A panel of law firm attorneys discussed their strategies and predictions for analytics in e-discovery, litigation and more at Legal-week West.
Analytics are all around you. Next time you go to the grocery store, try thinking about all the different data points being collected—the total stock of product on the shelves, the varieties of bread people pick up, how many items are bought in relation to their shelf location, and so much more.
The business world has been using analytics for years, and the rate of adoption has been something similar to a steep roller coaster incline. The legal industry has adopted analytics as well, though its rise is perhaps more similar to a slightly sloped walkway.
“There’s more and more data. It’s more complex. Those problems of acquiring it and looking into it are harder and harder,” Thomas Barnett, special counsel, e-discovery and data science at Paul Hastings, told a Legalweek West crowd. “The challenge is, other than maybe everyone in this room, lawyers aren’t eager to learn this stuff. So how do we take advantage of this with lawyers who maybe went to law school because they didn’t want to learn math or science?”
The answer, in short terms, is to prove how necessary data analytics is to gaining a competitive advantage in a modern law firm. The ways firms are accomplishing that goal, however, varies, said panelists at “The Future of Analytical Strategies” panel at Legal-week West. Barnett was joined on the panel by Kathleen McConnell, senior counsel, e-discovery and information governance at Seyfarth Shaw, while Bobby Malhotra, e-discovery counsel at Munger, Tolles & Olson, moderated the session.
The E-Discovery Use Case
The panel broke up the future of analytics into two segments: e-discovery analytics and broader legal business analytics. Barnett noted that e-discovery analytics have been around in some form for the past two decades, but even today, practitioners are still abiding by an old method of taking the EDRM one step at a time for analytics purposes.
“I think that model is kind of doomed and doesn’t really make any sense, though it’s a legacy and not going away anytime soon,” Barnett said. “What I want to know is, what do we need to find the answer to our question?” For example, he explained, e-discovery attorneys should be using analytics not to find efficiencies in producing a million document data set, but instead focusing on how to specifically find the 50 documents that are needed for a case, regardless of total data set.
McConnell agreed, saying that on her team, one of the main goals with e-discovery analytics actually has nothing to do with production for litigation, but rather seeing whether litigation is actually necessary in the first place.
“How can we leverage that information early on? Right now, we’re seeing some of the analytical tools by experts leveraged later on, and by that time, we’re close to trial,” she explained. By instead leveraging information early, her team has secured settlements, leading to massive cost savings for the firm.
The Wide World of Analytics
But e-discovery analytics are a small piece of the puzzle. At Seyfarth Shaw, McConnell says her team works on a number of class action and wage and hour cases, and the data that clients provide her has been invaluable to both solving a case and predicting where future litigation may arise.
“It’s a very powerful tool to see variation between data sets,” she said. “We can see that this location had no major problems, where this one had a lot, and this one had a lot of one type of violations.”
Software can identify a lot of this variation, but for the best results, she suggested a mix of computer and human review, particularly to discern why outliers are occurring.
“There are those things you don’t anticipate when you begin working with a data set, then you say, ‘Oh wait, is that an anomaly, or is there something there?’” she said.
Barnett advised to be judicious when using software as the main way to analyze data sets for business purposes. As different platforms have different strengths, he said a combination of tools and strategies is often best for any particular question, even strategies that technologists may view as simple keyword searching and clustering. In one case he described, the firm’s predictive software couldn’t find any “hot” documents to even begin an automated culling mechanism, but a simple keyword search revealed 65 documents that the firm could then use as a the basis for deeper review.
“I look at these things on a continuum, and they can all be useful. Even when they invented the power saw, they still didn’t get rid of the hammer,” Barnett said.
The power saw and hammer alike, though, will only continue to become more refined and efficient, which returned the panel to the initial question: Will attorneys actually embrace the future? Barnett postulated that they will, but only if new technologies embrace the way attorneys act and think, rather than being “engineers coding for engineers.”
“I think the answer to getting people to use these tools is thinking about how they’d interact with them different,” he explained. “Lawyers are used to asking and answering questions; don’t talk to them about email threading… interact with them on a human level.”
14 June, 2017