The dust is settling on the debate aroused by the John Markoff article in the New York Times of 4 March headed Armies of Expensive Lawyers, Replaced by Cheaper Software. We can’t have that, so I thought I would keep the ball in play for a bit with a round-up of some of the comment stirred by the article. The consensus, for those in too much of a hurry to get to the end, is that the skills matter more than technology, as long as those skills include the ability to choose the right technology for the case.
As with all good journalism, the basic premise of the NYT article appears from the heading – technology is advancing at such a rate that the expensive (and profitable) contribution made to electronic discovery / disclosure by lawyers will become unnecessary. Computers, so the argument runs, will perform searches more efficiently, more reliably and at significantly lower cost than lawyers can achieve, so the demand for lawyer hours will decrease significantly with a consequent reduction in employment prospects for lawyers.
To recap, Ralph Losey was the first out of the traps with a contrary view. His article was headed NY Times Discovers eDiscovery, but Gets the Job Report Wrong. New, highly-skilled jobs will appear, he said, and the vast increase in electronic material will counter-balance new ways of increasing productivity; a wider range of cases will need this wider range of new skills. I took much the same line in my article King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy which gave a quick tour of C19th economic history and listed a range of largely non-technical and non-legal skills such as project management. Steven Levy’s article Watson Takes on E-Discovery covered the change–adoption curve and suggested that the mere appearance of such an article in the NYT marked a transition from the innovators to the early adopters.
Next up was Joshua Kubicki of Applied Discovery whose article E-Discovery is not so Elementary, Watson led with the observation that technology was only one of many tools being used to lower the expense of some legal work. Clients want predictability of expense and visibility into the processes, and are looking at outsourcing and alternative fee arrangements to reduce costs as well as at technology.
Jerome Kowalski called his article Lawyers Beware: Your Job May be Replaced by a Computer. He introduces another factor which explains the projected number of unemployed lawyers – we are simply producing too many of them, with law schools in the US and the UK alike turning out as many lawyers as they can without regard to the job market. It shifts the focus of the argument a bit – the original NYT argument foresaw reduction in demand irrespective of the increase in the number of skilled lawyers – but the central point is the suggestion that those who train lawyers must anticipate the new skills which will be needed – more analysis and project management, and less black letter law.
The Posse List article went for the same point. Called Its technology, and it is a game changer the article emphasises the need for lawyers to understand the concepts, methods and the process – not just the “traditional” acquisition and preservation requirements but the need to deal with social media and other developing sources of discoverable information.
Clearwell’s Aaref Hilaly, in his article E-Discovery in the New York Times focused on the need for “smart people to operate the technology and make important judgement decisions”. To him, the biggest significance of the article was the fact that the New York Times had published it at all, and in a prominent position; it generated a great deal of interest, much of it, by implication, amongst influential non-experts. Corporate legal departments saw the technology as a way of getting control over the process, and law firms saw the developments as something positive rather than as something to be feared.
This article does not purport to be a full bibliography of all the comment and reaction seen over the last few days. There were others, and many of them, like mine, saw a crossover between this story and the ‘Watson’/Jeopardy! story which immediately preceded it (see my article The relevance of a computer called Watson and a television game show to electronic discovery on this.
The interesting thing about these discussions has been the emphasis on skills rather than on pure technology. The message is not just that buying technology (whether technology generally or any particular technology) will solve the problems raised by large volumes of discoverable electronic material. Predictive coding is but one of the available technologies, and technology alone is not necessarily the right answer for everyone when outsourcing and similar approaches are available as alternatives (or, more usually, in parallel) with the use of technology. The skill set required includes the ability to assess the strengths, weaknesses – and costs – of any one solution and to know enough about them to call on whatever is right for the job. The losers will not be the firms who have failed to choose any particular technology, but those who are not equipped to offer their clients alternative ways of providing the predictability which they require. The significance of the NYT article is that more clients are likely to be asking the questions.