E-Discovery and the Great Booze-Up

Occasionally, I stick my head up and actually read the articles that discuss the role of technology in the litigation process.

Having thought about this stuff on the small scale for a LONG time,  it’s always kinda fun to see people state the BLEEDING OBVIOUS…so very cogently and thoughtfully. I am SO no one to be commenting on the proclamations of  “legal technology experts,” but what the hell. Here goes.

So, today, I read this great article by Ralph Losey that fails because it continues to put the responsibility for the morass of e-discovery where it doesn’t belong : with lawyers. I am a well-trained lawyer, but I solidly disagree that lawyers are equipped to be “in control” of the technical tools of their trade to the extent that one should suggest they ought to be.

In my view, the best practice is to learn how to delegate, and to know how to run a project properly. Do it “Serenity” style (the Firefly version, not the prayer) and allow people to do what they do best.

The objective should be to free the lawyer to be a lawyer, — not to saddle the lawyer with things about which they know very little.

Anyway, Losey begins with the problem:

…Runaway e-discovery costs are making it too expensive and uncertain to try cases. Litigants, especially large companies, are driven to ADR or forced to settle at inflated prices just to avoid e-discovery.

[ <snark> What he doesn’t say is that lawyers don’t like ADR because 1) it works and 2)  they’re not willing to give up the gladiator mentality that characterizes lawyers from the first day of law school to the day one leaves the profession well-fatted or depleted…to follow your bliss growing exotic mushrooms in the wilds of Montana (disclaimer; if this is you, well, own it if the shoe fits. I don’t know you, I just made this up for the extreme example). [taking a breath]

And, sooooorry, but it annoys me when people say things like “driven to ADR” as if it wasn’t there first. Stop hiring the problem as your neutral and you’ll get better results.</snark> ]

Ok, so what’s my source of disagreement? Surely, Losey is right about many things,and most importantly, the firms are gonna listen to him, so it’s important to support the voice of reason.

But, the new e-discovery rules are not  the problem.  Neither is the explosion of legal tech around compliance with e-discovery requirements. A computer really doesn’t care whether you have terabytes or petabytes of data, once you help it along by create batching and running several processors in tandem. You don’t even have to go to India to get economies of scale. The software issue is that people false expectations about what a computer can do when it is not given the right data.

I could talk about lots of points of contention in legal technology, but the main problem that this article rasies for me is the highly rebuttal presumption that lawyers are the ones who ought to control legal technology. Love the emperor metaphor, but, to me, the question isn’t the Emperor’s nudity, but whether that will be replaced with a Bob Mackie dress:

Losey doesn’t really admit that lawyers like to feel they know everything. He doesn’t really seem to take issue with law firms trying to write software and call it “best practice.” Which is probably why people will listen to this advice.

It doesn’t take a rocket scientist to know that even the best lawyers DON’T know everything. Ok, they know law. Or, maybe they specialize in breaking law for their client’s benefit. Either case is fine by me, –because that’s what the profession is trained to do.

But, what they DON’T know is how to build taxonomies or do true concept search. They DON’T know how to write good software and they DON’T know how to turn digital data into useful information (design).

Anyway, this is how he puts it:

To put it bluntly, most of us trial lawyers are not fully competent to practice law in today’s digital age of terabytes of potential evidence.

“Bluntly”? What this assessment doesn’t do is take on the mistaken notion that “practicing law” includes mastering technology. I challenge the aggrandizement of the legal profession and the refusal to parse problems into legal and non-legal issues so the best solution can be devised for the client. Most lawyers approach problems with a pocketful of hammers. <resumption of snark>Which is why they can’t handle ADR properly done and revert to ADR-as-litigation, increasing client consternation instead of allaying their concerns.</resumption of snark>

What I would like to see instead is the active development of the legal tech community to support lawyers, with the assurance that they are equal partners in the search for client justice. The non-profit world provides a great example with the ProBono.net project. Having worked with small start-ups such as Pika Software, I know that open source tools not only work, can be rapidly developed and deployed with a minimal amount of support.

