Technology is astounding. Not just in what it can do, but in the need it creates to iteratively morph and self-perpetuate as one tool leads to a need for the next.
eDiscovery is a perfect example. Before we put the “e” in front of it, discovery in litigation was mostly an exercise in the exchange of bankers’ boxes filled with documents that opposing counsel would review for evidence. Simple concept, right?
Today, although the goal of discovery has remained exactly the same, the tools and technology created to address it comprise a billion dollar industry. In that small window between asking for and receiving documents for litigation or investigations, there are now multiple robust layers of advanced technology that exist primarily because other evolving technologies have enabled us to create more stuff than we can possibly manage any other way. It’s “iterative morphing” at its best.
Such tools and technologies in the legal realm were on bold display at the recent Legaltech event in New York City. A sea of computer monitors sported multi-window displays of sophisticated analytics for data processing, matter management, hosting platforms, predictive coding—you name it, there’s a technology for it, and often more than one.
What’s interesting, though, is the apparent disconnect between the “Wow!” of the exhibit floor and the reality of how lawyers understand and actually use “legal tech” for their matters. Because just steps from the exhibit floor were panel discussions where attendees showed scant evidence of living in the digitally-driven world on display, but rather appeared quite rooted in decidedly less “techie” ways of doing things. This seems especially true for eDiscovery solutions.
According to the latest ABA Tech Survey (2016), lawyers don’t use many of the newer technologies that are available today and remain skeptical about what they have to offer. When survey respondents were asked how they review and process eDiscovery, for example, some salient findings were:
- 43% don’t use any sort of e-discovery review solution and one-third don’t use any sort of cases analysis solution.
- The primary tool used to review e-discovery materials remains keyword searching (78%). Only a few used concept searching and predictive coding. These numbers have changed little from last year.
- Only 15% report using predictive coding to process or review e-discovery materials. The lowest percentage of use was at solo shops (7%), with the highest being at firms of between 100-499 lawyers (39%).*
Although the survey skews slightly in favor of smaller firms, these numbers are revealing. In areas where technology has made the most compelling inroads, for early case assessment, key document identification and—the true behemoth—document review, most lawyers aren’t turning to advanced technological solutions, they’re sticking with keyword search and linear review.
The main reasons? We’ve heard them before: newer technologies are seen as too expensive (among other revenue concerns), the learning curve is too steep, the technologies aren’t trusted.
Closer examination would show that these reasons don’t really hold up anymore. Used well and with appropriate QC, advanced technological tools and services are more cost-effective, have been found defensible, and provide benefits that incumbent methods cannot.
And, although it may be true that the learning curve with certain technologies may be a challenge for counsel, it needn’t be their lonely burden. Lawyers do have an ethical obligation to keep up with relevant technology so they can effectively and efficiently represent their clients, but this can mean either becoming proficient in new technologies or hiring expertise—often the best solution. There are expert service providers at the ready with whom they can collaborate to appropriately leverage technology without having to learn the nuts and bolts of every new tool.
To be fair, there are early-adopting firms and corporate counsel who are embracing new technologies along with those who say they plan to do so in the near future. One recent report on legal analytics by CTRL notes a major uptick in the “perception of analytics’ importance” and an increase in the number of organizations that say they “plan” to start using analytics for eDiscovery in the next 12 months.
Perceptions and plans aren’t quite the same as actions, but at least this reflects a growing awareness that the technology ship is well under sail and it’s best to be aboard before seas become even rougher.