It is not surprising to find that The Lawyer’s Global Litigation 50 2017 (registration required) has a strong emphasis on the use of technology in the management of litigation and other disputes. The introduction by Craig Earnshaw, Senior Managing Director at FTI Consulting (which sponsored the report) emphasises three things which make this inevitable:
The growing expansion of, and dependence on, the data underpinning global businesses;
The availability of new technology tools to manage that data efficiently and cost-effectively
A corresponding expectation on the part of clients that the lawyers will understand this technology and that they know how to use it to give strategic advice promptly (not just to proceed with the procedures required by courts or regulators).
Court acceptance of predictive coding, led by the Pyrrho case, is only the start, Craig Earnshaw says. The demands of regulators have increased along with the sharp rise in data volumes; eDiscovery skills and tools are adaptable for use with information governance programmes and the new focus on identification of personal data which the GDPR brings.
The most interesting section of the study is the one headed Calculated decisions, starting on page 15. Its sub-heading “Faced with pressure from clients to raise their game, law firms must adapt to technology or die” is a message we have heard in various forms for several years now. Those who dismiss this thought as the rhetoric of self-interested futurists have perhaps not been paying attention to what is actually going on at the sort of firms who make it to the Litigators Top 50.
Starting at page 19 is a selection of initiatives introduced by some of the named firms (these are expanded upon from page 69).
It is invidious, perhaps, to pick out individual examples from the impressive list of players mentioned here. To take just two from the first page of the Calculated decisions article, we find the data practice at Morgan Lewis & Bockius, founded as long ago as 2004 by partner Tess Blair, which has expanded from document review services in the US to having 50 technologists and nearly 100 lawyers across several time zones, with skills extending to legal project management and quality control in support of Morgan Lewis’s cross-border litigation work.
Mishcon de Reya has Mishcon Discover, using Relativity in conjunction with the disclosure provider Unified to manage litigation, internal investigations and some other exercises.
As the article puts it “clients are demanding it and rivals that aren’t law firms are increasingly providing it”. You can, if you like, write off the words “change or die” in the next sentence as hyperbolic, but it surely make sense to know what rivals are encroaching on your business – especially when they include the clients themselves.
I had planned to give you a summary of the main points coming up in this report but that is as invidious as identifying a handful of the firm names mentioned in it. In addition to the Calculated decisions section at page 15 to which I have already referred, have a look at the next section It’s a cash cow starting on page 25.
Discovery and analogous processes have been the driver at many firms. FTI’s Craig Earnshaw talks of “the comfort levels of lawyers with the technology” and the increasing extent to which clients are expecting their lawyers to use technology to deliver projects more quickly and cheaply.
“Clients are asking the law firms, “why should I engage you on this mandate?” Craig Earnshaw says, adding “the willingness to use the new tech that is out there could be a differentiating factor”.
Bruce Braude at Berwin Leighton Paisner says that he is not seeing clients necessarily expressing a preference as to what the tools are – “they’re concerned with the output rather than the model”.
People matter. As Craig Earnshaw puts it “Smart technology on its own isn’t enough, you need smart people”, and this includes the lawyers both within corporations and outside them. There is a side reference in the article to lawyers finding it more interesting to work with modern tools including artificial intelligence; the word “fun” even turns up at one point. Don’t under-estimate this as a factor to be considered when investing in technology. Paradoxically, perhaps, clients still value personal relations with their lawyers and one of a firm’s biggest battles is to attract the best staff, ones the clients want to work with. If technology helps make their work “interesting” and even “fun” then that is a differentiating factor for staff recruitment and staff retention just as the existence of the technology as a differentiating factor as the firms pitch for work.
I asked Craig Earnshaw for a brief summary of the 206 pages of this paper. He said
“In recent years litigation has changed significantly for law firms, the corporations they represent, and the consulting firms that provide the technology they both rely on. The vast amounts of data, from an ever growing number of sources that need to be considered, risks increasing litigation costs for the corporation. Lawyers need to stay abreast of the eDiscovery technology that is available to them to efficiently review and disclose, and to reduce the time and costs involved. In turn, this drives the technology firms to continually innovate with their software to ensure their consultants can deliver these benefits for their clients.”
That is the message which recurs thought The Lawyer / FTI report. I don’t usually link to sources which require registration, but this report is interesting enough to warrant an exception.