Changing the Conversation in eDiscovery: Part 3

Changing the Conversation in eDiscovery: Part 3

Changing the Conversation in eDiscovery: Part 3 150 150 Rakesh Madhava

Nextpoint Conversations

CONVERSATIONS WITH: Alitia Faccone + Rakesh Madhava

 
Nextpoint’s “Conversations With” is a feature offering insights from two or more industry insiders in a “panel-style” discussion around a specific topic area. Expect a lively and thought-provoking reportée and check back regularly for installments. To read the whole series, here is Part 2Part 3Part 4Part 5, and Part 6


Crushing the Legal System

Thanks Alitia, for your great post on the incredible rate of change facing the profession. You’re absolutely right that we need greater emphasis on proportionality and cooperation in order to transform the legal industry and face up to the challenges we face. I also think we need to face up to the risk we face if the industry fails to embrace this change. Unfortunately, it’s not just personal and professional risk for individual lawyers – it’s a threat to our entire system of justice.
Richard Posner has spoken and written frequently about the inability of the legal profession and justice system to adapt to technology. The 73-year old federal judge has long been one of the most forward thinking jurists about technology and the law. There is a failure of lawyers generally – even some in the eDiscovery punditry – to understand how technology works and how to use it. Often times, there is a visceral opposition to the use of technology, a state of denial about the transformations going across our society.
Lawyers are historically opposed to change, are not particularly adept at hard science or mathematics, and attempt to treat all issues like legal issues – with opposing narratives that may or may not be valid. It is an approach that allows a lawyer to say, “I can believe technology isn’t important if I believe it isn’t important.” Just like someone can believe the world is flat. Or that evolution doesn’t exist.
It is a philosophical bent that denies today’s business realities and drives end clients to their wits’ end. It is the philosophy that leads the New York Times to proclaim that the end is near for lawyers, that robots will take over.To quote Judge Posner, “We duck, bluff, weave and change the subject. What we’re confronted with in modern technology is altogether more esoteric and difficult than what we older people grew up with.”

The Effect Increasing Digital Disparity = Less Justice.

So what does it matter if the the broader audience of litigators does not understand or embrace the challenges specific to eDiscovery? Who cares if the lawyers don’t believe in cloud computing or believe technology can make them more efficient?
The evidence is clear – most lawyers are so deficient in their understanding of the emerging issues that it clearly represents a failure of their duty as lawyers to stay technologically current, as outlined by the ABA Commission on Ethics 20/20.
This creates a tremendous reputational threat that undermines trust in the legal profession. Larger than just ediscovery, it’s symptomatic of the larger ‘technology hole’ that exists in modern commercial litigation. Namely, actual litigation- you know, everything that happens after discovery is ignored. That is actually the bulk of law firm revenues from litigation, but we hear from law firms of all types that they have no working, stable, cost-effective infrastructure for managing this data.

Crushing the Legal System

It’s a simple economic reality that not being able to find data – in a data intensive business – will crush the system. When law firms experience increased costs for managing data, that is an increase in the cost in providing legal services. Increased costs in providing services are then passed through to end clients as either higher rates or direct expenses – but which one it is doesn’t matter. It’s higher costs.
Again, this is more basic economics – higher costs for a service reduce demand for it. There is price elasticity in legal services, which I know as a client. I use a lower hourly bill rate a lot more than I use a higher hourly bill rate. So it’s no big surprise the level of civil litigation is declining precipitously. The costs of these services have lead the 7th Circuit to start a pilot program in eDiscovery “to reduce the cost and burden of electronic discovery.” Working on the front lines, the courts have recognized that the challenge is so great that it is threatening the civil justice system in the United States. Those of us in the litigation technology industry have an obligation to face up to this challenge as well.