I bring a fairly jaundiced eye to some of the marketing by those who sell technology solutions to lawyers. This is not so much to do with the quality of the marketing materials themselves but more to do with their approach to the psychology of those to whom the marketing is addressed. To some extent, a mismatch is unavoidable: the technology pitch is that it saves lawyer time, and lawyers live by selling time; much of eDiscovery validation depends on statistics and probability, and lawyers are largely arts graduates; there is good reason for fear, uncertainty and doubt in the management of discovery and it is unsurprising that providers trade on this as part of their pitch, often at the expense of more positive messages.
Deeper fears are touched by the implication that technology can do certain tasks better than humans can do them. It comes across as a threat to jobs at a time when many lawyers are out of work already; it appears to mock the years of expensive learning and the large qualification debts; it seems to threaten the central role which lawyers have traditionally had in the litigation process as functions are increasingly delegated to what is seen as a black box, and are challenged by new business models. There is something in all of this, and the New York Times article of March last year Armies of expensive lawyers, replaced by cheaper software, stoked fears which certainly had some substance.
This came up in one of my recent articles which cross-linked to my reaction to the NYT piece in these terms:
I referred to provider marketing implying that technology makes lawyers superfluous; that is misconceived on two levels – it is unlikely to encourage lawyer take-up, and is wrong anyway. My article King Ludd and the Lawyers – eDiscovery and the Luddite Fallacy covers this point.
The Luddite Fallacy article, in turn, refers to Ralph Losey’s cogent piece NY Times discovers eDiscovery, but gets the job report wrong.
The subject comes up again this week in an article on Forbes.com, called What Technology Assisted Electronic Discovery Teaches us about the Role of Humans and Technology by Amanda Jones and Ben Kerschberg. Amanda Jones is the consultant at Xerox Litigation Services who came up in my recent article about Xerox as a technologist who stresses the importance of human skill in eDiscovery, with technology as an aid rather than as a rival.
That is also the theme of the Forbes article with its stress on “the role human expertise can play during the earliest stages of case strategy development and later during optimisation of the review process”.
The article pulls together some of the recent thinking on this interaction between the human and the technology inputs into ediscovery by, amongst others, Maura Grossman and Gordon Cormack, by Anne Kershaw and Joe Howie, and by US Magistrate Judge Andrew Peck. There are two quotations also from a 2010 article of mine called Having the Acuity to determine Relevance with Predictive Coding which, apart from the happy chance which allowed me to combine three of my sponsors’ product names in its title (from FTI Technology’s Acuity, Equivio>Relevance and Recommind’s Predictive Coding), focused on precisely this point about the joint contribution of lawyers and software tools.
It is obviously gratifying to be quoted in this company and on a site with a broad business readership – “broad” meaning not just the already converted. More importantly, the stress which I then placed on the true objectives of discovery, the focus on the most cost-effective route to the objectives, and the need for a legally-trained brain are ones which emerge as the most important challenges of 2012. I had in mind writing an updated article on the same subject. The Forbes article saves me the trouble.