Remember when e-discovery was new? Remember the early days when searching for evidence in computers was exciting, fun even? Those days came to mind yesterday while watching my granddaughter and a few dozen other kids search for Easter Eggs. Total focus and joy surrounded her and the other toddlers. Back in the early days of lawyers and computers, we were all like kids on an Easter egg hunt. We all enjoyed the search. We enjoyed the process, the creativity, the latest software, the bits and bytes. And we enjoyed finding evidence, the “true facts.” Other attorneys were amazed. It was an adventure and we were the pioneers. We would say things like this:
Wow! Look what I found. This is what we were looking for. Amazing what people will say on Compuserve. Let’s put it in our production basket. Let’s look for more. This is great! And to think we are getting paid to do this.
Many attorneys these days do not know this joy. They have never known it. Sad. When they think of legal search and document review, they think only of drudgery and boredom. Reading one stupid electronic document after another. That is not a creative, cutting edge adventure, to say the least.
Over the years e-discovery has become serious business. Joyless. How did this come to pass? Perhaps it is because the search for evidence usually takes place in lawsuits. Acrimony, stress and pressure are everywhere. But that was true back in the good old days too. That did not stop us from having fun back then. We liked working with new software and the wonders of computers.
Another possible explanation is that the challenges of today are far greater. The volume and complexity of ESI have, after all, grown tremendously. I do not think that explains it either. The challenges are more advanced, but so too are the tools. Some attorneys, myself included, still enjoy the hunt for evidence treasure. See e.g. Why I Love Predictive Coding. Typically the only lawyers I meet who still enjoy e-discovery are ones that have both the tools and skill set necessary to meet these challenges. It is one thing to be told you have to go twenty miles from point A to B, and then handed a pair of shoes to walk there and a paper map. It is quite another to be told to make the same trip and given the keys to a Ferrari with a navigation system.
I think the majority of lawyers do not find pleasure in legal search because they are doing it wrong. They are walking, not driving. They use outdated tools and methods that treat computer files as if they were paper documents. They are not. Software engineers know this, but many still design document review software that treats computer files as if they were paper. It is easy to do and they think that is what lawyers want and need. Many naive lawyers may indeed want this, but it is a desire born out of nostalgia that, when put into practice, quickly leads to mind numbing boredom.
Software is part of the problem, so too are the methods. Antiquated document review methods, even if the tools are new, are a recipe for boredom, not joy. By this I mean methods that depend on keyword search alone (we were doing that in the 1980s) and document reviewers who read all documents. Days and days of document review is a sure-fire way to suck all of the joy out of legal search. It is also a recipe for ineffective, expensive search. Cynics may say that is why some law firms cling to linear review. They do not want the evidence to be found, they suspect it is all bad anyway; and, they sure do not mind profiting from the inefficiencies.
Most people in e-discovery today are no longer driven by a sense of adventure and creativity as we were in the old days. They are instead driven by fear and greed. Big money is involved, so too are big risks. What if we miss and an egg? Lose an egg? Will we be punished? Will our client be sanctioned. Will we be fired? What if we do not keep our hordes of contract review lawyers busy? What if we do not pile up the billable hours we need for a bonus? We have bills to pay. We have nasty opposing counsel to placate with document dumps. We must win at all costs or the client will fire us. There is no room for true job satisfaction in those scenarios, much less joy. No wonder so many lawyers do not love their work.
I feel sorry for those in e-discovery who have never known the thrill of the chase. I pity those who have never known the joy of the search for Easter eggs of relevant ESI. They should look for a new line of work. Either that, or completely change their approach to e-discovery, especially how they search. Search can be tedious, frustrating and boring, or it can be engaging. It can be a flow. Hide and seek is fun for every child. It could be for your work too. Not all the time. That is not realistic. But at least some of the time. It all depends on your approach: your technology and your methods. It is up to you.
You can change, that is, unless you are a mere cog in a big machine, a young associate or a contract lawyer. Many in this area of the law are forced to mindlessly do what they are told. They do so just to eke out a living. No one struggles through law school to read other people’s mail all day, everyday. Yet, the life of a contract lawyer can be just like that, can be mind numbingly boring. But if you are not just a mere cog in a machine, if you have some control over your legal practice, if you have a choice, then you can escape this drudgery. You can embrace the new methods, the latest software, the latest AI. Then you can know the child-like joy of the search. You can know the fun of finding evidence, of uncovering the golden egg. Your prize is to make a difference, to contribute to justice.
For those lawyers who are just in it for the money and power, and make other attorneys do all of the boring work anyway, you have my contempt. But I am not concerned about you. Time and smart clients will eventually destroy you. My job is to focus on positive solutions. You are just buggy whip manufacturers milking your final days of glory. History and tomorrow’s leaders will not treat you well.
Those of you whose memory stretches back to the early days of e-discovery can still remember the joy and fun of the search. If your practice no longer brings you that kind of satisfaction, then you should change. There is more to life than money and power. Embrace the new methods, the latest software. For instance, learn about the latest Hybrid Multimodal methods of document review. Learn about Predictive Coding 4.0. Learn about the difference between CAL and IST. Take my TAR Course. It’s free. Make friends with the latest full-featured, software such as EDR. Learn the ins and outs of active machine learning. What do you have to lose? Just drudgery, boredom, fear. What do you have to gain? Watch small children search for and find Easter eggs and you will have a glimpse.