The Ongoing Battle of David and Goliath in the Legal Profession

David and Goliath book coverMalcolm Gladwell’s new book, David and Goliath: Underdogs, Misfits, and the Art of Battling Giants, helped me to understand that e-discovery professionals are the new Davids of the legal profession. Giants beware. Here we come.

If you have not read Gladwell’s book yet, I suggest you do so, despite how all the big powerful reviewers have trashed it. Below is a good video of a TED-talk by Gladwell on the central theme of the book, the true meaning of the David and Goliath story. That is followed by a few of the more notable quotes from the book. This should give everyone who has not yet read the book enough background for the rest of this blog. I will then give my take on how Gladwell’s insights apply to law and e-discovery. I’ll explain why I relate to David and, like him, dare to take on the big guys. Like the bible story itself, I hope this will help motivate you to keep on doing the same.

Quotes from Gladwell’s David and Goliath:

The very thing that gave the giant his size was also the source of his greatest weakness…The powerful and the strong are not always what they seem.

Power can come in other forms as well – in breaking rules, in substituting speed and surprise for strength.

We spend a lot of time thinking about the ways that prestige and resources and belonging to elite institutions make us better off. We don’t spend enough time thinking about the ways in which those kinds of material advantages limit our options.

The reasonable man adapts himself to the world: the unreasonable one persists in trying to adapt the world to himself. Therefore all progress depends on the unreasonable man.

An innovator who has brilliant ideas but lacks the discipline and persistence to carry them out is merely a dreamer.

David’s ability to win that battle begins with weakness. He can’t win the normal way. He must be creative.

Your obstacles and moments of weakness are your greatest opportunity.

The David position is a high-risk position. There was a possibility he could fail.

Be forgiving of those who have failed. If it doesn’t work, they will get another shot.

David is marked by his refusal to be passive.

When an underdog fought like David, he usually won. But most underdogs don’t fight like David.

To play by David’s rules you have to be desperate.

Desperate Like David

ralph_profileLike most e-discovery professionals, I relate with David, the little guy, the apparent underdog. In truth, I’m like him. Just another small blogger taking swipes at windmills. Ask any truly rich and powerful lawyer, for instance, the millionaires that run most of the big law firms, or the rich executives that run most of the law tech companies. Most think that individual bloggers like me, rule breakers, are not even worthy of their attention. I’m just one small voice among a billion self-published blogs that spit out three million new posts each day. They see me as just another little guy, easy to crush, easier still to ignore.

My readers, Davids all, certainly see that, but you might not see that I’m desperate like David. I try to hide it. A lawyer’s vice of pride I suppose. But in truth, I am desperate. Desperate for change and, like David in the Bible, motivated by a fear of failure, fear that my tribe of fact-based justice seekers may be wiped out.

I fear that law may get swept away by technological changes, may become irrelevant. Law may become just another big business. I fear that our society may lose its foundation in justice, or, as many contend, become even less just than it already is. I fear that a society based on Men, on Corporations, and not Law, may take over. I fear that a day may come when liberty and justice for all becomes as passé as privacy. I am desperate to stop all of those things.

Security-or-Privacy

We all have certain unalienable rights, including a right to both security and privacy. Neither can be absolute, but for justice sake, they must be kept in balance. That is all part of our legal right to Life, Liberty and the pursuit of Happiness. Like all lawyers, I have sworn multiple oaths to uphold these basic rights. Foolish David that I am, I take these vows seriously.

Mere Shepherd Boys

Every e-discovery specialist knows that as far as most lawyer Goliaths are concerned, you know, the big dogs, the heavy rain makers that run most law firms, people like us are just e-discovery puppies. We are lowly geeks who only do discovery for a living. Most still think this is just a lowly shepherd boy task suitable for first-years. Why would we ever make such attorneys partners? It is not even a real legal pursuit; it is just computer forensics. Some even think it is just something you hire a vendor do. In fact, there is no state Bar anywhere that will even recognize e-discovery as a legitimate speciality. Believe me, we tried in Florida and were shut down, big time. We heard all of those responses.

