Richard Susskind’s long-term prediction that the work of lawyers will break up into “identifiable and discrete pieces” applies here and now to electronic Disclosure. The discrete stages of first identifying and culling, and only then analysing, document populations do not require either the same tools or necessarily the same people to perform them economically.
Professor Richard Susskind’s new book The End of Lawyers gets an outing in The Times this morning, with an invitation to readers to comment on his predictions. I doubt that the Times will take 1,250 words by way of comment on one narrow aspect of Susskind’s chieromancy, so I will put them here. The narrow aspect in question is e-Disclosure / e-Discovery. In that area, at least, I agree with him.
Susskind’s predictions are in line with, and an extension of, those he set out in his 1996 book, The Future of Law. The new book will doubtless be as much mocked as his earlier work was in its time. Since many of his 1996 predictions have already come true, he can afford to let the mockers mock. I went to Leeds at the end of last year to hear Susskind talk about his predictions, then ten years into the twenty year evolution which he had estimated. He expressed regret for only one thing – his use of the word “paradigm” which, he acknowledged, had not lived up to its early promise as a grand way of saying “model” or “collection of assumptions”. Otherwise, he was content that the legal market was working out nicely in line with what he had foretold.
He did identify one activity which had hitherto defied the trend from hand-crafted lawyerly output to technology-driven commoditisation. That was litigation. I made reference to the Susskind model in an article published by the Society for Computers and Law in December 2006. Called Uncovering the Mysteries of Disclosure, it concluded that the Susskind principles applied as much to suppliers of litigation software and services as they did to lawyers. Suppliers will, I said, “realign their offerings” as new applications (and I might have said new competition) “force a reappraisal of what they are selling and to whom”.
My focus then was the possibility that lawyers might do for themselves what they had hitherto paid others to do. The key word was “might” – I was not advocating that they should necessarily do so, but suggesting that the possibility that they might do so would be enough to alter the shape of the market.
I would go further now, and say that the old approach to litigation, and specifically the handling of Disclosure, will change – must change – and that the change will depend on more than just technology. The suppliers of software and services will have to change to meet this. I believe the end-result will be for their benefit as well as for the benefit of the market, both the lawyers and their end-user – the litigating client.
Frances Gibb, the Times’ legal correspondent, says this in her summary today of Susskind’s book:
“The driving force towards the end of lawyers as we know them is twofold: information technology and what Susskind calls the market pull towards commoditisation – carving up a lawyer’s job into identifiable and discrete pieces that can be outsourced and done more cheaply by others. As a result, the jobs of many traditional lawyers will be substantially eroded and often eliminated”.
The break-up of Disclosure – traditionally a single task – into “identifiable and discrete pieces” will follow the conjunction of two things – better software tools doing narrower functions extremely well, and a move by the courts away from a one-hit order for Disclosure and towards a set of stages. These will aim to find the documents of maximum value with minimum time and expense, proceeding later (if the action runs) to document stores with a less good ratio of accessibility to likely value.
Those interested in this area will know that KPMG recently published a survey which reported widespread dissatisfaction with case management as it applied to electronic sources of information. They called for better training for judges. I am about to embark on exactly that – see my post Training for judges in e-Disclosure and the main article on the SCL site to which it refers..
Preparing for that (we start in late November) involves looking at the various types of applications which exist for different purposes, and at the CPR and its US equivalent, the FRCP Amendments of December 2006. The applications which are best at carving intelligently through millions of documents are not the ones used for lawyer analysis – nor indeed are the same human skills (and hourly rates) necessarily the same for both functions. The conclusions you draw from a first-pass review may alter fundamentally your approach to the proposed litigation, and with it your thoughts as to what tools and teams you would use.
Yet we persist in treating Disclosure as single seamless function. Courts make formal orders pursuant to Part 31 CPR, and parties go away and try to comply with them as best they can.
(Before Richard Susskind’s critics turn their remaining bullets on me, it is important here to stress firstly that I am well aware that many lawyers and not a few judges are well attuned to all this, and further that many cases do not warrant heavy attention to the Disclosure process. That does not invalidate the general conclusion).
Sometimes it takes a pithy phrase to help one express what is actually obvious. I was talking recently with George Socha, one of the leading thinkers – and doers – on e-Discovery in the US, during a break from a conference which covered all these topics. George observed that the lawyers had not shifted their attention from the traditional lawyerly tasks of review and analysis. What matters far more at the outset is a focus on the identification and collection stage. Get that right, and the analysis can then be conducted over a narrower and richer range of documents.
This is not itself ground-breaking stuff, nor is it novel that courts may use their powers to order staged Disclosure. If you bring both together, however, and add the diverse range of software tools which are available, you see the potential for a judge who understands both the difficulties of vast document populations and the horses-for-courses potential in technology to make orders which match the technology to the problem. That may result in different technology, and perhaps different people, being applied to the identifiable and discrete stages.
I expand on this in the recent SCL article to which I have already referred. The point here is that the term “identifiable and discrete stages”, used to describe Richard Susskind’s predictions for the fragmentation of the practice of law generally, fits exactly the model I foresee for e-Disclosure.
As my SCL article says, I see this as good news for suppliers. There will perhaps be more players offering narrower and more specialist services, or perhaps the existing suppliers will (as I suggested in December) realign their offerings to meet a more fragmented series of stages but over a larger number of cases. There will be a role for someone to oversee the different horses in their varying courses, which may be for one of the existing big suppliers (who in fact already operate like this to a great extent) or for people like me.
One component in Richard Susskind’s original premises was that change happens when one supplier “breaks ranks” with the rest, taking advantage of new technology to deliver a more efficient service. The brave bit of such a step is that (in Susskind’s model) it usually implies a cheaper service – I don’t mean lower rates per hour or per Gigabyte but better focused spending. The return comes in more work, as clients recognise the value they are getting and are tempted by the improvement to engage in more or newer business activity – in this case litigation.
Sooner or later, one supplier of litigation software and/or services will break ranks with the rest and come up with a business proposition which does not just attract business to them but increases litigation business generally. The Master of the Rolls spoke recently to a convention of US lawyers about the “evils” of cost and delay which drive all but the rich out of our courts. Litigation practitioners need to get them back again. Document-handling is a major component in both the cost and the delay, and the suppliers of document solutions are the key to that battle.
Susskind is not predicting (or I do not read him as predicting) mass redundancies amongst lawyers, any more than I predict a falling-off of work for e-Disclosure suppliers. The needs of client businesses will change; technology will advance; the nature, or at least the practice, of litigation must alter or be drowned in an ocean of information. The components of the work will change and the skills needed to cope with it will be different. The same people, or people of the same kind, will still be needed to handle the “identifiable and discrete stages” of Richard Susskind’s predictions. For those who can handle the changes, there will be new work to be won.
Please do not hesitate to contact me if you want to talk about – or argue with – anything said in this article.