Technology’s effect on law

Technology has profoundly changed the global marketplace – machines have replaced humans in virtually every sector. But many lawyers felt that the legal profession was insulated from the changes that rocked other industries. They were wrong.

The legal profession is about to experience the same sort of change that revolutionized the automobile industry in the 20th century. Computers are replacing much of the work that lawyers do.

This evolution took a giant step when two US courts endorsed “predictive coding” — sophisticated algorithms that let computer software decide how relevant documents are.

Many lawyers have probably not even heard of predictive coding and you’re unlikely to see it on any law-themed TV shows. But lawyers who don’t adapt to e-discovery technology may find their jobs in peril.

More technology, more documents

Law firms used to use eager associates to review documents for litigation. The drudgery of turning pages was how firms learned their cases and found evidence. It was also how they made piles of cash.

As emails became the norm, the volume of documents exploded. A case that might have had a few hundred documents in the 1970s had thousands, even millions, of documents in the 1990s.

The onslaught was good news for law firms and bad news for clients. Costs and complexity rocketed. And the concept of a “smoking gun” email drove big cases, made headlines, and meant emails had to be scrutinized line by agonizing line.

Reviewing technology and tools

Technology companies responded by developing tools that made reviewing documents easier and more efficient. But still people – with billable hours – had to check each email and document for evidence. Ironically, computers had increased the need to manually review documents.

An industry of temporary lawyers and offshore review services sprang up, which helped control spending, but didn’t solve the core problem: each new case had more documents than the last.

Search term and other crude data-limiting techniques to cull and manage data helped, but lawyers, being lawyers, found ways to fight about search term lists.

Artificial intelligence for legal tasks

Many people have argued that the solution is to use artificial intelligence to review documents. No more search terms or armies of expensive associates – computers can do the job instead.

But it’s hard to introduce something new in law. Someone – ideally a judge – needs to rule on whether this new approach is acceptable. With a precedent set, more clients can expect – and demand – computers to replace their lawyers.

Well, that day is here.

On April 25, 2012, United States District Judge Andrew Carter upheld a lower court ruling by Magistrate Judge Peck, which specifically approved the use of predictive coding. Judge Peck’s decision was the first case to recognize predictive coding as an acceptable way to search for electronically stored information.

E-discovery in law

Judge Peck recognized that manually reviewing documents is now too expensive – especially when millions of documents are involved – and he dismissed the idea of a manual review as the “gold standard.”

“That is a myth,” he said. “Statistics clearly show that computerized searches are at least as accurate, if not more so, than manual review.”

Judge Peck also took a dim view of keyword searching, calling the technique often “over-inclusive” and “not very effective”. In too many cases, he said, “the way lawyers choose keywords is the equivalent to a child’s game of ‘Go Fish’”.

The opinion paves the way for a new era in the legal industry. Shortly after the decision, a Virginia state court judge allowed defendants to use predictive coding to process and produce electronic data. So law firms should train lawyers on – and tell clients about – this court-endorsed technology.

The benefits of predictive coding

While many lawyers fear the changes in the industry, there are tremendous benefits associated with predictive coding.

• Predictive coding lets lawyers quickly cull documents to perform an early case assessment.
• It will cut out the inherent inconsistencies in a subjective manual review by several lawyers.
• Attorneys can also focus more on important legal issues rather than reviewing hundreds of thousands of irrelevant documents.

If you’re not yet ready for the evolution, the good news is that in its existing state predictive coding does not entirely replace humans. Lawyers still need to train the computer to cull the wheat from the chaff.

That said, the legal profession is on the verge of profound technology-driven change. Those who embrace this change will be the most effective advocates of the future. 

For more information about predictive coding, please contact 

Timothy Harkness 
+1 212 230 4610  

Dana Post
+1 212 277 4082