There is a school of thought that says predictive coding is set to be the most disruptive technology to affect lawyers.
The technology comes from the United States where the twin pressures of ever-increasing volumes of electronically stored information (ESI) coupled with a constrained financial environment, mean in-house counsel are demanding law firms do more for far less.
Though its genesis might be American, the changing way of working will have just as much impact in the UK.
But what is predictive coding? There are a number of slightly different technologies out there, but they can be grouped under the single heading of computer assisted review (CAR).
When faced with a mass of ESI, a well-qualified person or small number of individuals are used to “train” computer software in identifying which documents are relevant overall, important to specific topics and, in some cases, legally privileged.
The “training” involves reviewing a batch of ESI, normally around 1,000 to 1,500 documents, which has been selected at random from the corpus of the material. The computer processes the results and provides another batch of documents, where it starts to suggest its values for relevance, topic association and so on. The reviewer codes this batch and the computer refines its algorithms and repeats the process.
All studies to date show that computers are far more consistent and accurate than humans in conducting review work
Normally after five or so batches, the machine is ready to work on its own and then codes the remainder of the collected material. What happens next depends upon the strategies adopted by the drivers of the CAR.
One possible approach is to select a level below which the documents might be tentatively relevant, but proportionality would mean they could be discounted, say anything below 50 per cent.
At the top end of the coding spectrum, you might decide that any document that is marked between 100 and 80 per cent is relevant and, at this stage, does not need human eyes to confirm what the computer has decided.
Where you will spend time and money is reviewing the documents that the CAR process says are between 50 and 80 per cent as these are the more marginal calls that need verification.
Using CAR technology has a number of benefits. Foremost is the significant reduction in time and cost of disclosure review work, with the experience of senior people being used up front where it makes most difference. Some case studies show savings of more than 60 per cent in legal fees and review time.
Next, the process lends itself to a verifiable procedure; you can share samples of the documents in the different bands of relevance with the other side, thus proving the process works, without having to delve into the guts of the CAR logic engine.
All studies to date show that computers are far more consistent and accurate than humans in conducting review work; the silicon chip making no distinction between Monday morning and late on a Friday afternoon.
Finally, as this is information technology, it is improving at a staggering rate, meaning that next year it will be twice as capable, four times so the year after that and so on. It’s a technology that is here to stay.
The people most at risk from this disruption are those who use large teams to conduct review work, so legal processing organisations should be considering their future very carefully.
However, with the Jackson litigation costs reforms, introduced in April placing increasing pressure and scrutiny on budgets and eDisclosure charges, the CAR tools also pose a significant challenge to more traditional law firms.
