Katie Jensen is Director, Legal Technology Solutions at Navigant. She is from the US, and therefore brings a perspective to the use of technology by UK lawyers which is slightly different from those used to our ways. I interviewed her recently and asked her what we should say to UK lawyers about the use of predictive coding. After all, I said, the UK rules are less onerous in many ways than the Federal Rules of Civil Procedure.

Katie Jensen suggested that the right message is to use predictive coding on “just about every project”. While it is necessary for lawyers to have some understanding of the process for which they are responsible, the best approach is to hire experts who do understand every aspect of its use, leaving the lawyers to focus on tactics, strategy and the issues.

Navigant, for example, uses data statisticians, among other experts, to help ensure that the outcome of the process is defensible.

I asked Katie Jensen how you reassure the lawyers that all this technology produces a result which they can defend. One method (and one which, incidentally, is expressly referred to in Practice Direction 31B) is to sample the documents which are not included in the preliminary review set. If sampling shows a proportion of responsive documents which are in the “wrong” pile, then that perhaps indicates that the model is not working and that it should be adjusted.

I observed that text analytics have been used for a long time in other areas. Why was its adoption seen as a problem for lawyers?

Katie Jensen gave examples from medicine, where predictive analytics has been used, for example, to estimate hospital waiting times and to predict when people might have heart attacks. As I observed in reply, if a technology is good enough for the prediction of heart attacks, it ought to be good enough for Part 31 of the English Civil Procedure Rules.

There are other eDiscovery / eDisclosure uses for predictive coding technology apart from the production of the disclosure set. It can be used for testing the results of other processes, to examine the incoming documents from opponents, and to provide an advanced form of early case assessment to help the lawyers make strategic and tactical decisions.

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