Confessions of an E-Discovery Lawyer: We’re Light Years Behind

After what must be millions of hours of talk, we haven’t really even walked the first-generation TAR walk.

, Legaltech News

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After what must be millions of hours of talk, we haven’t really even walked the first-generation TAR walk.

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What's being said

  • David Baldwin

    One contributing factor that we notice as "non-lawyer technology professionals" is that the personnel stratum actually responsible for executing document reviews--typically 3rd-5th year associates--is only in that position for the briefest possible time. I have yet to met such an associate who was so enamored of document review that they decided to a) keep doing it beyond the time during which they had no choice, and b) look into getting good at it let alone seeking to improve the process. Hence the "decision maker" most likely to opt for this technology for a given review does not stay in that position long enough to effect an institutional change--they simply move on too fast. And, as middle management, is poorly placed to be making risk-taking choices in favor of "new" technology and techniques. Sure, partners remain in place and can make whatever choice they want, but partners have also long since ceased to want to concern themselves with the technicalities of document review.One note regarding process--one thing that linear review has going for it in the way of inertia is that pretty much anyone can feel very confident in their grasp of the technique: pick a document, review it, pick the next document, repeat. TAR as a technology is certainly maturing, but the technology has a ways to go in terms of offering comprehensible, reassuring workflows (i.e., techniques--the key to success with technology) and application interfaces to match. The aforementioned senior associate has a wide gulf to cross between the doc review technique they learned as a new hire and this new, confusing, complicated approach that someone (often us) is telling them is "better". I don‘t blame them for balking.

  • Joshua Neil Rubin

    Great analysis. I think that one reason even knowledgeable lawyers don‘t adopt TAR is that clients couldn‘t credibly criticize a lawyer for using linear review. Sadly, linear review remains the norm. And linear review may be flawed but at least anybody can understand the process. On the other hand, I could imagine a client criticizing a lawyer for using TAR and missing something, even if the client had signed on. The lawyer‘s defense would be that using TAR is statistically validated and allows proportional review, but the fact is that TAR algorithms are in a black box, and so the lawyer can‘t explain exactly why a particular document was missed.

  • Craig Ball

    I‘m not reluctant to point the finger at the lawyers, but don‘t let (all) the vendors and their current pricing models off the hook so swiftly. Also, don‘t let the clients off the hook at all. Of all those you‘ve ticked off, which group faces the biggest self-inflicted injury by pushing tools that save money by reducing legal fees? Blaming the lawyers for being slow to leap off the gravy train alone is like saying we have a healthcare crisis because not enough sick people commit suicide. The clients have to take a stronger stand and turn a deaf ear to the naysayers and fear mongerers. It‘s their money, and it‘s their savings.

  • Windy Brown

    Indeed, Tom and John. Sadly the legal profession is surprisingly still operating as if it were a Guild from the Middle Ages. Without a greater proliferation of required practical education from law schools and some sort of required showing of technical understanding for members from the Bar, the legal profession will likely remain in low gear. There are leaders like Mr. Vance and others too numerous to mention here, thank goodness- but that‘s a hard task for him and the others to take on independently. Ultimately there needs to be fundamental structural change, as difficult as it might be.

  • Jason McMurray

    Mr. Tredennick nails down part of the problem. The other is that no one is doing client side processing utilizing parallel computing to reduce the verbose amount of useless data. Part of this is that there appears to be zero forethought in what specific data is sought. Secondly no one desires to come to the realization that time does in fact translate into dollars. If I can roll multiple code sets of of ERDM‘s UTBMS into one process, then I should be able bring an action to a quicker resolution. Does not quicker resolutions equate to higher net profits?

  • Andy Wilson (Logikcull.com)

    It‘s a combination of poorly designed software for a generally low-tech audience sprinkled in with fear of the unknown. It also doesn‘t help that lawyers aren‘t typically rewarded for being efficient.

  • Erick Mann

    TAR may be nice to use but this is FAR from the RESOLVE!The Legal Industry is NOT Compliant to State and Federal Laws themselveswhen it comes to IDTheft in the work Place!Legal Industry must stop thinking "IT or ENCRYPTION" as the only answer to securing information! As an authority on IDTheft ABC News contacts me as an authority... abc13.com/416594/There are 4 components to IDTheft Laws. You the Legal Industry are not adhearing to those basic Laws yourself!Lawyers required to protect personal information under new federal ruleApril 1, 2009 --

  • John Tredennick

    Geoffrey:Thanks for a thoughtful article. I suspect there are two reasons why TAR has not reached wider adoption. First, the TAR 1.0 processes were complicated and stilted. Senior lawyers had to click through thousands of irrelevant "training" documents before review could start. And, you had to repeat the process when new documents arrived or you wanted to investigate a new issue. TAR 2.0 eliminates those bars because the process allows reviewers to get going immediately and let‘s senior lawyers focus on case strategy. Plus, you don‘t have to start over when new documents arrive. You just keep going until you are finished, which means you have found a reasonable number of relevant documents. It can be as simple as that and work for any size case.But, I think you neglect a more important reason why lawyers haven‘t embraced TAR. Aside from the fact that it is new (which is tough for our profession), there is the point that TAR 2.0 can cut reviews by 90% or more (TAR 1.0 isn‘t as effective). That means a lot of billable work goes out the window. The legal industry (lawyers and review companies) live and die by the billable hour. When new technology threatens to reduce review billables by a substantial amount, are we surprised that it isn‘t embraced? This technology is driven by the corporate counsel, who are paying the discovery bills. As they catch on, and more systems move toward TAR 2.0 simplicity and flexibility, you will see the practice become standard for every review.

  • Tom O‘Connor

    excellent comments but where do law schools and bar associations fit into the equation?

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