Adjunct Law Prof Blog

Editor: Mitchell H. Rubinstein
New York Law School

Saturday, June 4, 2011

Software to Replace Lawyers? It's true.

Armies of Expensive Lawyers , Replaced By Cheaper Sofware is an interesting March 4, 2011 New York Times article. It is about how "e-discovery" can be used to find documents with key words or phrases. This cuts down dramatically on lawyer time. This can save the client a significant amount of money. E discovery is also much quicker. The  article states:

But that was in 1978. Now, thanks to advances in artificial intelligence, “e-discovery” software can analyze documents in a fraction of the time for a fraction of the cost. In January, for example, Blackstone Discovery of Palo Alto, Calif., helped analyze 1.5 million documents for less than $100,000.

Some programs go beyond just finding documents with relevant terms at computer speeds. They can extract relevant concepts — like documents relevant to social protest in the Middle East — even in the absence of specific terms, and deduce patterns of behavior that would have eluded lawyers examining millions of documents.

“From a legal staffing viewpoint, it means that a lot of people who used to be allocated to conduct document review are no longer able to be billed out,” said Bill Herr, who as a lawyer at a major chemical company used to muster auditoriums of lawyers to read documents for weeks on end. “People get bored, people get headaches. Computers don’t.”

This raises a host of legal issues. Is e discovery sufficient? With respect to a lawyer who engages in e-discovery as opposed to regular discovery, is he or she breaching the standard a care? What if something is missed or a mistake occurs?

Law review commentary on the litigation issues raised by e discovery would be most welcome. 

Mitchell H. Rubinstein

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Surely the issue is more, will the legal profession allow e-discovery to be carried out within a practice? If the partners prevent it, then customers will have no choice.

For sure, another company in their competitive sphere might take advantage and become known as the go-to firm for e-d, but in general, reputations in the legal profession are not earned by being the most affordable.

Posted by: BoardgameBeast | Jun 5, 2011 5:57:34 PM

I am glad you are bringing this up. Point of clarification - eDiscovery typically refers to the review of electronically stored information (ESI). Simply put, it can mean a linear review of a million emails - viewing them onscreen rather than printing them out. Most review of ESI tends to resemble the room full of reviewes and bankers' boxes of paper, with computers and monitors in place of the paper.

What the NYT article was talking about was that when computers and electronic data are involved, massive computing power can be brought to bear to achieve cost- and time-savings. This ranges from simply identifying exact- and near-duplicates, which is now mainstream, to using sophisticated algorithms to predict responsiveness, privilege, etc.

So "eDiscovery" is clearly mainstream, defensible practice. Use of *automated review in eDiscovery* or *predictive review in eDiscovery* to substitute for eyes on documents/screens is the cutting edge that is increasingly being used by the most forward-thinking attorneys in corporations and law firms.

Happy to speak more about this with any interested.

-Phil Strauss
Senior eDiscovery Consultant
Servient, Inc.

Adjunct Professor of Business Law
Haas School of Business, UC Berkeley

Posted by: Phil Strauss | Jun 6, 2011 11:17:20 AM

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