The Goliath establishment that still runs our justice system resents our kind and  our technologies, including especially the sling-shot of our day, predictive coding. Although the Goliaths loathe us for who we are, they do not fear us, which is one of our advantages.

Law_is_business

We are so small, many of the legal Goliaths do not even see us. They have very poor vision. They do not read blogs. If they do see us, it is just like the story in the Bible. They laugh at such unworthy rivals. They are over-confident to an extreme. For instance, most see me as just another blogger. Not even published by a major media corporation. Self-published. Just like a billion others. What a joke. I am easily trivialized as just another little ego-voice in the much disdained blogosphere. A little shepherd boy playing with computers. You should hear the establishment lawyer mockery if I admit that I also tweet on Twitter. Let us not even talk about having a You Tube Channel, or my far-out, unprofitable, attempts at online legal education. You can almost hear the ironic taunts of Goliath: Am I a dog that you should come to me with sticks?

Trying to Put a Dent in the Legal Universe

In truth, like David, I am desperate, and ready to risk-all to win the battle. I am tired of waiting for my profession to change. Tired of watching our justice system erode. That is why I fight so hard. Why I write each weekend to help motivate and arm the few other Davids, who, like me, are trying to make a difference. To paraphrase Steve Jobs, we e-discovery pioneers are all trying to put a dent in the legal universe. I am reminded of one of the greatest short videos of all times, one that also happens to be a 1984 Apple commercial.

The profession we chose, that we care about, moves so terribly slow, and in lockstep, just like the commercial. Still, we e-discovery pioneers persist. In my case, I write-on. Lately, I have even dared to fight some of the acromegalic giants head on, to put my crazy predictive coding claims to a test, both in court and in the laboratory.

My gratification is to sometimes hit the Goliaths on the head. Someday they may even fall as a group, like dominos, and the profession change. Maybe I will live to see that day, maybe not. But I am confident that my son will. Change is in the air. I am confident that the legal world will eventually adapt to technology and big data in a way that preserves individual rights. The legal profession, and its work of justice-making, will evolve and survive. It will refuse to become just another business. Someday lawyers, with the help of paralegals and techs, will thrive in the deluge of big data, not be drowned by it.

The work of justice, of fairness and equity, is critical to our future. Technology and science alone, without the temperance of justice, could easily create a Orwellian nightmare. We must and will prevent that from happening.

Join with me in that good fight. Stand up to the giants. But do not try to beat them at their own game. Understand and play by the rules of David.

Conclusion

Michelangelo's David and Goliath

The legal Goliaths may appear to be invincible, but in truth, they are vulnerable. The legal establishment’s weaknesses are technology, vision, and speed. Since these are David’s strengths, our victory is possible. If we carry on with our technology, unafraid, we will eventually get a-head. We have only to keep our edge, our desperation. Then it is just a matter of time and perseverance. It may seem like a hopeless, unfair fight to take on the powerful firms and corporations, to fight alone for truth and justice. But is it really, and to which side?

13 Responses to The Ongoing Battle of David and Goliath in the Legal Profession

  1. I am still on holiday in Sicily on an art/architecture tour so I shall be brief.

    You are not a little guy, the underdog. Far from it. And clearly you are NOT “another small blogger”. And certainly NOT an ego-voice. Monica Bay may take away your EDISCOVERY TECH … oops, sorry, LEGALTECH … pass with that kind of talk.

    But if our legal cultural history has taught us nothing else it is that the law has always been a business, and nothing more. We’ll cross swords on that next week when I am back.

    But agreed: Gladwell got trashed … for being Gladwell. Pity that. I enjoyed the book. Clear insights.

    • Ralph Losey says:

      You say “the law has always been a business, and nothing more.” I say, not in my world. I am not a businessman. Just a lawyer who is also a writer and sometimes educator. As to your other points, just ask any lawyer on the street who I am and they will respond with a ‘Huh?” Only in a little bubble am I known.

