So Much to Read, So Little Time ...

There is a lot going on in the legal industry these days.

And while much of the talk is about Artificial Intelligence and Cybersecurity at the moment, we all know that technological progress isn't limited to just one practice area.

We at Counsel On Call are certainly using the latest tech in pretty much everything we do, from due diligence to compliance work to contracts management. We're also really excited about some of the results we're seeing using TAR 2.0 tools (true computer learning with AI-type functionality) and the business intelligence these platforms are helping us deliver to our clients.

It's always important to keep up with the thoughts and stories in these areas. We're hosting our Client Advisory Board next week in Atlanta, and some of the topics we're tackling are represented in the articles below. We thought it would be helpful to share some of what we've been reading the last few months.

Legal Trends

Legal Services Model

Technology in Legal


Corporate Transactions/Contracts

Who Are the E-Discovery Attorneys?

In previous entries, I wrote about enjoying the discovery work that I do. Recently I have given more thought to the question of why it is that I enjoy it; after all, so many attorneys view the work as transitional or laborious. For me, the autonomy is great. The subject matter changes from project to project. I have opportunities to meet and work with different attorneys, clients, litigation support staff, and vendors, all of which I consider an added bonus. These things would also be true if I were practicing in a more “traditional” manner as well, however. So my assessment is that it must be something deeper that compels me to choose this career path over any other.

It was only recently that, when introduced by Andy Branham of the Memphis office as somewhat of a “computer nerd who happens to be an attorney,” that I had an epiphany. He was right.

There is a subset within the legal profession comprised of attorneys who consider themselves specialist discovery attorneys. The attorneys I’m referring to consciously chose to work in this rapidly expanding area of the law. But where did they come from? Perhaps some attorneys have inadvertently found this career as a result of being the go-to person for technology-related questions in a firm. Discovery attorneys possess a genuine interest in the work and a desire to use their experiences to contribute in the discovery process. These attorneys appreciate the complexity of e-discovery, the intricacy of the collection, culling and review processes, and ultimately the end product, the production. Here at Counsel On Call, our attorneys also often have the opportunity to handle additional discovery-related work, such as privilege log, research and writing and witness prep, among other responsibilities.

Perhaps these attorneys can visualize the process more easily than their colleagues. Perhaps they consider how technology can provide them alternatives and understand and embrace it, not just the end product that the technology may provide. Discovery attorneys are problem-solvers with a twist, using the technology to their advantage. They may work for large corporations, law firm technology departments, or independent e-discovery organizations that fill the niche role of discovery counsel. They work in conjunction and partner with in-house and outside counsel completing what could be referred to as the three-legged stool model of client representation.

E-discovery is still in its infancy and for me, as well as others drawn to this work, it is a grand opportunity, one that allows us to continually improve upon our skill set and enhances our knowledge base. I am thankful to have experienced mentors at Counsel On Call who appreciate this desire and continually assist in the furtherance of my growth as a discovery attorney by providing advice, insight and other resources. They recognize the value in providing growth opportunities that will not only benefit the individual and the team but also provide added value to our clients.

There’s also no question technology helps my colleagues and me do our jobs better and faster, thereby amplifying that value we offer our clients. That’s a win-win scenario as I see it, and I think attorneys who are into learning about new tools are perfect for e-discovery work. I look forward to diving into the practical uses of this technology in subsequent posts.

Shawn DeHaven is a Counsel On Call attorney and team leader and has offered to post his thoughts on the discovery process and working with Counsel On Call on Lawdable. To learn more about Shawn, please see his bio or the profile piece in Counsel On Call’s newsletter from last summer.

What Would Hal 9000 Do (WWH9D) for E-Discovery?

“Greetings, attorney 61432. Your security access has been confirmed. What type of documents would you like me to search and code for you today?”

Imagine e-discovery being that easy. Simply logging on and telling a computer to handle your process for you. Sounds like something out of “2001: A Space Odyssey.”

When I began my legal career, the dominant discovery work involved reviewing paper documents in cardboard boxes and inputting information onto coding sheets or onto computer ‘boxes’ with blinking orange or green lights and no internal drives. Not exactly the golden age of artificial intelligence, eh? That being said, very few could foresee the impact of the computer itself in the legal world, but with the advent of e-mail an entire industry was born to deal with the “E” part of e-discovery in particular. The jobs that many lawyers hold today did not even exist in that form just a decade ago.

