Last week, Forbes published an article by Karl Schieneman entitled Legal Hydra? Top Ten Tips to Become More Proficient with Machine-Assisted Review. As he points out in the first paragraph of the article,
“The fact is, when it comes to electronic discovery, lawyers take a disproportionate role in the battle to solve what is largely a technological problem, i.e, how to find information that is relevant to a case from the huge vats of Electronically Stored Information (“ESI”) that are collected and preserved in many cases or government investigations.”
It is an excellent article that highlights one of the major rifts in today’s legal discovery between attorneys and technologists. As a technologist (self-declared), I do have a somewhat biased opinion on this issue, but I try and look at this issue as objectively as I can. It is clear to me that while the two fields are integrally related, that each requires some particular expertise that is not necessarily possessed by a single individual. Even thought I have been involved in the legal industry for 30 years, I would never go to trial without an attorney. So why do so many lawyers attempt to handle EDiscovery on their own?
It is accepted practice in the legal profession that you consult with a doctor in a medical malpractice case, a software engineer in a software case and an accountant when the case involves financial malfeasance. So why is there such resistance to “partnering” with electronic discovery experts during the phase of the case that involves this ever present discipline? By attempting to handle this technology in house, lawyers can negatively impact the case, unless they happen to possess this ancillary legal expertise. While clearly, there are many lawyers that have acquired the knowledge needed to handle some basic EDiscovery on their own; the newest technologies in the field, including machine-assisted review, predictive coding or concept clustering requires some very special knowledge.
Lawyers and legal technologist often speak the same language, but they are often speaking different dialects which can make it difficult to communicate effectively. As a result, technologists can be rejected by a legal team for two primary reasons: 1) technology is viewed to be too expensive and should be avoided whenever possible; 2) technologists don’t explain clearly how machine-assisted review and other technology solutions can end up saving money in the long run. Remember that it was not so long ago that lawyers insisted on physically looking at every document in a population, before the implementation of keyword searches helped lawyers parse out the more useful information for individual review. New technologies need to be explained, tested and perhaps most importantly, explained and accepted by the courts.
It is time for the basic conversation between the two parties take place, with each party parking their egos at the door and truly listening to what is being said. Machine-assisted review is likely to be a game changer in EDiscovery. It is still very new to the marketplace and vendors need to spend a lot of time explaining why the legal profession should pay attention to it. Lawyers will need to become comfortable with conducting EDiscovery under this new paradigm, and the change won’t come easily. But I firmly believe that this technology will help control the volume of information which has to be reviewed during EDiscovery.
In order for that to happen, lawyers need to view technologists as partners in litigation, not as an uninterested outside vendor. Making vendors an integral part of the team will result in someone vested in both reducing costs and making sure that technology is employed effectively on behalf of their clients. There is a major difference between legal expertise and technological expertise. Look for vendors who understand both the technology and have experience in the legal marketplace and you will have found an effective partner for your litigation. Then go review some documents, a vastly reduced number of documents.
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