It is always hard to know what weight to attach to anecdotal evidence about the litigation and e-Discovery market place. I personally take notice of sniff-the-breeze impressions derived from the people I talk to and what I read. It is fair to say, however, that most of us rate our own ability to detect trends, right down to the moment when someone invites us to give investment advice based on that gut feel. One’s reluctance to go that far does not invalidate an intuitive feel, but that intuition is no substitute for hard facts.
Even hard facts fall into different categories: actual instructions given to lawyers or signed contracts for the supply of litigation software or services are not necessarily publicised and, even if they are, the task of assembling sufficient data to point to a trend is non-trivial. One step back from that, in terms of statistical value, are the results of surveys of representative elements in the marketplace. Even then, however, one needs to be cautious. Who is asking the questions? Were the questions framed in a way designed to elicit one answer rather than another? Do the respondents have a motive for weighting their answers in one direction or another? At least if you ask the questions yourself, you can evaluate all that by applying those subconscious filters which take body-language, tone of voice and similar subliminal factors into account in considering an answer.
Litigation recruitment consultants Cowen Group are in a better position than most to conduct surveys which are credible. It is not just that their business necessarily brings them into contact with those who actually do the work, but that David Cowen is the most assiduous collector of that anecdotal, see-the-whites-of-their-eyes information which backs up data collected more formally by a survey. He seems to know everybody, and any conversation with him at a conference is likely to be interrupted several times whilst he picks up scraps of information and exchanges views with passers-by.
The Cowen Group has just published its survey of Q1 Critical Trends. Its headline prediction is that 215 new e-Discovery jobs will be created in the US in the next six months. Behind that are figures for hours worked, increases in new and existing case workloads, and upward trends in recruitment, outsourcing, insourcing by corporations, and planned investment.
The results put flesh on the impression which I gained at LegalTech in February and which I wrote about in my article LegalTech optimism points to busy e-Discovery year ahead. It is also consistent with the Gartner report on e-Discovery software which, as I have noted before, points to an upturn in non-US e-Discovery as well as that in the US.
None of these says anything direct about the UK market. There are two main reasons to expect that to rise: one is the intuitive feel derived from talking to lawyers, litigation support managers and suppliers; the other is the by now unavoidable message about increasing awareness of electronic disclosure on the part of judges and clients, coupled with the enhanced risk of expensive and high-profile failures covered in my article Al-Sweady v Secretary of State for Defence: blame for e-Disclosure failures gets personal – and public. A third element, and one not to be ignored, is the growing realisation (again, anecdotal, but valuable nevertheless) that there is work to be won here.