anyone who has worked on a recent e-discovery matter knows that the volume of relevant data alone (which requires associate review) can be massive.

Budgets to defend the merits, not conduct discovery. A partner at one of our largest law firm customers laments the introduction of high-volume e-discovery for the single reason that it sucks up a huge portion of his overall budget for most matters. With the introduction of automation and its potential savings, this same partner believes that in the near future valuable dollars will be freed up to allow him (and his associates) to actually try the cases.

If not law firm associates, which attorneys are impacted?

E-discovery today requires armies of attorneys, most of whom are not associates at large firms. In fact, much of today’s discovery review has been shifted to outsourced providers, including firms like ours. For us, and for our attorney teams, this means that we have to move forward. We have to find ways to master these automation tools and processes, and we have to continue to find ways to deliver real value, enabling corporations and their counsel to conduct the discovery process more efficiently. Evolution catches us all!

Author Details
Senior Vice President, Discovery Strategy & Data Privacy/Security
A recognized thought leader in e-discovery, Maureen collaborates with the company’s clients and operations teams to develop innovative information strategies for legal discovery, compliance, and sensitive data protection. She speaks and writes frequently on significant issues in e-discovery and information governance, and participates actively in the Sedona Conference Working Groups on Electronic Document Retention and Production and Data Privacy and Security. Prior to DiscoverReady, Maureen was a partner at Paul Hastings LLP, where she represented Fortune 100 companies in complex employment litigation matters.
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