Alberto Gonzales and Loretta Lynch Alberto Gonzales,80th Attorney General of the United States, and Loretta Lynch, 83rd Attorney General of the United States, at Legalweek 2019. Photo: Carmen Natale/ALM

 

I recently had the opportunity and honor to introduce Alberto Gonzales, 80th Attorney General of the United States, and Loretta Lynch, 83rd Attorney General of the United States, as they kicked off Legalweek 2019 with a State of the Industry Keynote Conversation. Their perspectives on the trends and evolution of the legal industry were insightful and can help legal industry participants plan ahead as we navigate the ever-changing waters of technology, data, and law.

In our prep sessions for the State of the Industry delivery, I asked both Attorney General Gonzales and Attorney General Lynch what one thing they could point to as having the most impact on innovation in the legal industry. AG Gonzales answered that the Department of Justice is rooted in tradition and that innovation takes time. AG Lynch reminded me that innovation isn't always about technology, but also about policy innovation and innovation in the law itself. Policy is driven by information, which means we must make sure that we can learn things from the data that we manage. When we deliver business intelligence relating to technology-enabled services, we are empowered with a better informed foundation on which policy can be built.

I was struck by their optimism. They had tremendous respect for one another. They honor the role of the Department of Justice. Yet they were candid about the challenges that face the department. They are optimistic about the future of the department, even given their understanding of the magnitude of those challenges.

Importantly for those of us who are involved in the analysis of electronically stored information, both noted that cybercrime is one of our greatest threats. Ensuring that we have policies and practices in place to help protect us from cybercrime is a key focus. Establishing cooperative processes that identify cyber threats as close to real time as possible, across government departments, and even among competing commercial parties, will be a core component of any cyber defense strategy, because threat vectors are so dynamic.

We have opportunities to help our clients understand the issues. While we don't necessarily drive policy, we can drive the education efforts to make sure that our clients have the information that they need to understand issues at the intersection of policy and technology.

They also highlighted cases that require access to suspected criminals' electronic information, such as mobile devices. What are the policies that will allow the Department of Justice access to the information that they need to put behind bars the criminals we have entrusted them to prosecute? This creates a dynamic tension between privacy and access to data for the purposes of justice. This is going to be both a technology issue and a policy issues that we face together for years to come.

Beyond the keynote, themes driving the evolution of technology-enabled legal services emerged from the various tracks presented during Legalweek. For example, automation of legal processes is a strong theme, and legal automation continues to mature. Information continues to grow in both variety and volume. As a result, we need automation so we can continue to process and understand electronically stored information at reasonable costs in the context of proportionality.

Another theme was the increased role of non-traditional providers of legal services. Not every legal task globally is necessarily going to continue to need to be provided by a law firm. A potential segmentation of legal services into critical services and non-critical services is emerging, and there may be different business models associated with each of those segments. For example, the defense of a corporate client in a "bet the company" securities class action lawsuit may be defined as a critical legal service, while the administration of non-disclosure agreements may be defined as non-critical. Non-critical services are more susceptible to automation and are more likely to be provided by non-traditional providers. Critical services, on the other hand, provide less opportunity for automation and less opportunity for non-traditional providers of legal services.

The third emerging theme was related to data-driven legal processes, including discovery. Cloud-based legal service offerings will enable more comprehensive data-driven workflows and open up new opportunities for valuable business intelligence. While hosted platforms will still continue to be used when appropriate, cloud based solutions will power ease-of-use, accessibility, flexibility, and extensibility.

Finally, information governance continues to evolve as a theme. There is an expanding awareness of the obligations of information governance. It is required in the ordinary course of business in compliance organizations, and legal departments rather than just being a transactional discovery task. The market appears ready to finally make progress in the adoption of information governance solutions.

What these themes all boil down to is creating efficiencies in the legal industry. With data continuing to rise, privacy implications making headline news, and breaches destroying organizations, the legal industry needs innovative measures to keep up. And while some of the innovation comes in the form of technology, such as cloud-based offerings and artificial intelligence, or in the form of new innovative policies, much innovation will come from lawyers changing their mindset regarding the intersection of technology and the law.

 

Cliff Dutton is the chief innovation officer at Epiq. He drives business model innovation and leads the company's product strategy, both for proprietary software and third-party software integrations. Dutton served as senior vice president, director of strategies and director of eDiscovery at American International Group, Inc. (AIG), where he led transformational change in the legal operations center, focusing on legal vendor management, electronic discovery process innovation, alternative dispute resolution and alternative fee arrangements.