There have been many excellent articles written about what was presented at this year’s Legal Tech: what was hot, what was new and what was “cool”. I am not going to try to add my two cents to this already well documented discussion. Rather, I want to focus on the overall marketing message that I was receiving as I walked around the show, speaking with vendors and reading the marketing headlines displayed in many booths while trying to absorb the trends and tidbits that would help me better serve my clients over the next year.
The consensus before the show began was that predictive coding (Technology Assisted Review) and Information Governance would be the hot topics that everyone would be talking about. In fact, the show fulfilled that prediction, in spades! These two topics are proving to be the major buzzwords for 2012. They are complex and intimidating, yet they offer the most likely solution to the ever increasing volume of EDiscovery that is encountered in almost every litigation matter. New software algorithms are being deployed at an ever increasing pace in an attempt to cull through large document populations and shine the light on the most relevant documents that need to be reviewed by attorneys before production or in preparation for trial. So what is the problem?
As I wrote in last week’s blog:
We are all looking for the magic technology button (EASY) that will solve the problems we encounter on a daily basis with the ever expanding volume of EDiscovery data. What we have to remember is: 1) technology is just another tool to help attorneys do their job and 2) that we have to be able to describe what the technology is and how it operates in order to defend our decisions regarding document productions and 3) there is no EASY button (more on that in my next blog). We need to understand and document what goes on behind the scene when the technology performs its “magic”.
The first impression that is put forth by a company is often the one that is marked permanently in ones conscious. It certainly begins to get embedded in your mind as the message is repeated. I was bombarded with the graphic messages that each company had “the solution” to the EDiscovery problem. Most often it was a new software solution that would eliminate the EDiscovery problem merely by installing it, “pointing” it towards the unknown document population and pressing a button. EDiscovery made EASY. But is the right message to be creating? There was only limited messaging on the need for strong consultative services to deploy and implement these new technology tools properly and to develop and refine search methodology.
I believe that marketing EDiscovery services, no matter how technologically enhanced, as EASY does a disservice on several levels. It is a disservice to clients who begin to think that it is not as complicated as vendors have been describing, and it should be faster and require very little interaction between the attorney and technologist to deploy effectively. It is a disservice to vendors in the long run because if it is so EASY to implement and get good results, clients want to know why it costs so much.
While this type of marketing message might be effective in garnering some quick attention and drawing somebody in for a discussion, it creates a virtually insurmountable problem as we then attempt to explain that we didn’t really mean that it would be that EASY and that it requires a collaboration between several different legal related disciplines to make it work. And while the overall costs of EDiscovery can be reduced by including technology as part of the solution, the technology does not eliminate the need for humans.
Takeway
First impressions matter: we are often misleading our clients and then setting their expectation level to high with some of our marketing promises. There is no EASYbutton in EDiscovery. It is a complex mix of technology and legal analysis which must be employed be experts in the fields of law, statistics, linguistics and database management. It is not a matter of "man vs. machine" The argument in reality should involve machines providing human decision-makers with accurate, responsive information, rather than replacing those humans altogether. Defensibility is a methodology that must be understood and described by an attorney in the courtroom, not a machine in the backroom.
The law (and more specifically the courts) are not satisfied with a black box solution; they have to understand how searches work and why certain results are produced. Lawyers must be part of the team that implements technology, but it needs to include technologist, linguists etc to perform the work in a defensible manner and on a proportional scale. The process and methodology needs to be easier to understand and explain. In the legal context, lawyers need to know how a search works. They need to show all the things that were done that make the search results reasonable. Sounds Easy doesn’t it?
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