      • Ok, the Ediscovery “bubble”. But you are a dominant force and presence in that bubble. Look, you and I both know that Ediscovery is still very, very young, without the history and depth and gravitas of the legal issues in areas like IP law or criminal law. And to most legal practitioners it is still “that back room stuff”. We hear that constantly … still … at GC forums and substantive legal events. Which is why Ediscovery is still run by vendors and non-legals.

        You … and people like Jason Baron and Maura Grossman … are changing that. Slowly, yes, but you are changing the ecosystem.

      • Ralph Losey says:

        It is ungracious not to accept a sincere compliment. So, thank you Greg. I just try to keep it real and not get too impressed with myself.

        After all, in the big scheme of things, we are all equally small.

      • Paul Murphy says:

        I’d say you’re pretty close to the consummate educator.

        Law is, I think, a business to those who use it that way, who expect to make their fortune before they turn 50 so they can retire. There are people like that in all professions.

        But Oliver Wendell Holmes was not just a businessman. Archimedes was not just a bather. People like them don’t retire at 50 — or ever. I doubt you will, either. Or, if you do, it will be so you can blog, teach, and go to Sedona Conference meetings to expound upon the e-discovery developments.

        I always read the David story to mean that if you follow your inner voice, your higher calling, then you have to succeed. Regardless.

      • Ralph Losey says:

        Nice comment. Thanks.

  2. […] The Ongoing Battle of David and Goliath in the Legal Profession […]

  3. Dana W. Furby says:

    The David/Goliath story is a good one but I think you should know that what you are doing is more akin to casting a thousand mustard seeds across the fields. Those little seeds of faith are taking root in ways you may not see. I am founding the International Center for Data Evidence Connectives in Sonoma County, California. It’s barely more than an idea right now but the interest generating is encouraging. The smaller law firms and sole practitioners have very compelling reasons to become better e-discovery and data evidence masters. They don’t need to be intimidated by data or by opposing counsel who carelessly throw around tech jargon with no clue what they are even asking for. I’m starting to get hired to consult on small cases and teach how data should be approached in litigation, and to speak to our local bar associations. We should talk! I would like to promote some of your curriculum at the very least. I’m probably one of those people who have no idea what I’m up against but I hear that’s often a business advantage. I can be reached at dana@danafurbylaw.com or at 707-200-4997. I have a new website at http://www.connective.co, too. There is a lot to do but I think the legal world is ready. There are new angles to take on teaching this. Anyway, you are inspiring. Thanks, Dana

    >

    • Ralph Losey says:

      Go David Go!

      You will face a Goliath soon enough and it sounds like you are preparing yourself for the inevitable battle. Just remember that David had practiced his stone throwing many times before stepping up to the plate to go against a Goliath.

      And, yes, I like your seed scattering analogy too. I also like the butterfly’s wings story in Chaos science. You never know what good may come of your efforts, so we should not expect immediate, tangible results.

  4. A reader of my book Zubulake’s e-Discovery (2012) sent me a copy of Gladwell’s book as a Christmas gift. She has used my book as a resource and thought I would relate to David and Goliath. In fact, Chapter 3 of my book is titled The Underdog. In it I write while I recognized that I was at a competitive disadvantage, I also had significant advantages that I leveraged throughout my case. It is worthwhile to note that much of e-discovery was founded by a case that was a classic David and Goliath story.

  5. craigball says:

    Geez, Ralph, you sound like you’re having a really crappy day. Cheer up. We are all making our noisy little contributions and turning the battleship an inch at a time.

    There was never a professional bar certification offered for discovery, so why one for e-discovery? E-discovery competence is destined to be a subset among the many core competencies of skilled trial lawyers. It shouldn’t be relegated to some marginalized geek backwater. It must be a body of knowledge lawyers grasp to be good lawyers; that is, lawyers must possess the ability to, with earned confidence, deal with evidence in its most prevalent forms.

    I see our mission as techno-forensic evangelists as one to make ourselves obsolete, not essential.

    There is a place for Davids and for Goliaths in the practice of law. Big, strong (albeit nearsighted and plodding) ogres win certain sorts of battles, and nimble underdogs win others. If David hadn’t aimed just so, he’d have been known only to Goliath’s pedicurist, and we’d be talking about the hubris of Icarus.

