Lawyers, Replaced by Cheaper Software?

You know something has hit the big time when covered by the New York Times.  On March 4, eDiscovery did just that as the topic of the New York Times article by journalist John Markoff -"Smarter than you think:  Armies of Expensive Lawyers, Replaced by Cheaper Software".  While a good thing that eDiscovery is finally getting international attention, it is a bad thing that the Times suggests that software, particularly “cheap” software, is replacing lawyers.  Take it from someone on the front lines - nothing can be further from the truth.  Ralph Losey, a self proclaimed eDisocovery lawyer and the face behind the eDiscovery blog - eDiscovery Team - says it best in his article "NY Times Discovers e-Discovery, But Gets the Jobs Report Wrong".

"Apparently the NY Times has fallen for what economists call the Luddite fallacy, the erroneous assumption that new technologies increasing productivity necessarily reduce employment. As economist Alex Tabarrok observed: “If the Luddite fallacy were true, we would all be out of work because productivity has been increasing for two centuries.”

John Markoff is a well respected technology journalist, but he clearly knows nothing of lawyers or eDiscovery. Unfortunately, the software companies he chose to quote are those that are currently miss reading the current and future need. Anyone who thinks that technology will ever replace lawyers simply has not spent time in the trenches. Mr. Markoff, you have been lead astray by marketing I fear. Technology by itself is not a silver bullet. Any credible software company will tell you just that. As Ralph Losey so eloquently observes:

"The [NY Times] article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own."

The biggest misconception today is the notion that lawyers must understand and utilize advanced technology.  This, I submit, does nothing but distract lawyers from what they have been hired to do - deliver legal advice.  Lawyers should focus on discovering and presenting the facts.  That job is hard enough without also keeping up with the latest trend in “predictive coding” algorithms, as example.   Don't they have enough to keep up with?  That does not mean that lawyers should not be familiar with and utilize technology.  They should.  It does not mean that advanced technology is not an incredibly useful tool.  It most certainly is.  Lawyers have historically relied upon non-lawyer professionals such as legal secretaries, paralegals, technologist and administrators to keep up with such things.  A great lawyer once said, and I am paraphrasing –

"I don't really know much about technology. I barely know how to use a computer. What I do know, however, is how to win a case. Today winning means using technology - the best that I can find. I don't really need to understand it or keep up with technology because I have surrounded myself with smart folks that do that for me. My focus is in understating the facts and fitting those facts to the law, not keeping up with the latest technology."

When a trial lawyer walks into court, she wants to be fed the handful of documents that matter.  Spending countless hours sorting through a bunch of useless material or spending days learning technology is not a good use of a lawyer's time.  Sure, they have to use technology - printing reams of paper simply is not the way things are done today. However, most lawyers simply want to open a folder and browse relevant material - the hot documents.  Historically, we got lawyers what they needed by plowing through boxes of paper and making many copies of those documents that are important.  Many trees were sacrificed.  Today, there are smarter, better and faster ways utilizing technology as tools.  Utilization of those tools, however, is less about technology features and more about process and how that technology is applied in specific situations.  The feature gap between the various technologies is closing.  In a few years, most eDiscovery applications will not be distinguishable between another in terms of features and functions.  They will simply look and present information differently.  Most applications, despite what some would have you believe, use the same underlying algorithms and programming.  The notion that some artificial intelligence (AI) is going to emerge and replace lawyers is science fiction.  The practice of law is based upon precedent – history.  We have been here before with technology - many times.  This is not the first technology revolution in the legal industry.  There have been several.  That history is much more instructive than speculation and predictions about an uncertain future. 

The Copy Machine

There have been many predictions that photocopiers will eventually become obsolete as information workers continue to increase their digital document creation and distribution, and rely less on distributing actual pieces of paper. The first widely used copy machine for offices was invented by James Watt in 1779. It relied on physically transferring some of the (specially formulated) ink from an original letter or drawing to a moistened thin unsized sheet of paper by means of a press. The copy could then be read from the obverse side. The system was a commercial success and was in use in for over a century. The modern copy machine was introduced by Xerox in 1949 when it introduced the first xerographic copier called the Model A. Xerox became so successful that, in North America, photocopying came to be popularly known as "Xeroxing." Today, photocopy technology has gone digital and in addition to producing a paper copy of a document, most copiers today also create a digital copy of a document in various formats, the most common being PDF and TIFF. While digital technology has indeed changed things for the better, it is safe to say that it will be many decades before copy machines become obsolete, if ever. 

