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Bespoke or Be-Gone: Lessons from the E-discovery trenches

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Make way for John Henry, Round 2 . Just as the steam-engine rolled over John Henry, recent advancements in e-discovery technology similarly enable machines to accomplish the work formerly performed by a team of 500 lawyers, reports the New York Times. Moreover, not only do computers perform e-discovery less expensively, but also with a precision that surpasses human reviewers’ sixty percent accuracy rate.

Not everyone buys that e-discovery poses a death-knell for lawyers. Some predict that declining costs of e-discovery will stimulate more litigation and in so doing, generate a need for more lawyers. After all, right now, high costs of e-discovery often compel both sides to cave early, or may deter certain cases from even being filed. Still, even reduced discovery results in more cases being brought and/or heading to trial, overall, there will still be a net loss of lawyers since trial doesn’t require the same number of bodies as e-discovery.

Others, like Corinne Tampas, a Freelance Attorney contend that simplification begets complexity, which in turn, keeps steady the demand for lawyers. Tampas explains that even as computers appear to simplify the task of e-discovery, this in turn will necessitate the need for lawyers who understand the process and can manage e-discovery or help to strategize around the new challenges. While I don’t disagree with Corinne- indeed, even the NYT piece concedes a need for lawyers who can operate the technology – there’s no doubt in my mind that technology will contract the number of lawyers needed – just as online banking, computerized accounting programs and travel websites diminished the demand for human tellers, CPAs and travel agents. Of course, where Corinne is spot-on is that for those lawyers with the specialized skills at the top of the heap who can head those strategy teams, there’s still plenty of money on the table – a point also noted by Ralph Losey in the e-Discovery Team Blog. Thus, those lawyers who’ve been diligently tracking e-discovery caselaw and developments for the past few years, will probably find more doors opening as we transition to an automated system.

In fact, I wonder why the contract lawyers who spent months or years on the front lines of document review, weren’t spending more time educating themselves about e-discovery or blogging about how the review process works. More than any other group, they could have capitalized on their birds-eye view of e-discovery to serve as sherpas in this intersection of human know-how and tech. But they chose to gripe about poor working conditions or offshoring document review to India which is fine, as far as it goes, but also a sad example of how perpetual complaining can lead to missed opportunity – because as many of these lawyers must now concede, they’re readily replaced by technology.

As for the impact of these advancements on solos, the e-discovery developments are a reminder that we can never let our tech skills fall flat. At some point, those of us who litigate will need the ability to manage e-discovery and if we can’t afford these skills in-house, we’ll need to stay abreast of trends so that we have enough knowledge to outsource the tasks (so check out Sharon Nelson’s Ride the Lightening! We don’t see eye-to-eye on social media, but she is at the forefront of e-discovery).

We also can’t afford to grow too smug and assume that computers can’t replace what we solos do in our line of work. Not so. Though I don’t think that Legal Zoom has cut into solo market share (in many cases, LZ represents the pool of cases that many of us never deigned to accept because the clients wouldn’t pay), there are lots of other areas where many solos don’t act as much more as form-fillers or check-box checkers. If we can’t offer a value-add over what machines can do, then we face the same risk of obsolescence as contract lawyers – or John Henry.
Bottom line, my solo friends: In this 21st century world, either bespoke or be-gone.

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