September 4, 2013
In this installment of our series on how technology can change law firm economics for the better, I want to address the biggest hurdle for in-house adoption of a predictive coding – teaching partners and senior associates to use the software.
The effectiveness of predictive coding software hinges on the initial training of the software to be performed by either a senior associate or a partner that is intimately aware of the underlying facts and litigation strategy. While the notion of learning how to train such a system may send partners fleeing in the other direction their concerns are misplaced as some predictive coding software is intuitive to learn.
The reason a partner or senior associate should be responsible for training the software is because they are best situated with the facts and legal strategy, components critical to ensure the training is being performed in a defensible and reasonable fashion. Counsel be warned that if you permit a junior associate to manage and run the predictive coding software you risk losing the case before you start. Why? Unlike manual discovery, every tag is amplified in training so counsel must be savvy about the issues and legal strategy in order to properly train the predictive coding platform. Limited experience and legal acumen by the trainer translates into software that is likely to return non-responsive documents as responsive, which can result in substantial costs, sanctions, or defeat.
Once in the courtroom, counsel will also be responsible for educating the bench on the new technology. In larger cases this may not be necessary as a neutral, expert, or special master will contribute their knowledge to the discovery process. These technical experts, with backgrounds in IT, mathematics, or statistics bring a skill set to the predictive coding process that benefits the parties, their attorneys, and the court.
While such an expert may be invaluable during the trial, the need for such expertise on a day-to-day basis is not necessary, which again highlights the potential of making e-discovery a profit generator and not an additional cost for the client. My experience has suggested that a law firm or in-house team that has a strong litigation support staff can utilize and deploy predictive coding software with skill and comfort. Success often hinges on whether or not the firm changes their own e-discovery process and culture so that partner and/or senior associate are at the front lines working with litigation support.