NEW POST: Thoughts on that NY Times article on e-discovery – “It’s the technology, and it’s a game changer”

7 March 2011 — In case you missed it over the weekend, the New York Times published an article titled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behavior”.   It discussed issues that are not news to us in the market:  the explosion of electronically stored information, the technology used to analyze that data (mentioning Autonomy, Blackstone Discovery, Cataphora and Clearwell Systems) and how all this has disrupted the legal job market (on the heels of the legal sector losing 2,900 jobs in February in the latest report).  

For the full New York Times article click here. 

And as the article rocketed across Twitter, Facebook, JDSupra, etc. over the weekend a number of the leading lights of e-discovery and technology offered their critiques of the article.  Here are just a few: Ralph Losey, Ron Friedmann, Randall Parker and Stephen Levy.

As we have discussed in numerous past posts, the significant impact of this technology has been not on what the New York Times calls the “expensive” lawyers but on those of us in the lowest paid band  –  contract lawyers. 

When we started The Posse List in 2002 our base was contract attorneys, the lawyers who worked on document review and production — the “right side” of the EDRM.   These cases required an army of attorney and paralegal document reviewers — called in like a “posse” at the last minute, as needed.   Law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis. 

But as document processing and analysis technology improved, the need for these large numbers dwindled.  But there was an increase in the need for greater sophistication and expertise in ESI management and e-discovery.   Now our members include contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, all manner of e-discovery companies, legal media entities, and numerous legal support professionals.   

The first task in any transition to to understand the technology.  All of us have been exposed to some of the technical hurdles that litigation support teams face, but you need a deeper understanding of them.  One way to do that is learn how data is processed for a case.  We post numerous webinars, webcasts and events on technical training.    

As Ralph Losey says in his critique of the New York Times article, attorneys need to retool.  Quoting Ralph: “The new technologies advancing search and review automation discussed in the story do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The 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”.

It is why at The Posse List we have been publishing posts which we hope are found helpful such as A lawyer must be a technologist and Transitioning from law practice to more technical litigation support.

You need to grasp the technical challenges that are presented by the data processing process.  Along the same lines, learn about data acquisition and preservation methodologies. You know how important a chain of custody is and why the hash value of the data you present in court needs to match what was initially acquired.  But can you make a bitstream copy of a client’s hard drive with a full audit trail? 

The biggest issue for attorneys making the transition is the need to bridge the gap between legal and technical within e-discovery.   Access our Electronic Reading Room site (click here) to bone up on the basics – and the advanced bits – of e-discovery.

And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda.  Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”.  While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers:  the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it.  And no more so than those of us involved in e-discovery.

It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists go to our home page and click on “Subscribe” in the top right-hand column).

You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found.  It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management.  You can download it for free by clicking here. 

Or look at our weekly “Top 10 … plus more” list of interesting e-discovery blog posts, and vendor views on electronic discovery related issues which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for the latest from both click here).

And go to a legal technology conference near you.  All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc.  Many allow free access to students or limited 1-day passes for free admission.  We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia.  We meet vendors, gain info — and sign up vendors who post jobs on our job lists.  There are conferences all over the country and the world and we post a list every week.

Our membership list is diverse — contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery companies, legal media entities, and numerous legal support professionals — and we are trying to be helpful to all of our members.