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Beyond TAR: Partner Up for the Digital Future of Litigation

Document review isn’t the only aspect of litigation that can benefit from technological expertise.

Talk about stepping up to the plate!  Hats off to Geoffrey Vance of Perkins Coie for sharing his realization that the snail-paced acceptance of technology-assisted review (TAR) rests not with software manufacturers, eDiscovery vendors, judges, governmental agencies, clients or non-lawyer technology professionals in law firms, but with “attorneys (in most cases, partners) of law firms who do not understand the value of TAR.” (See Confessions of an E-Discovery Lawyer: We’re Light Years Behind.)

A recent survey by Ipro Tech seems to support his conclusion, showing that 67% of interviewees believe attorneys will continue to view TAR with skepticism in 2015.

It’s unfortunate that the value of TAR continues to go unrecognized (or, if recognized, not implemented), especially when the world of digital information is frustratingly complex and growing more so every day. It is surely only a matter of time before perceived obstacles appear manageable and we reach the tipping point when technology-assisted methods will reign. In the meantime, though, valuable time and energy is being wasted (not to mention dollars).

The resistance so far is understandable. Transformation of processes and procedures inside a firm may be tough, especially when the stakes are high and tried and true solutions are already in place. It makes sense that the document review practices law firms have relied upon for years are deployed when litigation heats up. And, as “ethically necessary” as it may be for lawyers to keep up with new technologies, no matter how willing they may be, they rarely have the available time to cultivate the skills required to mount a new horse and do a few test runs in what must always seem like the middle of the stream.

The advent of technology has taken us in two opposing directions. On the one hand, we’ve appropriated powerful technological tools to personally use—think GPS and smartphones—that both simplify and enhance our interactions with the world. On the other, we more and more relinquish control to experts when it comes to tasks that have become too burdensome or complex to manage ourselves.

Part of the issue with TAR is that it appears to fall somewhere in between: a powerful tool that offers a hands-on approach, but requires significant expertise to use properly. This oppositional reality may very well have been the barrier to a more seamless and enthusiastic adoption of TAR earlier on.

Here’s the thing, though. A hands-on approach is not the only way to dive into the world of technology-assisted review. In fact, it may be time for firms to consider the myriad benefits of an ongoing partnership with a team of experts who can address all things digital as the increasing complexities of electronic information continue to penetrate the legal realm.

Why does such a partnership make more sense now than ever before?

Because TAR isn’t really the issue: it’s the evolution of documents to data that is transforming the legal landscape. It’s not just document review that has gotten more complicated; so has the ability to connect all the dots and find the relevant facts of the case. A digital strategy is now called for in litigation, and so is the digital expertise to help execute it.

When legal practitioners understand this game-changing reality and its impact on litigation, they will see the benefit of partnering with experts who can not only help tame the eDiscovery beast with TAR methodologies, but can, at the same time, apply advanced technological tools to a population of collected documents, uncovering facts and relationships that can actually help with the case itself.

The positive effects of such digital tools in the hands of those with expertise in search, analytics and linguistics must be experienced first-hand to be fully appreciated. Luckily, there are service providers who would be more than happy to share what they can do. Perhaps then, the skepticism directed at TAR will be replaced with enthusiasm, especially when it becomes clear that the natural progression in eDiscovery isn’t for counsel to become a TAR expert, but to know the best place to find one.

Graphic: © Apinancgphoto | Dreamstime.com
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