    While we’re at it, it’s early to be singing paeans to the slingshot. Sure, it worked bringing down Goliath; but, it’s not the best or only weapon extant or coming. The arrow, followed closely by the bullet, seem more evolved and accurate tools;, and they can’t hold a candle to the phaser. So it will go with predictive coding.

    Amigo, we do and we teach. That doesn’t grab the laurels; but, if we were in this to be rich and famous, we’d make a pact to stop talking about Maura and Jason and start blogging about Beyonce and the Kardashians! Love you, man. ;-)

    • Ralph Losey says:

      Well thanks, pal. You and I have always disagreed on that point re speciality. As we have discussed before, I see a future where law become like medicine, with greater and greater specialization. I don’t see a return to the old days where you and I learned the law, where a trial lawyer could do it all.

      I see another future with more radical changes. A future where the general litigator with a little knowledge of a lot of things will be like the medical GP, the internal medicine specialists (or for consumer type cases, like the family law doctor) whose job is to monitor the overall wellness of the person (the case) and refer to specialists when needed. They basically help diagnose, they explain to the patient, they coordinate and refer to specialists. The notion of a future day when your primary care physician will again do it all, and perform brain surgery if required, rather than refer to a brain surgeon, is, in my estimation, as likely as litigator doing his own e-discovery. Not going to happen, at least not without potentially vary bad results (like brain surgery), in all but the simplest (Edna) type projects. Yeah, I’d let my GP pull a splinter out of my toe, or set an bone in an emergency. But for anything serious I want the specialists. One who does complex medical procedures every day, who has high skills. Maybe in the very far future it will come full cycle, but the computers will have to be a lot more advanced for specialization to wither.

      In the next 50 years or so is all going to get more and more complex. The trial lawyer who interfaces with the judge will probably not even understand what the e-discovery lawyer is doing. Hmm. In fact, has not that day already arrived? (What say ye readers?)

      There is no going back. Some day discovery will be a BAR recognized speciality. But that will require a paradigm change and recognition of complexity in law and legal tasks, including discovery. When even one of our best thinks it is so easy every lawyer can do it, there is no need for specialization, I see the difficulty of the battles ahead.

      But like I said, you and I have always disagreed on that point, and as old trial lawyers neither of us are likely to change our positions now. We’ll let the judge rule, which in this case is time itself. So in the meantime, let us agree to disagree and keep on doing our best to educate as many as possible, a goal we both share, even if our end-games and vision may be different.

  6. Ralph Artigliere says:

    Craig, I hear you, but I am with Ralph Losey on this one. Some time ago I was chair of the Committee that oversaw board certification in Florida. The purpose of The Florida Bar Board Certification program (and almost all other State Bar programs around the country) is not to help lawyers sell their wares. It is to provide reliable standards and information help those who need to select a professional and capable specialist to represent them for the job at hand. Any lawyer can say they can do the job, few can prove it in a reliable way. With close to 100,000 lawyers in Florida and more taking the Bar exam each year, how do you find the right one you need for your case or how can a referring lawyer know who to choose as co-counsel? I cannot think of an area where clients and referring lawyers need more help in selecting the right person for the job than eDiscovery.

    The mountain to climb in achieving a specialty certification status today for eDiscovery is steeper as a result of techno-phobia among almost all but those in the so-called bubble. Putting another arrow in the quiver of the eDiscovery specialist is the last thing some lawyers want to do. There are others who understandably have a tough time wrapping their head around the concept of certifying discovery specialists. The key is to get The Bar to understand the importance of being able to reliably locate an eDiscovery specialist to achieve economical and effective justice in certain cases and to focus on the point of view of the consumer and not the general membership of The Bar.

    The certification program in Florida is first rate. The folks on the committees are hard-working volunteers, and I believe they are trying to do the right thing. Reasonable people (and even eDiscovery specialists) can disagree on the issue of State Bar’s officially blessing eDiscovery specialties as evidenced by views of Craig and Ralph above. However, I respectfully think they are wrong on this one. Time will tell.

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