I have not been before to the British Legal Technology Forum. Most of the events I attend have eDiscovery / eDisclosure at their heart, and I had sensed (perhaps wrongly) that most of the exhibitors and the talks have been off my patch.
I went to it last week, partly because I was invited to speak, and partly because a larger proportion of the people, subjects and activities touched on areas which matter to me. This is perhaps because electronic discovery – the process of extracting information from data for the purpose of disclosing it to other parties – has itself spread to encompass both wider subjects and technology with purposes beyond eDiscovery. As well as mainstream eDiscovery providers like Epiq, exhibitors included, for example, the analytics software provider Brainspace whose tools have a wider remit than eDisclosure but which are nevertheless increasingly bound into eDiscovery processes. Artificial intelligence software company Neota Logic was there as well, reminding us that we are not far from building AI tools and processes into eDiscovery. The skills and tools are spreading their wings more widely than disputes, and the people are beginning to follow.
The chairman for the day was Professor Richard Susskind, and the agenda took its tone from his interest in the crossover between technology tools and the people who use them or rely on them, whether as users or as the clients for whose benefit the work is done.
That was one of the themes of my session which was called Technology and court decisions around the world. The speakers were Paula Fearon, Senior Associate at McCann FitzGerald, and Ben Gardner, Data and Information Architect at Linklaters.
Note before we start: some of the judgments etc mentioned below use the term “predictive coding”; others use “technology-assisted review”. They are not terms with co-extensive meanings (“predictive coding” is a specialist sub-set of the wider use of analytical tools embraced by ‘technology-assisted review”). I use the wider term below, since my theme is that lawyers need to know what all these tools do in order to articulate arguments for using whichever is most appropriate for the case.
There were three main themes to our session. One was to do with acceptance, by courts as well as by practitioners, of new technology. One was that eDiscovery tools and skills have uses wider than their conventional application to disputes. The third was that there is new scope for lawyers with new skills and a different attitude to their work.
Taking each point in turn:
Court acceptance of technology-assisted review
I opened with a brief survey of the spread of technology-assisted review around the world. The subject involves interrelation between the machine and the human, not merely as a process matter but because human reluctance has impeded the spread of technology which is well able to cope with the task.
Those of us who encourage the take-up of technology-assisted review are well used to the argument from lawyers that it had no court approval and so (it followed, apparently) they could not safely use it to comply with their discovery / disclosure obligations. Although I am always quick to dismiss the US idea that the US is two years ahead of the rest of the world in eDiscovery overall (that is, taking the rules and the practice into account), even I acknowledge that Judge Peck’s decision in Da Silva Moore was enormously influential in encouraging other jurisdictions to consider it. What jurisdiction, after all, has a more burdensome test for discovery than the US?
The answer to that, as it happens, is Ireland, and Paula Fearon told us a little about McCann FitzGerald’s involvement in Irish Bank Resolution v Quinn. The theoretical test in Ireland is that a lawyer must be 100% certain that he or she has given discovery of 100% of the relevant documents; in addition, the Irish fight strenuously and bitterly (and often rather personally) to object to the discovery given by other parties.
Paula Fearon explained the need to set out clearly the proposal, showing how the technology is to be used, what might be expected from it, and what the costs and savings would be. Proper articulation of these things gives the court power to decide the most proportionate course and to say, as it did in the Quinn case, that proper use of the technology according to a strict protocol would be compliant with the rules.
In England and Wales we had the (agreed) judgment in Pyrrho and the contentious one in BCA Trading which, between them, make it impossible to argue that the proper use of predictive coding is not acceptable in an appropriate case.
[Sorry about all those negatives (“impossible to argue….is not acceptable..”, but that form of words accurately describes the position].
Yet more recently we have had two judgments in the Supreme Court of Victoria. In McConnell Dowell Constructors (Aust) Pty Ltd v Santam Ltd it was the court which had initiated the discussion which led to the use of technology-assisted review. In Money Max Int Pty as Trustee for the Goldie Superannuation Fund, the court required the solicitors or FTI to provide a detailed report sufficient for the judge to form a view (I wrote about both of these cases, with links to the judgments, here).
In addition, the Supreme Court of Victoria has recently adopted Practice Note SC GEN 5 Guidelines for the Use of Technology which includes the following:
In larger cases, technology assisted review will ordinarily be an accepted method of conducting a reasonable search in accordance with the rules of court.
The use of discovery tools and skills for purposes wider than eDiscovery
Paula Fearon told us of McCann FitzGerald’s Data Investigations Group brings the skills which the firm developed for disputes to other activities involving very large quantities of data, including M&A, compliance, and due diligence. I interviewed McCann FitzGerald’s Karyn Harty about this here).
Ben Gardner emphasised that other knowledge industries use artificial intelligence and similar technology. Although lawyers like to think they are special (my phrase, not Ben’s), the use of sophisticated technology in, say, pharmaceuticals, is of no less importance than its use and potential use in the practice of law.
Ben Gardner gave another example – journalism. The Panama Papers exercise was essentially a discovery project across multiple borders, languages and data types. A set of tools and skills, including project management skills, similar to those used in discovery were applied to achieving the result required. As I wrote here, I interviewed Gerard Ryle of the International Consortium of Investigative Journalists about this at the Nuix User Exchnage last year, and the parallels with discovery became clear as we talked.
New jobs, roles,tasks and skills
The event chairman, Richard Susskind, has long argued that there will be new jobs, roles, tasks and skills applied to the practice of law, not all of them by lawyers. Although there is plenty of room for conventionally specialist lawyers with narrow expertise, knowledge and skills, it is more “elastic” (Ben Gardner’s term) to have a wider range of skills and an understanding of modern technology together with an approach which encourages collaborative work with others such as clients and third parties using technology to solve problems. You don’t teach lawyers to code with the expectation that they will go off and develop great new apps, but with the hope that they will understand better how technology can be used to enhance the delivery of advice and services to clients.
Both panellists mocked the idea that lawyers were cutting their own throats by letting technology in to help with the work. The use of technology for routine tasks frees the lawyers to do what they were qualified to do – to focus on delivering legal and business solutions which their clients need at a cost which is acceptable. Those who treat such technology as an opportunity rather than a threat (as both Linklaters and McCann FitzGerald patently do) are able to win clients as a result.
In addition, the acquisition of these skills leads to personal career development both in hard CV terms and (as Paula Fearon in particular made clear) in opportunities to get involved in more interesting work than she might otherwise have anticipated.
The format and agenda of the British Legal Technology Forum encouraged this wider approach to the challenges and opportunities which technology brings to law – not just the recital of judgments and rules, not just the specifics of any technology, not just talk of risks and sanctions, but a more rounded approach which set up all these things and focused on how lawyers might choose to work to meet their clients’ objectives and so win more work.
I use that expression “choose to work” deliberately, rather than “must” or “should” work. There are some things you “must” do – knowing the rules and keeping abreast of current working practices are not exactly optional. Thus informed, you can choose to acquire tools and skills appropriate to your practice, and perhaps extend your practice both by subjects and by new clients you get to work for. This was a very good event at which to think about those choices.