e-Discovery Team

The New York Times writes its first story on electronic discovery: Smarter Than You Think: Armies of Expensive Lawyers, Replaced by Cheaper Software.

A March 5, 2011, article in the NY Times examines recent advances in technology, specifically software, that are improving the efficiencies of search and review in electronic discovery. It got that part of the story right, which is not surprising since the reporter, John Markoff, is a technology expert. But the other focus of John’s story, the supposed job-chilling impact of these new technologies on the legal profession, was off the mark. In fact, the contrary is true.

The new developments in software featured in the story may disrupt the job market for contract lawyers, but overall will lead to more jobs and much more highly skilled jobs. The NY Times reached the wrong conclusion because it missed at least three technological and legal factors that impact the e-discovery job market for lawyers:

1. New software also creates new highly skilled legal work;
2. The information explosion counter-balances increases in ESI review productivity; and,
3. Electronic discovery is avoided in most lawsuits today, and as the utilization rate increases over time, so too will the demand for e-discovery services.

Apparently the NY Times has fallen for what economists call the Luddite fallacy, the erroneous assumption that new technologies increasing productivity necessarily reduce employment. As economist Alex Tabarrok observed: “If the Luddite fallacy were true, we would all be out of work because productivity has been increasing for two centuries.”

Lawyers Will Be Retooled, Not Replaced

The new technologies advancing search and review automation discussed in the story do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own.

The latest e-discovery software is good news for the profession. It frees lawyers from much of the drudgery of e-discovery. It frees us from wasting our time reading too many emails and the like. But, at the same time, it also creates new work, much more highly skilled work. It requires lawyers to retool, to  learn new skills, to learn new law, new methods, such as the creation of metric based arguments, the use of iterative sampling methods, subject matter expert consultations and search adaptations, aggressive transparency techniques and strategic cooperation methods. Sure, the  new software may take away 1980s type work of reading mountains of paper, but it creates other more interesting work.

The new technologies force the so-called “expensive lawyers” to grow, to become more tech savvy, but it does not put them out of business as the Times article suggests. In fact, the only impact it will have on the legal jobs market is on attorneys in the lowest paid spectrum, the so-called contract lawyers. The explosive growth in the number of “least-expensive lawyers” may slow. They are the ones paid only to do first pass reviews. They are supervised by full-time “expensive lawyers,” the more highly skilled e-discovery lawyers.

These contract lawyers, like the rest of us on e-discovery teams, will have to gain new skills. When they do, and the actual use of advanced software grows, they will significantly increase their productivity. In a few years, with good software and supervision, lawyer productivity may increase ten-fold. But one-thousandfold (500 x 2) as the article suggests? No way! Not anytime soon. Still, there will be some displacement in the jobs market. As productivity increases, fewer lawyers will be needed in the low-end for mere ESI review. Still, new jobs will be created for the higher end lawyers to supervise and manage the new automated processes and integrate them into the handling of lawsuits.

Greater Productivity Needed Just to Keep Pace With the Information Explosion

The article’s prediction of a poor jobs report for e-discovery lawyers misses the point of the exponential explosion of ESI. The new technologies allow us to go faster and search and review more and more bits than ever before, but still, we are just treading water. It is like we are driving a car that is accelerating and going faster and faster, but the road ahead keeps getting longer and longer. A journey of a thousand miles will take ten hours at a hundred miles per hour non-stop. Increase the speed to a thousand files per hour and the review trip will only take an hour. But if the length of the journey also increases to ten-thousand miles, the total time (and expense) remains the same, even though the speed, the productivity, has increased tenfold.

I do not know the actual metrics here. I don’t think anyone does. But it is my impression that the incredible advancements and improvements in search and review speed made possible by some software are roughly counterbalanced by the growth in information. As the video I made with Jason R. Baron demonstrated, e-Discovery: Did You Know, the amount of ESI stored on computers is growing at a mind-boggling rate. The diversity of the types of ESI, and their storage locations, is also growing every day. It is true that the search and review software of some vendors is getting better and faster every day, but the amount and diversity of information stored by client is growing just as fast. They seem to balance each other out. Perhaps there will be a huge leap in software that will outpace the information explosion. But that seems doubtful, as new technologies and inventions are equal drivers of both.

I concede that the new software requires better education of attorneys to know how to use the software and keep pace with the information explosion. But, if we do keep learning, and we really have no choice, the new software will not make us obsolete, much less end our fact-gathering functions. I dream that someday this may happen, in the far distant future. We lawyers can then be freed to focus solely on the law. We can use Artificial Intelligence agents and truth detectors to find the facts, to uncover the whole truth. Indeed, Jason and I concluded our Did You Know video with just such a vision. But as a person who labors in the fields of law and technology every day, I can tell you that we are nowhere close to that day. Turning all discovery over to computers is a Utopian dream that is centuries away, in spite of the New York Times suggestion to the contrary.

