NEW POST: Thoughts on that NY Times article on e-discovery – “It’s the technology, and it’s a game changer”
Mar 7th, 2011 | By mrposse | Category: Contract Attorney Market: Trends, Top Story
7 March 2011 — In case you missed it over the weekend, the New York Times published an article titled “Armies of Expensive Lawyers, Replaced by Cheaper Software” which discussed the “new e-discovery software that can analyze millions of documents in a fraction of the time, and at a fraction of the cost consumed by human lawyers, even deducing patterns of behavior”. It discussed issues that are not news to us in the market: the explosion of electronically stored information, the technology used to analyze that data (mentioning Autonomy, Blackstone Discovery, Cataphora and Clearwell Systems) and how all this has disrupted the legal job market (on the heels of the legal sector losing 2,900 jobs in February in the latest report).
For the full New York Times article click here.
And as the article rocketed across Twitter, Facebook, JDSupra, etc. over the weekend a number of the leading lights of e-discovery and technology offered their critiques of the article. Here are just a few: Ralph Losey, Ron Friedmann, Randall Parker and Stephen Levy.
As we have discussed in numerous past posts, the significant impact of this technology has been not on what the New York Times calls the “expensive” lawyers but on those of us in the lowest paid band - contract lawyers.
When we started The Posse List in 2002 our base was contract attorneys, the lawyers who worked on document review and production — the “right side” of the EDRM. These cases required an army of attorney and paralegal document reviewers — called in like a “posse” at the last minute, as needed. Law firms adopted the cost-saving manufacturing principle of “just-in-time” production, and applied it to a service industry: hire attorneys “just when you need them” but only on a short-term, part-time basis.
But as document processing and analysis technology improved, the need for these large numbers dwindled. But there was an increase in the need for greater sophistication and expertise in ESI management and e-discovery. Now our members include contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, all manner of e-discovery companies, legal media entities, and numerous legal support professionals.
The first task in any transition to to understand the technology. All of us have been exposed to some of the technical hurdles that litigation support teams face, but you need a deeper understanding of them. One way to do that is learn how data is processed for a case. We post numerous webinars, webcasts and events on technical training.
As Ralph Losey says in his critique of the New York Times article, attorneys need to retool. Quoting Ralph: “The new technologies advancing search and review automation discussed in the story do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own”.
It is why at The Posse List we have been publishing posts which we hope are found helpful such as A lawyer must be a technologist and Transitioning from law practice to more technical litigation support.
You need to grasp the technical challenges that are presented by the data processing process. Along the same lines, learn about data acquisition and preservation methodologies. You know how important a chain of custody is and why the hash value of the data you present in court needs to match what was initially acquired. But can you make a bitstream copy of a client’s hard drive with a full audit trail?
The biggest issue for attorneys making the transition is the need to bridge the gap between legal and technical within e-discovery. Access our Electronic Reading Room site (click here) to bone up on the basics – and the advanced bits – of e-discovery.
And you must become technology savvy if only for the simple reason to increase your abilities, advance your career — in other words propel your personal agenda. Donna Seyle posted an article (you can read it on JDSupra by clicking here) in which she said lawyers must “embrace technology”. While her article was geared toward the law firm and innovation she addressed the existing situation for all lawyers: the massively influential rise of social media marketing, blogging, networking, data management, etc. demands it. And no more so than those of us involved in e-discovery.
It is why we set up two job listservs that post jobs for lawyers needed in various legal technology areas and legal project management (to get on any of our lists go to our home page and click on “Subscribe” in the top right-hand column).
You can do simple things like working your way through the Sedona Conference E-Discovery Glossary (now in its third edition) which is the most comprehensive e-discovery we have found. It provides definitions/explanations of many terms commonly (and not so commonly) used in e-discovery and digital information management. You can download it for free by clicking here.
Or look at our weekly “Top 10 … plus more” list of interesting e-discovery blog posts, and vendor views on electronic discovery related issues which provides vendor views and industry news from electronic discovery-centric vendors and commentators (for the latest from both click here).
