Craig Ball is a US lawyer, forensic expert and entertainer – that last word probably does not appear on his CV, but  you will gather just from the title of my article Craig Ball Entertains at CEIC 2011 on Computer Forensics for Lawyers that he uses this third skill to pull the other two together.

Craig somehow manages to combine good writing and an apparently endless list of speaking engagements with actually getting his hands dirty dealing with the technical end of electronic discovery. He now has a new home for his long-standing column Ball in Your Court, whose most recent post What are we waiting for? summarises succinctly the arguments against the unthinking use of keyword search and the arguments in favour of having “the courage and wisdom to lead the way” in using more sophisticated technology.

He is kind enough to credit me with prompting his post.  The reality is rather simpler – anyone immersed in this subject, with the benefit of hearing the leading judicial thinkers (see my articles Judge Peck and Predictive Coding at the Carmel eDiscovery Retreat and Senior Master Whitaker raises the eDiscovery stakes for unprepared litigants), of reading papers like those referred to in my articles, of listening to those who work in this area, and of seeing the technology, must surely arrive at the same conclusion. Craig heads his article What are we waiting for? I used capital letters in my Judge Peck article (the first time, I think, that I have not relied on the words themselves for emphasis) to say IT’S NOT GOING TO HAPPEN to those who expect judicial blessing for specific technology. The message to lawyers is the same: it is your case, your reputation and your client’s interests at stake here. Aren’t you even going to look at some of this technology? What are we waiting for?

I repeat often something which US Magistrate Judge Paul Grimm said in a podcast which I did with him last year. Technology will always outpace us, he said, and someone must have the courage to go first. His message applies equally to lawyers and to judges, and was not an invitation to be reckless or daring. There is now enough authoritative and properly-sourced evidence as to the deficiencies of keyword searches on their own – see again the papers referred to in my Judge Peck article – and no shortage of reminders that the duty of lawyers and judges alike is to take whatever course will bring down the time and costs of litigation. That changes, and is changing fast. We should at least know what the options are, should we not? What are we waiting for?

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