Greater Productivity v. Greater Utilization

The third factor that the Times article misses in making its gloomy job forecast for e-discovery lawyers is the small percentage of cases in the world today where e-discovery work is done at all. Electronic discovery is still not performed, much less even discussed, in most federal cases today, even though the 2006 rules amendments encourage it. Yes, e-discovery is present in most if not all large federal cases and investigations today, large cases are a very small percentage of total litigation across the country in all courts.  Even most cases in the relatively elite world of federal court are small and chug along without quite well without e-discovery. Just ask any federal judge or magistrate outside of the large cities. They will tell you they still rarely see e-discovery. Moreover, most litigation is in state court, not federal court, and there most lawyers still try cases the way Abraham Lincoln did. They just use paper documents and they pretend like they were not originally generated by computers. They avoid e-discovery entirely, even emails, largely because they do not know how to do it, and they fear its great expense.

What the paper here missed is that as technologies advance, and this makes e-discovery more affordable, the e-discovery utilization rate will increase. Again, the net result is an increase in employment, not a loss of jobs. Improvements in education, in teaching lawyers how to do e-discovery, how to use the new cost-saving software, will also improve utilization. So to will the natural generation change in lawyers and judges. In a few years I expect the rate of e-discovery utilization in the United States to double to as much as five percent of all cases.

New York Times – Better Late Than Never

This appears to be the first time the Times has written a story on e-Discovery (aside from a story on Zubulake many years ago). It is the nation’s most prestigious newspaper, and yet it is just now discovering e-discovery. Isn’t new an important component of all news?  This legal specialty was born in the 1990s and by now, 2011, is one of the key fields in the law concerning dispute resolution. Every week there is a new opinion, a new case won or lost, not on the merits, but on procedural issues related to discovery of electronically stored information, ESI (a key word in the field that the Times article did not even use).

More than that, even outside of the law, e-discovery has become a significant economic force in our economy. According to George Socha, and others, it is now a five to six billion dollar a year industry. That does not include legal fees related to e-discovery, which are likely far greater than that, since attorney review time expenses always outweigh the vendor costs associated with a project.

So the New York Times appears to be a tad late here, but better late than never. Still, as an Internet based blogger, I cannot help but be amused by the irony of the story’s focus on lawyers being made obsolete by technology.

What the Times Got Right

Although the Times misreads the economic analysis of e-discovery on the lawyer job market, it did get most of the technology aspects right. It is true, as they report, that new “e-discovery software can analyze documents in a fraction of the time for a fraction of the cost.” It is also true as they affirm that:

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

This is why I urge clients to spend some money up-front to use advanced software to save a lot of money on the whole project. Assuming you have attorneys skilled in the employment of these new technologies, it is penny wise and pound foolish not to pay to use them in most significant e-discovery projects.

I also agree with the Times general analysis of the two types of technologies having a big impact on e-discovery work today: “linguistic” and “sociological.”

The most basic linguistic approach uses specific search words to find and sort relevant documents. More advanced programs filter documents through a large web of word and phrase definitions. A user who types “dog” will also find documents that mention “man’s best friend” and even the notion of a “walk.”

The sociological approach adds an inferential layer of analysis, mimicking the deductive powers of a human Sherlock Holmes.

The article goes on to explain the sociological and concept approaches with examples from two e-discovery vendors who are well-known to me, Clearwell and Cataphoria. This is worth a careful reading.

Conclusion

The article concludes with the assertion that: “Now artificial intelligence software has taken a seat at the negotiating table.” Well, I would not go that far. First, as mentioned, the software still requires wetware, by which I mean humans, skilled attorney humans at that, to sit at the a negotiating table and speak for them. We are nowhere near the wonderful Star Trek court room scenes, where the computer seems to control the proceedings and interrupts every time a witness does not testify truthfully. Further, aside from the whole disembodied bit, most negotiating tables in the world today have never even heard of artificial intelligence, much less their application to the resolution of the lawsuit at hand. That will surely change in the future, as more litigants and their attorneys become better acquainted with this software and the skills needed to use it. The New York Times article is an important step in that direction.

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This entry was posted on Sunday, March 6th, 2011 at 1:10 pm and is filed under Lawyers Duties, New Rules, Related Legal Webs, Review, Search, Technology. You can follow any responses to this entry through the RSS 2.0 feed. You can leave a response, or trackback from your own site.