And go to a legal technology conference near you. All offer free admission to the exhibit hall (those that have them) where you can meet technology vendors, see the technology at work behind e-discovery, etc. Many allow free access to students or limited 1-day passes for free admission. We attend about 15 conferences a year in the U.S., and about 8 in Europe and Asia. We meet vendors, gain info — and sign up vendors who post jobs on our job lists. There are conferences all over the country and the world and we post a list every week.
Our membership list is diverse – contract attorneys, forensics consultants, paralegals, in-house counsel, law firm attorneys, solo practitioners, e-discovery companies, legal media entities, and numerous legal support professionals — and we are trying to be helpful to all of our members.
While much of discovery will inevitably be audited and there will be some tech related positions available. I think this will be a tiny niche of the market as opposed to a widescale solution for the many contract attorneys who depended or have depended on document review for income.
For those attorneys who are interested in developing themselves as freelance lawyers and marketing themselves for more substantive legal work, I encourage you to register on the online service Hireanesquire.com. I am a contract attorney and a co-founder of this site.
I agree with Ms March’s position that even if contract attorneys retooled, there are more of us out there than there are positions linked to technology. I also believe that many attorneys entered law school because we were not good at or didn’t like math or science, so there will be an uproar from people having to learn something new that they never liked to begin with.
I have worked with Cataphora’s emoticon software. A couple years ago it was still really basic, if someone wrote in an email that included a swear word it had an angry emoticon. Not very heplful. Has it gotten that much better?
And nice job, Posse List, linking all the services that you provide for making the transition.
I am an attorney with a practice background in complex products liability litigation, but I am new to the e-discovery contract market. This website is a gold mine of information. Thank you!!!
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Who Will be Retooled?
In his recent blog posting critiquing the much-commented upon New York Times article on the use of technology to streamline and dramatically facilitate document review and its alleged dire impact on employment opportunities for practitioners, Ralph Losey, a friend and esteemed faculty member of Georgetown Law’s Advanced eDiscovery Institute and its eDiscovery Training Academy writes:
Lawyers Will Be Retooled, Not Replaced
“The new technologies advancing search and review automation discussed in the story
do not replace “expensive lawyers” as alleged. The new software does, however, force lawyers to learn new, more highly skilled tasks. The article seems to overlook the fact that the advanced e-discovery search and review technologies all still require lawyers to operate. They still require skilled attorneys to fit the technologies into a larger legal methodology. They still require the ESI to be understood. The software programs do not run themselves. They are only a tool. They are just a hammer, and without a carpenter, they will not build a case on their own.”
As a founder (together with my co-chair at Georgetown’s Advanced eDiscovery Institute, Kevin Brady) of a program to provide instruction and technical training in the art and science of eDiscovery Practice Support, Georgetown’s new eDiscovery Practice Support Project, I am delighted to read of Ralph’s – who is one of eDiscovery’s leading lights in education – view of the semi- hyperbolic New York Time’s piece by John Markoff, and avidly agree with his position that Markoff has fallen into the trap of the Luddite Fantasy – that technological advancement must inevitably result in an overall decline of the gainfully employed.
But Ralph’s posting also provides a cogent argument for the creation of comprehensive courses that provide training in the technology, processes and project management of practice support in eDiscovery. The new Georgetown project will provide such courses of instruction for both practitioners and practice support professionals and is focused, with laser intensity, on nurturing the re-tooling of which Ralph writes. However, who will be the ultimate beneficiaries of such re-tooling remains a question.
With that question in mind, three bitter truths should be examined here; the existence of which, I submit, prove the worth of Georgetown’s eDiscovery Practice Support Project.
