Ask any GC what his or her fastest growing expense line is and they will likely tell you that it’s litigation. Furthermore, most of that expense is not the cost of trial, but the cost of getting to trial.
Studies show that document review in discovery accounts for 50 to 90 percent of total litigation expenses in any given case, and one 2010 report on e-discovery by West Publishing pegged document review at 70 percent of discovery costs in litigation. Furthermore, the problem is rapidly getting worse, as companies pile up terabytes of potentially relevant and searchable information in the electronic age, and law firms continue to handle that information with cumbersome and archaic manual reviews.
So what is the cost-control solution that law firms can present to clients?
At least two courts have acknowledged in 2012 that the technology of “predictive coding” is a legally viable means of dealing with exploding e-discovery and document review costs. The U.S. District Court in the Southern District of New York in Da Silva Moore v. Publicis Groupe and the Circuit Court for Loudon County, Virginia in Global Aerospace v. Landow Aviation have endorsed the use of predictive coding subject to judicial review of the technology and methodology involved.
This coding allows the top, senior level lawyers in a case to “train” a computer to recognize and accurately tag documents that are relevant or irrelevant, privileged or non-privileged, proprietary or public. Repeated studies have shown that the best predictive coding technologies are not only far faster and dramatically less expensive than human review, they are much more accurate and way more consistent as well.
Whereas some predictive coding technologies have delivered 95 percent accuracy rates or greater, human reviews (by teams of associates and paralegals) have generally scored much lower, averaging barely more than 50 percent accuracy in some tests, as scored by senior reviewers in spot checks. (See: “Technology Assisted Review in e-Discovery Can Be More Effective and Efficient Than Exhaustive Manual Review” in Richmond Journal of Law and Technology in 2011; ”Automated Document Review Proves Its Reliability,” in Digital Discovery & e-Evidence, Nov. 2005; and “Document Categorization in Legal Electronic Discovery” in the Journal of the American Society for Information Science and Technology in 2010).
Some law firms are resisting the inevitable application of this technology to discovery, filing objections to its use and conducting expensive hearings to block it.
But others obviously see it as an opportunity. More clients would choose to have their day in court if it was not so darned expensive to get there. More lawyers would be enthused and energized by their practices if they involved more trial time and less tedious and endless document review. Most importantly, more clients would see trial lawyers as “valuable” instead of “necessary evils” and those lawyers who would adopt and master predictive coding would have more clients beating a path to their doors !
Lawyers who are resisting the tsunami of progress and technology are not only foolish, they are risking death. Those who choose to ride the wave instead of fighting it will not only survive the tide of change, they will prosper because of it as their competitors are wiped out.