King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy

Since I am about to refer you to three weighty articles by others, I will keep my own comment to a minimum. The context is the ability of modern litigation software to analyse documents more quickly and more cheaply than lawyers can. This was the subject of my own recent article The relevance of a computer called ‘Watson’ and a television game show to electronic discovery, which sought to explain in non-technical terms what you can expect from modern litigation software applications. The articles to which I now refer you take the discussion one stage further – if software can perform some of the functions of lawyers, and do so quickly and cheaply, then what are the prospects for lawyers? If the first stage of user acceptance is that the lawyers should understand what the software does, then the next is to emphasise that this is a promise of better things, not a threat. The argument takes us back to the machine-breakers of the early 19th Century and the economic theory named for their putative leader, Ned Ludd.

The discussion was kicked off by an article in the New York Times on 4 March. Headed Armies of expensive lawyers, replaced by cheaper software, it covered much of the same ground as my article, including references to ‘Watson’ and Jeopardy! and the marshalling of large teams of lawyers. Where I referred to lawyers having “hangovers, lovers, debts and day-dreams to distract them”, the NYT article said “People get bored, people get headaches. Computers don’t”. The NYT author, John Markoff, and I are clearly barking up the same tree at least in the identification of the technology trends. We differ as to the outcome or, rather, I see survivors and beneficiaries where Markoff emphasises losers

Markoff sets his article in a wide socio-economic context which it is worth expanding on. Technological improvements make old skills redundant and this has always been so – Ned Ludd broke up stocking frames in Leicestershire in 1779, and those who smashed automated looms in 1811 and 1812 claimed to follow “King Ludd”. The new looms could be operated by cheap, unskilled workers and could produce higher volumes more quickly and more cheaply than the skilled hand-loom weavers. There is a good Smithsonian article called What the Luddites Really Fought Against which explains how the quasi-legendary Ludd endures today.  Modern “Luddites” oppose new technology not by smashing it up but by rearguard actions to delay its introduction and by passive resistance. We all know lawyers who fit this description.

The “Luddite fallacy” identifies two main reasons why such innovations do not lead to long-term structural unemployment – one is that the reduction in prices opens the market to new buyers and consequent expansion of demand and production, and the other is that the general reduction in prices, increase in output efficiency, and broadening of the employed population expands demands for other products and services requiring new skills, especially as technology advances on several fronts at once. There is, inevitably, short term pain, particularly if these deep shifts occur in time of recession – as occurred in Britain at the end of the first decade of the 19th century when Luddite machine-breaking reached its peak in the post-war depression, and as is occurring now.

The NYT article refers specifically to three well-known providers of relevant software solutions, Clearwell, Autonomy and Cataphora and uses well-picked examples and quotations from them to illustrate the power of modern technology. On the face of it, the conclusions are not good news for lawyers – Mike Lynch of Autonomy says in terms that “legal is a sector that will likely employ fewer, not more, people in the US in the future”; he talks of ” a manpower reduction in which one lawyer would suffice for work that once required 500″ and to a 50% reduction in headcount – these two widely diverging statistics rather emphasise the article’s conclusion that “quantifying the employment impact of these new technologies is difficult”. Meanwhile, Herb Roitblat of OrcaTec points out that “the documents that the process kicks out still have to be read by someone”.

So, good news for software suppliers, then, and a depressing read for lawyers, who do not have the option of touring the countryside by night and smashing the machines like the original Luddites. Even the most optimistic exponents of the Luddite fallacy see nothing but pain in the short-term as skilled jobs are taken over by machines.

Enter Ralph Losey, who will have none of it. His article is headed NY Times Discovers e-Discovery, But Gets the Job Report Wrong. He endorses John Markoff’s analysis of the power of the new technology, but rejects his thesis on the impact on lawyers. He says this in opening:

The new developments in software featured in the story may disrupt the job market for contract lawyers, but overall will lead to more jobs and much more highly skilled jobs. The NY Times reached the wrong conclusion because it missed at least three technological and legal factors that impact the e-discovery job market for lawyers:

1.    New software also creates new highly skilled legal work;
2.    The information explosion counter-balances increases in ESI review productivity; and,
3.    Electronic discovery is avoided in most law suits today, and as the utilization rate increases over time, so to will the demand for e-discovery services.

… and his first sub-heading reads Lawyers will be Retooled, Not Replaced.

Ralph Losey’s article is all meat, and I will simply point you to it rather than attempt to summarise it. It is broadly in line with the criticism of the Luddite fallacy described above, suggesting that lawyers will need new (and more interesting) skills and that their market will expand as prices fall and the market grows. One of the slides in my standard E-disclosure talk is headed “New set of skills” and makes much the same point as Ralph does; my emphasis is more on new skills of argument and persuasion backed by the confidence which comes from knowing your case, correctly assessing its strengths and weaknesses, understanding the technology and, as a result, having a clear idea of the relationship between cost and value. I also emphasise the marketing value (to the firm and to the individual) of having these skills. An increasing amount of my time is devoted to this positive messaging as a counterbalance to the fear, uncertainty and doubt derived from the cases.

The missing element is not the technology, which leaps ahead yearly, but the understanding of what the technology can achieve. As Ralph puts it in his conclusion, “most negotiating tables in the world today have never even heard of artificial intelligence, much less its application to the resolution of the lawsuit at hand”. He rightly sees a New York Times article, with its potential to reach the decision-makers and not merely the executants, as being an important step in the right direction, notwithstanding that he disagrees with its conclusion.

The third article worth reading on this is by Steven Levy on the Lexician site, whose tagline is “In legal, everyone’s smart. The winners work smarter.” His article is headed Watson Takes on E-Discovery although it does not in fact refer to ‘Watson’. He sees the NYT article as stating what seems obvious – that “computer analysis is making huge inroads in e-discovery and is in many cases replacing attorneys (and their jobs).” He points to the “change adoption curve” showing how technologies pass through stages from the innovators through early adopters, and to the early and the late majority, dropping off when only the laggards are left to convert. Mainstream publications such as the New York Times, he says, usually write about trends “as innovators give way to early adopters”. He is right to say that the article will put this trend on the radar of all the relevant decision-makers with the message that “inefficiency and high billing rates for e-discovery will no longer be acceptable”. He sides with the NYT in concluding that the combination of computerisation and off-shoring will reduce the chargeable hours for lawyers.

Let us accept that in purely numerical terms this is probably right. There will be “victims”, just as people lost their jobs in clothing manufacture thanks to the inventions of Arkwright and Crompton. There will be new types of job, however, including those requiring the legal project management skills which Steven Levy emphasises. Who will get those new jobs? It will not be the Luddites in the modern sense of that term, but those who adopt the approach taken by Ralph Losey in his article, and by me in my talks, and who identify and acquire the new skills needed for the changed landscape.

A good starting-point is to understand what these technologies can do, how they help, what they cost and what they save. The ‘Watson’ / Jeopardy example is a good place to begin.


About Chris Dale

I have been an English solicitor since 1980. I run the e-Disclosure Information Project which collects and comments on information about electronic disclosure / eDiscovery and related subjects in the UK, the US, AsiaPac and elsewhere
This entry was posted in Clearwell, Discovery, eDisclosure, eDiscovery, Electronic disclosure, Predictive Coding. Bookmark the permalink.

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