The Computer

The most dramatic impact on business as a whole, and certainly the legal profession, has been the personal computer. The PC first began hitting the office place in the mid-80’s, but were not commonplace until the late 80’s and in the case of the legal professionals, the early 90’s. As of June 2008, the number of personal computers in use worldwide hit one billion, while another billion is expected to be reached by 2014. I remember when computers began hitting legal professional’s desk. Most were intimidated, many were threatened and only a small minority of us embraced technology in those early years. It has taken more than two decades just to get lawyers to accept hosting and reviewing documents digitally. The PC has dramatically changed the practice of law in a very big way, but it has taken literally decades to creep into the main stream. It will take decades for lawyers to accept anything that remotely resembles AI. Sure, like everything else, there will be early adopters. Those risk takers that don’t mind getting burned by the buggy unproven technology that is not currently widely understood, nor supported. Technology will not replace a lawyer or her staff anytime soon. Ralph Losey and I share a dream:

“I dream that someday this may happen, in the far distant future. We lawyers can then be freed to focus solely on the law. We can use Artificial Intelligence agents and truth detectors to find the facts, to uncover the whole truth... But as a person who labors in the fields of law and technology every day, I can tell you that we are nowhere close to that day. Turning all discovery over to computers is a Utopian dream that is centuries away, in spite of the New York Times suggestion to the contrary.”

Voice Mail

About the same time as computers started hitting lawyer’s desks, voice mail began to be deployed. Most lawyers hated voice mail at first. Many initially refused to use it at all. They found it impersonal. Secretly, I think some hated vMail because it made them more accessible. For non-lawyers, voice mail was a god send. Gone were the days were we stood outside a lawyer’s office waiting for her to get off the phone. Gone were the days were you needed to leave a message with a secretary and hope that your message got top billing, or route a piece of paper to the lawyer through the office snail mail. The old timers will remember those routing slips and inboxes full of paper. Many still have those in-boxes full of paper, by the way, despite widespread adoption of digital technology and digital methods of routing. VMail therefore made communication more efficient. Did it displace humans? No, but what it did do is allow legal secretaries to spend more time doing actual work and less time answering phones, taking messages and tracking down lawyers.

Email

For better or worse, email has revolutionized the nature of business and personal communication around the world. Email has invaded every aspect of our lives. Email originated in the 1960’s, but in those early days was limited to use by primarily educational and governmental institutions. It was not until the mid-late 1990’s, however, before email was in wide use. Like every technology before it, lawyers were late adopters. In fact, some lawyers still do not use email directly today. It is safe to say that email has had a dramatic impact on how we communicate. Some of that impact has not been positive. Many predicted that email would have a dramatic adverse effect on many things, most notably the US Mail. Because people today send more email than they do letters, there has been a perception that there has been a marked decline in the amount of mail delivered. However, in 2009 the United States Postal Service (USPS) delivered over 177 billion pieces of mail with revenues approaching $70 Billion. It is estimated that in 2010, that figure exceeded 200 billion pieces of mail. While the USPS no doubt has had profitability issues and email is without a doubt having an impact on the USPS, it does not appear to be replacing the mail man anytime soon.

Conclusion

AI is decades and possibly centuries away from having any real impact on eDiscovery. Predictive coding, machine learning, or whatever buzz word of the day is chosen for emerging advanced technologies are indeed beginning to emerge and are proving to be very useful tools in the right hands with the right process. However, to claim that “Armies of lawyers are being replaced by cheaper software” is simply preposterous. As Ralph Losey points out, new and better ways of eliminating irrelevant information is in fact changing how we manage, review and produce documents. Technology is demanding that we become more efficient, which will in fact mean that we are beginning to review a smaller percentage of documents collected. A recent blog post observed – “Bottom line for lawyers is to embrace their inner “shark.” No, not the shark practice, predatory being, but the instinct to “keep moving or you will die.” Lawyers will need to understand technology, embrace it, and continuously update their knowledge to survive.” Becoming more efficient is something that has to happen anyway. Data volumes are going up, not down. In most cases there are far more documents available for review than can be reviewed, so a better way was/is enviable. Technology should not be viewed as a threat to the need for humans. As these technologies mature, the need for a sound human driven process is going to be of increasingly greater importance. Unfortunately, articles like the one in the NY Times do not help that cause and only serve to place technology in a negative light in an economy where lawyers are under increasingly greater pressure to reduce the costs of discovery.