The first bitter truth is that it is, at present, very difficult (if not impossible) to find well-taught, formal technical training in eDiscovery practice support. The instruction that does exist is not standardized and, in many cases, involves non-systematic and on-the-fly training, conducted by often harried internal personnel under much less than optimal, catch-as-one-catch-can, learning conditions. Indeed, such training is so lacking and what does exist so problematic in its non-uniformity that an interviewing law firm or other organization rarely has a gauge by which to reliably measure the level of capability and aptitude of a candidate for an eDiscovery practice support specialist’s position. “Where did you get your training” is not an inquiry worth making, since the answer can already – and mostly only – be found in a resume’s recitation of past employment experience (however unreliable) and the often forlorn hope that a wealth of job experience will translate into a wealth of knowledge in the technologies and methodologies of practice support. In the not distant future, Georgetown’s eDiscovery Practice Support Project will permit a simple and direct response to such query: “I was accredited after completion of Georgetown Law’s eDiscovery Practice Support Programs.”
Another, more bitter truth, is that, in the law firm’s often rigid hierarchy, the discipline of eDiscovery Practice Support itself has been frequently disparaged and only relatively has it been the recipient of the respect that is overdue. For the truth has been revealed, for both practice support professional and practitioner alike: the law and the hard science involved in the handling of Electronically Stored Information (ESI) have reached a critical juncture in connection with litigation practice; we are in an era when the technical aspects of discovery frequently dominate complex litigation and success in litigated disputes often turn upon the capability and savvy of counsel and practice support professional, that, in fact, transcends the law and derives from a solid grounding in the science of Electronically Stored Information and the art and process of Project Management.
As for the third and last aspect of bitter truth, it is also somewhat comforting, in that eDiscovery practice support will provide a much needed employment alternative for the technically-minded and team-building capable, but otherwise employment-stymied, J.D. As a result of the stark realities of a weak job market, a new pragmatism and perspective prevails among law students and entry level attorneys. Many of these new entrants and prospective entrants to the profession understand the growing importance of technology to the ultimate success of litigation. And some are now viewing practice support as a viable career path amenable to both continuing employment and personal development and, for some, a better “quality of life” in comparison to the litigator’s lot.
But here is where I have to demur and, with all due respect, take some issue with Ralph’s Losey’s critique of Markoff’s NYT’s eDiscovery article. I believe it is very possible that although, with the deployment of new and more advanced technology, fresh employment opportunities will, in fact, reveal themselves for those engaged in eDiscovery, the new roles created may not be those that most practitioners will have interest in pursuing. Yes, it is true that legal strategy and the ultimate use of the fruits of these new and emerging technological tools lie in the hands of the litigators (and having a grounding in practice support will be vital) but, the wielding of the technological tools themselves will be guided by other craftsmen; in most instances, not attorneys, but highly-skilled eDiscovery practice support professionals. And, yes, included among these professionals will be a significant number who have attained a law degree, but followed a career path leading to the application of computer technology to the law, instead of entering into the practice of law itself. I believe, however, it is unlikely, that most who have pursued the “soft” – no matter how complex and fascinating- sciences into legal practice, will harbor the critical in depth interest (nor the aptitude to support the interest) necessary to become profoundly engaged in the hard sciences of eDiscovery. Most will not; and, in fact, why should they? This is not the muse they pursued in seeking their life’s fulfillment; it is not the vision they nurtured for their future.
So that in the final analysis (although it is, in reality, a long stretch to the scenario that – as mentioned by an interviewee in Markoff’s article – one attorney will be replacement for 500 contract lawyers) I must – regrettably – disagree that the eDiscovery technological revolution will be as sanguine for the aspirations for career advancement of the legal practitioner as Ralph envisions. And many of those in – transition practitioners that Ralph sees benefiting from the brave new legal/ technical world, will have to consider radically changing their capabilities and roles within their organizations; and even, conceivably, begin their career journeys wholly anew – and formally take on the newly vital role of eDiscovery Practice Support Professional.
And for all who decide to do so (and for others in need of the vital grounding only), I am happy to say: Georgetown will be there.
[...] LinkedIn, and prompted a flurry of thoughtful responses, most notably from Ralph Losey, Chris Dale, Posse List, and Jerome [...]