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Once upon a time, before the internet was invented, the [[JC]] was a clerk in a commercial litigation firm in the antipodes. One of the most tedious jobs was preparing lists of documents for discovery — disclosure to the opposing side — in forthcoming litigation. There could be ''hundreds'' of relevant documents. Even ''thousands''.<ref>In a huge, high-profile case of the sort the [[JC]] never saw, conceivably hundreds of thousands.</ref> The poor clerks had to identify each, name it, date it, record by whom it was sent and to whom, and designate its [[privilege]]. | Once upon a time, before the internet was invented, the [[JC]] was a clerk in a commercial litigation firm in the antipodes. One of the most tedious jobs was preparing lists of documents for discovery — disclosure to the opposing side — in forthcoming litigation. There could be ''hundreds'' of relevant documents. Even ''thousands''.<ref>In a huge, high-profile case of the sort the [[JC]] never saw, conceivably hundreds of thousands.</ref> The poor clerks had to identify each, name it, date it, record by whom it was sent and to whom, and designate its [[privilege]]. | ||
Now this | Now this being before [[email]] — the [[Facsimile|fax machines]] was ''à la mode'' — there weren’t that many documents, nor any automated means of cataloguing them. | ||
How times have changed. The information revolution has created not just a new class of electronic documents with new classes of [[metadata]] but a whole new volume of information: the ease of creating, changing, duplicating and circulating means that the number of potentially relevant documents | How times have changed. The information revolution has created not just a new class of electronic documents with new classes of [[metadata]] but a whole new ''volume'' of information: the ease of creating, changing, duplicating and circulating means that the number of potentially relevant documents is as likely to be be in the millions as the thousands. | ||
Automated tools, using [[neural network]]s, [[machine learning]] and other kinds of [[AI]] have emerged to handle discovery analytics. | |||
===[[Parkinson’s law]] for the digital age?=== | ===[[Parkinson’s law]] for the digital age?=== | ||
''What follows is a needlessly formal argument for the proposition | ''What follows is a needlessly formal argument for the proposition “the cost a person will incur to resolve a dispute is a function of the amount at stake and the merit of her claim and not the tools available to conduct the litigation”. In other words, benefits of [[legaltech]] accrue to practitioners and not customers.'' | ||
Those | [[Legaltechbros|Those selling e-discovery platforms]] doubtless are thrilled at this technical revolution. Perhaps, too, court lawyers — though there is an element of an arms race about it. But the question we pose is a different one: how has legaltech in general, and e-discovery in particular, contributed to ''legal outcomes for clients''? | ||
E-discovery exists to solve a problem that was only created by technology in the first place. As we have remarked [[Innovation paradox|elsewhere]], before the advent of [[email]] — before lawyers had screens on desktops and were dependent on paying someone to put their words onto paper, the very act of generating a document, let alone sending one, was orders of magnitude more difficult and expensive. This provided strong incentives not to create ''unnecessary'' documents and to make sure the documents one did create were ''short and to the point''. | |||
These incentives no longer remain. The volume of information that now passes is monstrous; its ''quality'' is dismal. To the extent it is the only means of handling this volume, this is not e-discovery ''solving'' a problem. This is technology ''creating'' one. | |||
We wonder, too, whether the advent of e-discovery has made litigation ''cheaper'', ''faster'' or ''more effective''. Litigation does not, generally, seem to be getting cheaper.<ref>As of the date of this article, there were 80,100 Google hits for [https://www.google.com/search?q=%22rising+costs+of+litigation%22 “rising costs of litigation”]. There were ''no'' results for [https://www.google.com/search?q=%22falling+costs+of+litigation%22 “falling costs of litigation”]. Now, we hope, there will be one.</ref> | We wonder, too, whether the advent of e-discovery has made litigation ''cheaper'', ''faster'' or ''more effective''. Litigation does not, generally, seem to be getting cheaper.<ref>As of the date of this article, there were 80,100 Google hits for [https://www.google.com/search?q=%22rising+costs+of+litigation%22 “rising costs of litigation”]. There were ''no'' results for [https://www.google.com/search?q=%22falling+costs+of+litigation%22 “falling costs of litigation”]. Now, we hope, there will be one.</ref> | ||
Have commercial disputes become intrinsically more complicated since the information revolution, or is | Have commercial disputes become intrinsically more complicated since the information revolution, or is their [[formal]] complication a function of how lazy technology has allowed us to become? There are ten times as many documents, but is there any more ''signal'', or is it just a lot more ''noise''? Is e-discovery really just an articulation of [[Parkinson’s law]] for the digital natives? | ||
A dispute has, from a plaintiff’s perspective,<ref>It may be different from a defendant’s perspective, but we doubt it: the univariate consideration is simply “should I immediately settle, or engage lawyers to commence the pantomime of driving down the settlement?”</ref> a reductively simple complexion: | |||
“I believe I am entitled to value X, | “I believe I am entitled to value X, but1 I have received value Y”.<ref>Thought leaders and amateur psychologists will cavil at this and tell us that, no, sometimes the aggrieved just want their day in court. Not, I fancy, when they realise how much they will pay for it.</ref> | ||
This is, in the vernacular, a [[univariate]] calculation. There is an amount to be claimed — ''X - Y'' — and a maximum amount one is prepared to pay to recover that amount — ''(X - Y)/n'' — where ''n'' will vary depending on the strength of customer’s original conviction, but logically must be greater than 1. | This is, in the vernacular, a [[univariate]] calculation. There is an amount to be claimed — ''X - Y'' — and a maximum amount one is prepared to pay to recover that amount — ''(X - Y)/n'' — where ''n'' will vary depending on the strength of customer’s original conviction, but logically must be greater than 1. | ||
For those engaged to help resolve the dispute, however, the problem is [[multivariate]]: how reasonable is your client’s assessment of its own chances; how solvent is the defendant; how likely is it to defend, how vigorously, and how skilfully, which forum is most convenient to resolve that dispute; how sympathetic is that forum likely to be — each of these factors one can assign a probabilistic assessment at best. They are [[known unknown]]s. The great skill of the advocate is to assess them: should the assessment come inside the customer’s calculation, there is a livelihood to be made. | |||
{{sa}} | {{sa}} | ||
*[[Innovation paradox]] | *[[Innovation paradox]] | ||