The E-Discovery Balance -- Technology And The Legal Team

Last week we looked at the role of some software technology in e-discovery, concluding that while software is an important tool, it is not a substitute for attorney participation.

Freelance writer Jason Krause wrote an interesting piece last month for Legal Technology News that delves further into the burgeoning studies being conducted to try to determine that optimal balance between technology and human activity in large scale data collection.

Krause highlighted the Text Retrieval Conference (TREC), an initiative co-sponsored by the National Institute of Standards and Technology (NIST) and the U.S. Department of Defense. One of TREC's missions is to encourage research in information retrieval based on large text collections.

According to Law Technology News, "for several years now, the Text Retrieval Conference Legal Track has tested different types of computer searches to create industry best practices for searching electronic records in litigation. In 2008, the project added a new investigation into the role of human researchers in improving the search results from computers, called the Interactive Task."

"Dan Brassil, manager of Linguistic Technology with H5 says, "Computer algorithms are getting better, but they will never get the same results as when there is a person in the loop or human intervention is part of the search process. The question is where the humans fit into the picture."

"Researchers in the TREC project are discovering there are roles that are best provided by machines and those done by human beings. "We use humans to do what they are very good at, which is to make nuanced judgments in specific cases," says Brassil. "But they are not so good at judgments across a lot of documents. People get tired, allow inferences to creep in, and you never know what a person will say in terms of consistency. That's where machines come in."

While the test groups employed fundamentally different approaches (e.g. using complex questionnaires to refine the up-front search scope vs. employing a computer-based learning tool to rank responsiveness), the TREC researchers concluded:

"Machines should do the grunt work of review, but members of a legal team need to:

• Consider scope, timing, and nature of the request to determine what approach may work best. Think about whether there is time to gradually seek every responsive document possible, or if a more targeted approach is needed.

• Identify the custodians who understand the documents in a collection and discover what they know about those documents.

• Capture the language from responsive documents and incorporate it into search terms that approximate the language actually used.

• Continually perform control checks. If responsive documents are not being found, reconsider and refine search strings.

Unfortunately, there is no definitive answer about the division of labor between man and machine. But the TREC topic authorities noted that teams that failed to think ahead about how to define relevant documents and relied on computing power to find documents fared the worst. "It's well understood that human review and machine review have limitations," says TREC Legal Track researcher Gordon Cormack. "In the next few years we hope to find the balance between them that mitigates those natural flaws."

Challenges of Constant Connectivity and Instant Communication

A couple articles this week highlighted the challenges and considerations arising from our current state of constant connectivity and instant communication.

We've all hit 'send' on an email, only to feel that wave of doubt. Should I have sent it? Could it be misinterpreted?

If that concern with an overly hasty missive exists with email -- which at least forces us to slow down a little and compose a thoughtful (hopefully) message -- the potential for rushed and ill-considered communication exponentially increases with text messaging, which is by nature immediate and fragmented.

Other potential pitfalls of instant communication for lawyers were assessed by Samantha Southall at Law Technology News, including texts from new/potential clients, inflammatory texts from opposing counsel, texts that contain derogatory comments about colleagues or judges, and inquiries from reporters.

One of Southall's observations turns out to be the best rule of thumb: Treat every electronic response as though it is going to be seen in print, attributed to you, in a newspaper. And we'll take it one step further: Act as though your comment in that newspaper is going to be read by your mother.

The other timely article appeared in law.com, where Harry Valetk discussed the challenges of a socially networked jury.

Valetk's conclusion that trial courts must "adapt to jurors hopelessly dependent on information" includes the following focal points:

Probe jurors during voir dire on Facebook and Twitter use. Establish frequency of use and a juror's ability to refrain from using social networking tools during trial.

Monitor juror Facebook and Twitter activity during trial. Tools like Social Mention allow you to search blogs, microblogs, networks, videos and much more. This engine also allows you to create alerts for your search terms that you can have e-mailed to you daily.

Ask the trial judge to remind jurors that they may come forward to report a fellow juror's misconduct. The judge should also remind jurors about the fines and other potential consequences for failing to follow the court's ban on communicating with others about the case.

Warn jurors before and after every jury break about the court's ban on communicating with others about the case during trial, including the use of Facebook, Twitter and other web-based tools.

Explain the logic behind the presumption of juror prejudice. Jurors today may be more receptive to complying with court-ordered bans on communicating with others during trial if they understand the logic behind the ban.

Project Management for Attorneys

Following up on last week's post discussing LegalBizDev's survey of AmLaw200 decision makers, Legal Technology News highlights a crucial component in the evolution of alternative billing:

Project Management in the legal profession.

No one would argue that attorneys currently manage projects every single day. But that's not the same as Project Management. Anyone who's dealt with any sort of construction, from home remodeling on up will agree with the following from the LTN article:

"According to the chairman of a firm with more than 800 lawyers, "... in the world of construction, architects, engineers, and contractors have been working on a fixed-price basis ... for a long time ... There is a body of learning ... about how to estimate, how to contract, how to define scope, how to manage changes, allocate risk, how to manage fee disputes, delays, [and] changes in scope [that could] be adapted to the legal profession."

That's Project Management.

One reason it's important to single out Project Management as crucial to the success of alternative billing is because it is a key skill set in which most attorneys have not been trained.

In fact, not only have they not been trained in it, many lawyers have been encouraged to do just the opposite.

"As a CFO of a firm with more than 1,500 lawyers explained, most lawyers have worked their entire careers under the billable hour model, in which "the more hours that got charged, the more money [they] made. And so they've never really had to manage [budgets]."

Crafting accurate estimates, clearly defining changes in scope, and providing timely discussions about change-orders are the keys to success with "fixed price" billing.

Which raises the very interesting idea of a legal career track specifically for Legal Project Managers, such as the initiative being undertaken by Orrick, Herrington & Sutcliffe.

And, short of a fully committed in-house project manager, it would seem to make sense for attorneys to be trained in the fundamentals that many other industries exercise when it comes to bidding and executing fixed-rate services.