By Vince Neicho, president of legal services at Integreon
Traditionally tech-averse lawyers are now wholeheartedly embracing technology, but there is a danger of moving from one extreme to the other – how do help to guide and shape the use of and approach to technology in this new environment?
For most of the last 20-years or so, litigation support managers/eDiscovery/eDisclosure professionals (or whatever they are called now) despaired at the lengths to which they had to go to persuade the lawyers they support to embrace technology.
The most important key on many lawyers’ keyboards was the ‘print’ button. Even if they could be persuaded to use technology to carry out basic search terms to define or reduce a document set, it was likely that the responding documents would have to be printed before the lawyers would embark on any form of review.
In many ways, it was the launch and widespread adoption of the iPad and other tablets that was a turning point. I always recall a prominent partner suggesting that lawyers will not review on screen “until the technology can mimic actually turning the page”. He was correct. It was virtual page turning or ‘swiping’ facilitated on tablets that changed the game and the mind set of lawyers. As lawyers came to rely on their tablets, they also began to accept, dare I say embrace, technology in general.
Over the last few years, the exponential increase in data volumes and the practical impossibility of eyes-on so many documents meant that something had to give. Add to that the court appearing to endorse analytical filtering of data by way of technology (and even demanding its use in the rules on disclosure); the trending of buzzwords and phrases such as AI, predictive coding, computer continuous active learning, and on and on. This has resulted in lawyers now clamouring to use the latest technology. Some motivated to “stay ahead”, “get ahead”, and some to “catch up” – and almost all because their clients demand it. Of course, the enforced new practices brought about by the COVID-19 pandemic has also brought all of us to realise that we simply cannot function without technology.
Why this might prove troublesome
There is a danger that we may have moved from one extreme to the other. In some cases, I think this falls into the bucket labelled, “a little knowledge can be a dangerous thing”. There are those that assume that technology is “magic”. Technology is a not a silver bullet. It is definitely not a black and white, conclusive tool. However, it is an enormous facilitator steering lawyers and others in the right direction and helping to readily find material likely to be of significant evidential value. A combination of powerful technology, accompanying process and human thought – applied by trained operatives and review teams – will provide for ‘smart’ review and analysis. Now, it is difficult to imagine and painful for those that remember how we used to arrive at sets of evidence without the use of technology.
Another consideration is that, traditionally, much of the powerful technology can only be applied to data sets, once they have been extracted from source. The English Rules’ concept of proportionality means that, unlike in some other jurisdictions, rather than wholesale collection as a matter of course, initially, interrogation of data at source should be undertaken to establish what is required to be exported for further consideration. Depending on the integrity and scope of the collection process, it may be that certain documents may have slipped through the gaps long before the analytical technology can be applied. They will of course be missed from future data sets in the process. This is an area where innovative eDiscovery technology providers, such as Panoram, are focussing. They query what might be done better at the source to streamline what data requires collection and further analysis. This enables significant costs savings and reduces the risk of missing potential important evidence.
Again, contrary to the belief of some, not all analytical processes are appropriate to all data sets. For example, predictive coding will be relatively useless across data sets featuring spreadsheets or voluminous short chat messages.
Rise of the Chief Technology Officer/IT Manager
Within a law firm, it was once relatively easy to manage external analytical technology. Most of it originated from the eDiscovery space and entered the firm via the litigation department. In later years, other departments and practice areas were able to adapt and utilise this same technology to assist in their own areas of expertise. However, the emergence of Fintech companies and the general spread of (so-called) AI, means that technology is now entering the work space from several departments, and often at a considerable pace.
This introduces new challenges and thus, the need for technology expertise and a competent CTO/IT Manager. There is now a real need for a team to evaluate what is available in the market and assess how it might be best used in areas beyond where it was originally introduced. Also, it must of course be consistent with the law firm’s own policies, infrastructure, security protocols, and technology suite and not duplicate other tools that may already be in place to do much the same thing. More forward thinking law firms have their own incubation hub for new technology, which adds a further consideration and opportunity when assessing third party products. Of course, the best-placed CTOs will also be au fait with how the technology they manage will augment and interact with human resources, be they in-house, via ALSPs such as Integreon, or ideally, a combination of the two.
Where are we now and what is left to be done?
While the legal professional may think we are now, for the common good, in a much better place in terms of acceptance and use of innovative technology, perhaps we need to be a little careful in what we wish for! As we know, it is often hard to contain the beast created.
We also need to dispel the myth that humans are becoming redundant in the process. It is the power of the person that will determine how effective supporting technology will be. It is the human mind that will assess the use to which technology could or should be applied at various stages along the way. They will need to assess the output – having trained or refined the algorithms – and make sense of the resulting work product.
In the legal document review space, use of analytical technology will undoubtedly lead to smarter and better review by the human review teams. Their expertise will be honed to provide the case lawyers with a far more refined and useful set of evidence with which to advance their case. To facilitate this, interaction between the case team, the review team, and the technology/eDiscovery team is required throughout the review process. For example, they should be reviewing documents early in the process to guide and train the software, sample the likely relevance weightings determined and attributed by the software, and, review the resulting document set for relevance, privilege, and issue coding.
As technology evangelists and eDiscovery specialists, we have successfully played our part in opening lawyers’ minds to the benefits and inevitability of technological advancement and change. Our next challenge is to manage expectations and ensure that the increased use of analytical technology is focussed – throughout the legal profession, including law firms, counsel and the judiciary.
Integreon, fellow ALSPs, and all eDiscovery providers have a role to play to ensure that appropriate technology is always considered during the litigation process by clients and their law firms. However, the suitability and capability should not be over-egged, such that false promises are made and the end users are confused as to what is and is not possible.
At the invitation of prominent members of the judiciary, we have addressed judges at the Judicial College and in other settings on the interaction of technology, data management and analysis, and eDisclosure. The judiciary are far more technology aware these days, which is most encouraging and enlightening. It has also been a tremendous lever to help encourage lawyers to make use of the powerful technology available to them; safe in the knowledge that the court is less likely to penalise them, should they happen to miss a document or two in a bone fide, honest and transparent attempt to arrive at a proportionate data set. All the more so if the parties have agreed to the approach to disclosure in advance, as required by the rules.
Vince joined Integreon in June 2017 as an expert legal solutions consultant, with a focus on law firms and corporate legal departments engaging in e-disclosure, e-discovery and document review. Prior to joining Integreon, he was with Magic Circle law firm Allen & Overy for 42 years, where he set up and led their global litigation support / eDiscovery teams. In this role, he assisted key clients from many sectors with the design of innovative, defensible systems, processes and solutions to meet their discovery and document management obligations and introduced the firm to outsourced document review, some 10 years ago.