Electronic Discovery

 

In the legal industry, what exactly does “digital transformation” mean? Nearly 40 years ago, the late Prof. Anthony D'Amato examined the idea of robot judges in his paper “Can/Should computers replace judges?” The idea of AI replacing lawyers and eliminating the jobs of recent law graduates and seasoned veterans alike has haunted a largely traditional and risk-adverse industry. But evidence shows that the practice of law is among the least likely fields to be automated and replaced by machines.

As with most legal analysis, the answer is “it depends.”

Most, if not all, of the world's largest firms have already begun the digital transformation by adopting technologies to streamline customer-facing activities, improve operational efficiency, and automate tedious, process-heavy work. This article will explore some of the ways that modern lawyers are transforming their practice with technology, both at law firms, corporate legal departments, and government roles.

If It's Not Broke, Don't Fix It?

What has been holding the legal industry back? The biggest obstacles are natural resistance to change and the special importance of trust, attention to detail, privacy and security in the legal profession.

Law firms have a well-earned conservative reputation. Traditional processes and practices in place for decades rely heavily on paper-based methods. Analysis from the 2018 Report on the State of the Legal Market by Georgetown Law and Thomson Reuters concludes that many firms ignore strong indicators that old approaches are no longer working. Instead they, “choose to double down on their current strategies rather than risking the change that would be required to respond effectively to evolving market conditions.” In one way, this approach stems out of the crucial role that precedent plays in the legal industry. The principal of stare decisis underlies our legal system and instructs judges that like cases should be decided in like ways. A mandate to maintain and adhere to tradition.

Attention to detail in the legal industry is crucial. A single comma can make a million-dollar difference in a commercial contract. A single email can potentially turn a billion-dollar lawsuit. Legal professionals have a hard time trusting machines that can confuse dogs with muffins on such detail-oriented analysis.

Another main concern is confidentiality and security. The attorney-client privilege is founded on the notion of trust and confidence. The legal system protects even incriminating communications on the philosophy that it fosters trust, leading to fuller disclosure from the client and better legal advice from the lawyer. With data breaches and leaks on a daily basis, law firms dread being the next headline. Meanwhile, cyber criminals are increasingly targeting law firms exactly because their clients trust them with some of their most valuable, sensitive documents. If a firm is breached, the consequences can be catastrophic in a trust and reputation-based industry.

A 2018 study of legal operations leaders within the Fortune 500 and 1000 reveals that there is a strong focus on security. A full 91% reported that they have data security concerns around distributing electronically stored information to multiple discovery vendors and law firms. And their concerns are being taken much more seriously, as 91% of survey respondents also reports increased influence over security decisions, driven heavily by enhanced regulation and privacy concern.

But the digital transformation is good news for lawyers outside and inside alike. A shifting workforce is much more comfortable with adopting new workflows and effectively leveraging technology. Advances in computing have democratized AI. Cloud technology has made it safer and easier to manage legal content. And the zero-trust movement has put security concerns front and center. Security is no longer the enemy of digitization.

The Impact of Emerging Tech on Legal

The same legal operations study points to a shift in willingness to adopt emerging technologies like AI and cloud solutions. When asked about these technologies, 83 percent of respondents rated their organization's current use of cloud-based tools at a three or above on a 1-5 scale. Further, an impressive 94 percent rated their company's openness to implementing cloud solutions in the coming year at three or above.

The survey also reveals a growing use of AI in the industry with 34 percent of respondents reporting to be currently using AI within legal departments (up from 23 percent in 2017). This growth is expected to continue with 66 percent of respondents believing that spending on AI solutions will increase in 2019. The willingness to prioritize the adoption of new technologies is evident in survey findings, which is impressive given the historical resistance to change in the industry.

The outcomes of AI solutions in legal will be significant: better efficiencies and performance, hundreds of thousands of dollars in cost savings, more innovative products, and improved client services everywhere. And by automating mundane time intensive tasks, highly skilled lawyers will be able to focus on more value added (revenue generating) activities that require their human expertise. With documents at the heart of any legal firm's practice, many firms are taking a document-centric approach to AI with exciting results.

For example, unsupervised machine learning technology, meaning no human feedback or teaching is provided, can help lawyers retrieve valuable information from their documents by recognizing previously unknown patterns from the data. Another example is knowledge managers using unsupervised machine learning to identify experts internally based on the documents and content they author. Supervised machine learning, where human inputs are provided and used to train the machine, is already helping lawyers rapidly access relevant content. Machines can now be trained to think like lawyers and look for specific digital evidence that could help a case. Tools like “predictive email filing” leverage AI to automatically categorize and file emails for better work product management and access.  Finally, next-gen AI applications already being piloted include sentiment analysis and auto-summary tools to further analyze communications.

The Rising Influence of Enterprise Information Management (EIM)

Law firms and corporate legal departments must continually evaluate and update their business processes to remain competitive. Additionally, new updates to the ABA Professional Rules of Conduct place an ethical obligation on practicing attorneys to understand the “risks and benefits associated with relevant technology.”  Firms are sitting on huge piles of data that they can't find or easily tap. This is rigid, limiting and costs them revenue. Enterprise information management (EIM) solutions can help law firms optimize the value of information, while minimizing risks. Taking control of information creates the opportunity for growth and responsiveness.

There are many pieces to the EIM puzzle, but core components legal firms should look to first include enterprise content management (ECM), e-discovery, and search capabilities that can be done on-premise or in the cloud. By employing these technologies, firms can streamline essential processes such as managing, securing and accessing content, client onboarding, external sharing and collaboration, and legal data collection.

Take the UK's Serious Fraud Office (SFO) for example. The SFO investigates and prosecutes serious or complex fraud, bribery and corruption, with each case involving huge volumes of documents and data which need to be analyzed. For perspective, the Rolls-Royce fraud investigation, settled in 2017, involved about 30 million documents. With the use of digital technology, like e-discovery, the SFO expedites investigations and saves caseworkers time by automating document analysis and enabling them to focus on the more vital elements to their investigations.

AI and machine learning technologies are emerging from the beta phase and taking center stage to transform traditional information governance solutions into key enablers of the intelligent connected law firm. With the right solutions and approach, organizations can now put their massive amounts of data to work and gain unique insights that will allow firms to work smarter, faster and be more effective.

 

Adam Kuhn is the Director of Product Marketing at OpenText Discovery and an eDiscovery lawyer in San Francisco, California. At OpenText, Adam is responsible for legal technology marketing and content programs with a focus on the innovative application of AI to legal services. Adam received his JD and MBA from the University of San Francisco and his BA from New York University. Reach him at [email protected].