This post was authored by Chad Main, an experienced litigation attorney and founder of the legal technology company Percipient, which specializes in efficient document review. Chad also authors the excellent Percipient Blog. He can be reached at email@example.com.
I recently attended a breakfast with other attorneys, legal professionals and vendors specializing in e-discovery. I like this particular event because it is a round-table discussion about best practices and challenges.
That day, I found the discussion quite poignant. It touched on a friction more fully exposed to me after I left the practice of law to launch my company. Although e-discovery has been around awhile, compared to the practice of law, it is still very new. If you are frequent reader of this blog, you are no doubt aware that while young, both the e-discovery market and the business of law are likely nearing an inflection point (or are already there).
"BOTH THE E-DISCOVERY MARKET AND THE BUSINESS OF LAW ARE LIKELY NEARING AN INFLECTION POINT (OR ARE ALREADY THERE)."
The pain caused by e-discovery, its high price and its complexity is well documented. The cause of the pain is often attributed to the bar’s general unfamiliarity with e-discovery and reluctance (or refusal) to face e-discovery head on and deal with it. For their part, attorneys and their clients point out that unpredictable and opaque e-discovery vendor pricing and services are significant pain points.
I can’t say I disagree with either side. It is safe to say that both attorneys and e-discovery providers are to blame for the lack of understanding, inefficiency and high cost of e-discovery. While there is a contingent of attorneys who have put their heads in the sand, it is also true that vendors have largely failed to explain what their products and services actually do and how they work in a language lawyers understand.
However, I am also happy to point out that both groups can be part of the solution.
Be Part of the Solution, Not an Obstruction
During the roundtable discussion at the breakfast, one person offered that his e-discovery mantra was “be a solutionist not an obstructionist.” I loved this, because I have come to learn that many lawyers are particularly uncomfortable with the “black box” that is e-discovery.
As a result of unfamiliarity with the technology and processes underlying e-discovery, lawyers sometimes view it not from the perspective of a “solutionist,” but as an obstructionist -- for instance, showing an aversion to e-discovery technology based on misunderstood notions about “cloud security” and “having to get eyes on every document.”
We can pontificate all day about how lawyers are luddites, slow to change, and willing themselves into obsolescence, (which has been done before), but those on the other side of the fence -- the software companies and vendors -- also stand in the way of seamless integration of e-discovery technology and processes in modern day legal practice.
Why do I believe some on the technical side of e-discovery pursue an obstructionist path rather than solutionist?
Because of this exchange at that very breakfast:
Lawyer: I would really like some different tools that just are not offered right now.
Software vendor: Those tools might be there, you just don’t know about them.
Based on my experience to date, most e-discovery software offerings include the tools lawyers generally want, need and will use to make their document reviews more efficient. However, what this exchange evidences is an education gap between consumers of e-discovery products and the purveyors of those products. I think the exchange might also indicate a misunderstanding by e-discovery software providers of what lawyers really want from their e-discovery tools.
Hey, E-Discovery Providers, Why Do You Make E-Discovery So Complicated?
E-discovery providers, you know why lawyers are unaware of all those nifty features your software offers? It is because the software is too damn complicated and, in most cases, the features may be unneeded.
"E-DISCOVERY PROVIDERS, YOUR SOFTWARE IS TOO DAMN COMPLICATED AND, IN MOST CASES, THE FEATURES MAY BE UNNEEDED."
Focus more on the user interface (UI), ease of use, and intuitiveness of the product. Yes, there are huge cases for which you might need every bell and whistle, but not every case with e-discovery is a “bet the company” matter. In fact, e-discovery is now routine work in many cases.
For the vast majority of cases, lawyers need e-discovery software only to help them determine if a document is relevant, not privileged, and should be disclosed or used in a legal matter. At its base, document review today is no different than 1997 when a client brought the lawyer a box of documents and the lawyer’s associate dutifully went through them and put them in three piles: relevant, not relevant and privileged. There are just a lot more boxes to go through today and this is exactly why e-discovery software is a necessity in modern litigation. Without it, lawyers simply cannot handle their client’s discovery efficiently.
This being the case, e-discovery software makers should make it easier for lawyers to create these three piles, and focus less on the bells and whistles that don’t support that cause.
This is why I love Logikcull and use it on many document reviews. The company makes a conscious decision to focus on ease of use, intuitiveness and realizes that, at the end of the day, e-discovery does not need to be so complicated. I think if this philosophy prevails, it will go a long way to eroding the aversion many lawyers have toward e-discovery.
Lawyers Cannot Wish Away E-Discovery
Speaking of the aversion lawyers have to e-discovery, let’s get back to their contribution to obstructionist ways in e-discovery. Lawyers can't wish away the fact that they must deal with electronically stored information. Unfortunately, this happens often and I simply believe that this is a product of unfamiliarity with e-discovery and waiting until the last minute to deal with it.
"LAWYERS CAN'T WISH AWAY THE FACT THAT THEY MUST DEAL WITH ELECTRONICALLY STORED INFORMATION."
To become a solutionist, lawyers have two choices: 1) Take the time to understand e-discovery or 2) Trust others to help. Either choice is equally viable and each has its own merits. (Not to mention lawyers are ethically obligated to choose one of the two or forfeit their representation).
Lawyers are well equipped to familiarize themselves with e-discovery. That is what lawyers do: they become authorities on topics on which they may know very little. Every time a new case arrives on their desk, they must grapple with new facts and new legal principles.
Similarly, there is no shame in admitting that you do not want to deal with e-discovery and would rather trust someone else to do it. In fact, if the e-discovery component of a case is large enough, most law firms are simply ill-equipped to handle it and should look for outside help — while still embracing their duty of supervision.
Bringing on a colleague or outside help to handle e-discovery tasks is not unlike hiring an expert witness. Lawyers simply cannot be expected to know everything and sometimes may need help from others. No lawyer would be afraid of hiring a forensic accountant to analyze financial transactions (even if they themselves had a strong understanding of accounting). More importantly, lawyers trust the accountants to do it. This level of trust must be extended to those qualified to assist with e-discovery.
So which is it? Will you be an e-discovery solutionist or obstructionist? The choice is yours to make because e-discovery isn’t going anywhere.
Are you a solutionist? Check out why other solutionists, like Chad, love Logikcull.