Originally posted on October 17, 2012
This is a continuation of my post from last week discussing “The E’s” of Predictive Coding
Before I get a string of emails from my fellow experts and friends in the field, I must add that creating new processes in law is never easy because of the barriers pointed out earlier in my last post. Also, the additional skills of understanding technology, statistics and law does make each of us experts, even if we are throwing out competing preferred routes to complete a review and confusing the marketplace. Just like your GPS, the customers end up with three suggested routes to choose from and they all get you from A to Z crossing different types of terrain. But, since lawyers are trained to avoid risk and would rather use “precedent” as opposed to coming up with new solutions, there is a risk of following blindly a single route as gospel without doing some homework about the different routes and their applicability for the specific matter at hand.
Short of looking at TAR when a project is imminent and simply peering into this fragmented market for answers and training on the job, how does a lawyer get educated on TAR and reduce the risks of making mistakes? Some organizations centralize the function of eDiscovery and hope the various litigators in the firm will call the expert when there is eDiscovery. Success with centralization varies and depends on how diligently the organization’s litigators engage the eDiscovery department or litigation support department early on in the process. Importantly, those litigation support departments also have the challenge of how to get educated on these tools. Others go to education groups and take tests for certification to create an aura of expertise. But, I always wonder who taught these new experts, and this is an important factor to consider in this new field. Probably the best groups able to help are the consultants who are compiling data and studying the field across multiple vendors and clients. The consultants are able to identify different approaches because their job is to obtain a broad view over the industry without bias. This may be one of the first times I have ever seen in litigation where the need for consultants has been so critical to eDiscovery. It had been easy to hire technologists to assist with preservation, collections and processing, but predictive coding fits right in the EDRM box where the litigator’s initials are.
Thus, the entrepreneurs among us are critical in the development of new processes. That is why I admire my colleagues, friends and competitors who are pushing the field forward and experimenting. But, before we get to a point of anointing someone as “The Expert”, who lawyers everywhere should blindly follow, the legal community should look broadly and catalogue the actual experiences in the field of others to figure out what has been working and compare that to what has instead resulted in goofy outcomes. This is something consultants can do. Then, iteratively push these experiments in other directions. I know that is what I have been trying to do. I am not ashamed to drop biases from my experiences and say I think these tools are GPS’s and there are many ways to solve a problem using these tools.
Ultimately, I disagree with Craig’s witty observations of creating this association, because an association needs some consensus to create the standards that Craig seeks and that I agree would be helpful. From my perspective talking to companies, lawyers, working in cases and evaluating technologies though, we are not close to that point yet. Frankly, there are not yet enough lawyers using the tools to come up with clear standards. The desire for standards is made even more challenging because of differing data sets, different tools, differing richness levels, and differing case profiles. The best standard may be common sense and reasonableness. Personally, I prefer the federalism approach of experimenting, educating and evangelizing to get the word out.
One last pet peeve which I expanded on in a Forbes article Legal Hydra: Top Ten Tips To Become More Proficient With Machine-Assisted Review is that we need to look wider in the field for expertise than just lawyers in law firms. If you try to get technology advice from most lawyers, you might as well ask for stock tips at the same time. The quality of the advice is going to vary tremendously. Look beyond listening just to lawyers at CLE’s. CLE’s should actively encourage vendors and consultants to participate in the dialogue as we add skills, which are clearly relevant to this debate. Good luck everyone. It’s time for class to begin and to start getting Educated!!