Fast forward to today where the talk of the town is predictive coding using the ones and zeros to do the work that a human lawyer currently does (maybe "The Matrix" would've been a better analogy here). Predictive coding has received an increasing amount of discussion among the various forward-thinking lawyers involved in e-discovery (see a good example here). This trend and its impact will no doubt increase over time.

Predictive coding takes a number of forms but basically it involves someone with case knowledge starting to review documents, and then the computer learns from the documents marked responsive, non-responsive, privileged, etc., and applies that knowledge to categorize all the documents in the entire data set that has been collected. (Of course, the value that most discovery attorneys bring to a case is more than just tagging a document as responsive or privileged. They also analyze the documents and determine how they fit into the overall litigation. They can find problematic, hot or helpful documents too that might not be possible to find strictly from a predictive coding perspective.)

The question that remains is whether predictive coding will be good enough to rely on for production or will we still need to review the documents at a more “Quality Control level” before production. The upsides are definitely there if it can work. Speed, cost savings, accuracy, etc., could all be improved. As always, much depends on the accuracy of the initial information inputted into the process, but overall it bodes well for saving clients money.

And as cost-saving devices are created to meet the current technology challenges, the technology challenges themselves are also changing and increasing. The next challenges will likely involve social media sites, text messaging, audio and video files, and dynamic databases, each of which are only starting to rear their ugly heads in the discovery world.

Add all of this discussion to our current economic times and we once again have the concern about the impact on jobs and future careers. Will they still need me if a computer does all the review? The question is not unique to the legal world and the answer may surprise some of you.

While it took a decade for e-discovery to take over the entire discovery process and discussion, the new waves will likely come much faster as technology evolves and impacts everything that lawyers, especially attorneys involved in e-discovery, do. Attorneys may not be first-level reviewing any e-mails in five or ten years, but they could be looking at videos on an eighth-generation iPad! New avenues that currently don’t exist or only exist in their embryonic stage will be available to us all. There will certainly be new workflows and protocols created to incorporate technology into making the discovery process more effective and efficient – someone is always seeking ways to build a better mousetrap, and we at Counsel On Call fall into that category.

Part of my job as Discovery Process Architect is to continually analyze what’s working and what isn’t, what our teams can do to better utilize the available resources, how to deliver the best-possible work product, and ultimately what can we do to save our clients time and money. Predictive coding could very well be a part of that in the not-too-distant future. I do believe, however, that attorneys will still be an integral part of any smart and flexible discovery processes that are developed.

The bottom line: I don’t believe we’re anywhere near the Hal 9000/Space Odyssey scenario or a comprehensive predictive coding process eliminating the use of attorneys during the review.

But as the year nears its close, realize that change is constantly in the air these days. Change with it. Expand your skill set. Don’t get stuck where you are. Learn something new about technology this year. Read. Experiment. Become better at what you do.

I know these words have been uttered by every generation, but as one of the old guard who has transitioned into our brave new e-discovery world, I can speak to the value of its counsel.

The LegalTech Jungle

It’s hard to believe that the annual Legal Tech conference is just around the corner, Feb. 2-4 in New York. Hundreds of vendors and thousands of attendees will descend upon the Hilton New York Hotel in what has become a must-attend event for those of us on the technology side of the profession.

If you’ve been to LegalTech, you know it can be a little overwhelming and it’s important to go in with a plan. While sorting through the masses, we have several distinct objectives while we're there:

  1. Review the latest technology tools that can reduce the time and expense of litigation in a number of areas. We are particularly interested in technology that can reduce the amount of data to process and review (see: early case assessment tools)
  2. Learn from legal and corporate counsel the challenges they face and the measures they have taken to address . Panels of interest include: "Executing eDiscovery Inside the Corporation," "Corporate Legal Department vs. Law Firm Perspectives," "Managing eDiscovery in an Alternative Fee Envrionment," and "State of the Art in eDiscovery Automation and Early Case Assessment"
  3. Meet with technology providers and share what we’ve learned about their services and discuss ways we can work more efficiently together

All of this will help us better serve our clients now and in the future. eDiscovery can be a jungle, and LegalTech aids our efforts to be the best safari guides we can be. In a couple of weeks I will post a post-conference summary with information you’ll hopefully find helpful.

Until then … wish us luck.