FTI Consulting is producing a webinar on 25 May in conjunction with The Lawyer on the changes we can expect from the use of predictive coding in litigation, investigations and related areas of compliance, and the resolution (and avoidance) of disputes.
Jon Fowler is Senior Director at FTI Consulting with responsibility for discovery technology including predictive coding. He has written an article called How predictive coding is changing the legal landscape which emphasises the need for lawyers to understand how to apply this technology and how to decide which type of case will benefit from its use.
One of the arguments run by those opposed to predictive coding is based on the assumption that humans will always be more accurate than a computer in decision-making. That has always seemed wrong-headed to me, partly because of the inevitable inconsistency over time and between reviewers, and partly because it gives no credit for the time-saving, and therefore the cost saving, which results from using an algorithm to make the initial calls as to relevance.
Jon Fowler refers to a paper by Maura Grossman and Gordon Cormack called Inconsistent responsiveness determination and document review: difference of opinion or human error? which concludes that “disagreements among reviewers are largely attributable to human error”. It would perhaps be good to read this before asserting that your humans are better at document review than the latest technology developed for the purpose. That does not diminish the importance of human involvement, just focuses it on the decision-making which really does require human thoughtfulness rather than on expensive drudgery. FTI itself specialises in the joint application of technology and human understanding to the tasks of determining relevance and (which may be a different point) importance.
A related point which comes up in this context is the extent to which lawyers need to understand the technology itself. They must clearly be in a position to take responsibility for the accuracy of the results, but it is worth considering two points: one is the availability of people with appropriate technical knowledge and skills who can deal with the technical side while the lawyer concentrates on tactics, strategy and the issues; the other point often overlooked is the availability of testing mechanisms which allow the lawyer to satisfy him- or herself as to the accuracy of the results.
Even those who, for whatever reason, are convinced that this technology is not for them need to understand what it does, what it costs, what it saves, and when it should be used – even if you are dead set against using it yourself, you need to understand what is involved when your opponent plans to use it. After Pyrrho, you cannot simply mutter about black boxes and decline to engage in the discussion.
The FTI webinar with The Lawyer will take place on 25 May at 12.00pm when Jonathan Fowler will be joined by experts from private practice and corporate legal teams. You can find out more by contacting firstname.lastname@example.org