Sedona is a great conference with great publications,–but so far, it remains the preserve of the white shoe firms. I’d love to go without having to be a member of the legal elite. [Maybe I can get in as a diversity attendee… substitute “geek” for “gay” and I think I’ve got all the minority bases covered! Hee hee! ] At any rate, open this puppy up and let’s get some diversity in the realm of what makes for good legal technology by integrating the views of geeks, as well as gurus.

“Protodigital” ? This is really kinda silly:

This failure of many litigation decision-makers to think beyond the protodigital is having catastrophic consequences for the ability of our civil justice system to deliver the just, speedy, and inexpensive determination of ANY action. (bold font retained)

It’s really just another way of saying certain people really oughta retire and let the new generation come on through and do things differently. People don’t like change, because it reduces their ability to command. When lawyers give up the obsessive need to control, then the profession will be better off. Did Obama micromanage his tech team,–the results show clearly that he did not.

So, while I definitely agree that the inquisitorial system, for all its merits, won’t work here, that doesn’t mean lawyers still need to run the entire show.

Unfortunately, the vast majority of lawyers and paralegals involved with e-discovery today, typically those involved only occasionally or on a part-time basis, do not have the skills and deep knowledge required for economical e-discovery.

Yup. That’s because document review is NOT legal representation. But, doc reviewers are hired as if it is.

Further, (and I feel a bit of the snark coming back here),  I just took a Project Management course with this amazing instructor, who within the space of about 5 minutes made it clear that project management is a critical skill for the next century. She also, without naming law in particular, demonstrated why most litigation projects fail: lawyers are NOT good project managers. Because good project management is a skill nt taught in law school:

Project Management is the discipline of planning, organizing and managing resources to bring about the successful completion of specific project goals and objectives.

In fact, the skills that make a good lawyer are antithetical to leadership, and team leadership in particular. Those skills that make some of us worth $150,000 to start also make us TERRIBLE at communicating a well-considered litigation plan, although clients who use project management skills every day are starting to  demand that lawyers get with it.

Ok, so maybe this is somewhat Oedipal: my Dad was a project manager and it took me __ years to figure out not only that anything worth doing was worth doing well but that anything worth doing wel required planning as a “project.” “Fail to plan, plan to fail.” Which is why I pulled my sites and am re-engineering (yet again) the software projects I create from the ground up. For the last time … until I hand it off to someone else! The benefit of coding things myself is that I know what I don’t know. But, it also means that when I delegate, the vendors chosen won’t being able to waste my money.

What I say is: give the client flippin’ critical path analysis! Give the client a Gantt chart and show them that a ridiculous position is going to cost them money. This should be standard ops, –not the preserve of the firms that charge $500 an hour. It’s not about metrics on the backend, but proper planning on the front end. I think that’s where Web 2.0’s obsession with “metrics” came at the expense of proper planning. But, you can’t DO Web 3.0 without it, so there’s a fair bit of a correction going on.

So, to keep this from turning into…well, a sermon…go read Losey’s Sermon of Protodigital Transcendence …and see whether it resonates. In my book, so long as lawyers are in control of things they have no business trying to run (on conflict of interest principles), these suggestions aren’t going to do any good.

Here are four things I think make sense (some of which are stated in the Losey article):

1) Form a relationship with a legal technology consultant with project management training independent of your firm. You need someone to call out the weedy pigeons and turnips.

2) Designate an attorney in your firm to be the point person for a legal tech team. Don’t get silly and try to write your own software. Rather, work with vendors so that they can make software that makes sense, instead of stitching together disparate applications to make the sale.

3) Work the ABA and local bar associations to open source the tools of the trade to technical mashups: legal opinions, court briefs, discovery orders. Transparency in the profession will create better opportunities for quality lawyering.

4) require project management training for all  attorneys as  CLE.