Four Keys to Litigation Technology Innovation in the Next Five Years

Electronic discovery is a complex business that requires continuous professional learning from litigation team members and ongoing innovation from technology solution providers. To help stimulate discussion and drive innovation, The Legal Innovation 2020 (LI 2020) Working Group was formed at the beginning of 2015 in order to help legal-industry leaders identify the keys to success over the next five years.

Below are some of the observations, concerns and solutions expressed at sessions held over the course of the past year. It's worth noting, these ideas are categorized by discussion and reflect the collective views, from senior leaders across corporate counsel, law firms and legal technology, as recorded during these sessions as follows:

• Early case assessment;
• Data security;
• Flexible workflow; and
• Machine intelligence.

Early Case Assessment

According to Gartner, by 2020, information will be used to reinvent, digitalize or eliminate 80% of business processes and products from a decade earlier. That trend line appears to be right on track in the legal industry, where evolving tools and technology in the area of early case assessment provide just one example of how information governance is being reshaped.

At the April 2015 meeting of LI 2020, thought leaders from both corporate legal departments and law firms exchanged ideas about the fallout they're observing due to evolving early case assessment technologies.

Work Shifting Away from Associates

Document review, which has historically been a time-intensive task assigned to teams of associates in law firms, is increasingly being handled by machine-learning software tools and other outsourced processes. This is true for both e-discovery in litigation and due diligence in transactions.

Greater Discipline in Data Management

With more corporations adopting the “you can't manage what you can't measure” mantra, attorneys in both corporate and private practice are being pushed to impose new disciplines to the way information is managed in their organizations. One example is the use of the Six Sigma methodology: Define-Measure-Analyze-Improve-Control (DMAIC), a data-driven improvement cycle used for creating stable business processes during early case assessment and throughout e-discovery.

Rise of Artificial Intelligence

Fueled by IBM's initiative to make its Watson machine-learning system available in the cloud, some legal technology observers foresee continued progress in the application of artificial intelligence to legal information governance and e-discovery. As the industry is introduced to better early case assessment diagnostics, the new insights will continue to drive better processes.

'Highest and Best' Use Of Law Firms

Corporate legal executives are learning that the best way for them to get optimal outcomes for less money is to “in-source” some early case assessment functions by partnering with appropriate legal technology vendors that can present them with better data, and do it faster and cheaper. Once the data is in hand, they bring in their law firms for counsel and to assist with laying out the smartest legal strategy, which in-house counsel agree is the highest and best use of a trusted outside law firm.

Data Security

The efficient management of legal data has never been easy to achieve, but the stakes are suddenly much higher for in-house counsel and their outside law firms. With an alarming number of large American companies and government agencies victimized by organized cybersecurity breaches in recent months, corporate legal executives, their colleagues in IT and their outside counsel are mobilizing to confront the threat.

At the January 2015 meeting of LI 2020, participants provided some examples of what they're seeking this year in order to help them do a better job in the areas of data security and information governance.

Standardization

The legal industry needs common language that supports collaboration between corporations, law firms and third-party legal technology vendors.

Best Practices

More case studies and specific “best practices” of how other companies have achieved successful process improvement in their information governance plans.

Security Staffing

An accurate and independent report on employee head count at corporations of various sizes with respect to data security and information governance teams.

Legal Clarity

As a global community, we need greater clarity on laws in various countries around the world governing how we must treat data involving both employees and customers.

Knowledge Management from Both Sides of the Table

Better insights into challenges faced by each player in the industry ' the corporate client, the outside law firm and the legal vendor ' so we can learn from each other and better work with each other.

Flexible Workflow

In the complex and costly world of e-discovery, the Insource vs. Outsource debate has been raging for the past decade. Does it make more sense for corporate clients to continue allowing their trusted outside counsel to manage the e-discovery workflow in litigation, bring that work back in-house for corporate litigation support professionals to manage, or perhaps insource the work and contract with third-party service providers to get the job done?

At one major American corporation, what appears to be emerging is a more flexible approach that seeks to improve litigation outcomes and reduce cost exposure by calling on all three modalities as circumstances warrant.

“My strategy is designed to help the company realize the greatest value from the highly skilled and valuable attorneys from various law firms around the world who represent us,” says Aaron Crews, Senior Associate General Counsel at Walmart, where he oversees the company's e-discovery processes and strategies.

“I believe the highest and best use of our outside counsel is to rely on them for their core skills, things like legal judgment, business counsel, risk assessment and litigation strategy. When it comes to collecting evidence into databases, filtering out tens of thousands of irrelevant documents in e-discovery, and narrowing the landscape of electronic evidence down to a smaller pool of data that truly needs to be reviewed by an attorney, I feel there are often more efficient ways to get that early case assessment work done.”

Crews is a member of the LI 2020 Working Group. Following the April 2015 LI 2020 program, he shared his thoughts on the keys to successfully insourcing certain pieces of the e-discovery workflow.

Start With the Right Questions

Crews explains that his team is now asking the same question of every piece of the e-discovery workflow in a given case: Is this function something that our outside counsel should be doing because they do it really well, or is this something they're doing just because it's part of the greater litigation process? “If the answer is the latter, then we apply a series of objective tests to determine whether it would be more advantageous to the company if that function were insourced and, if so, whether it would make more sense to handle the work with full-time employees at Walmart or by partnering with a third-party litigation support services provider,” he explains.

Stay Flexible

Crews' team advocates a multi-pronged approach that uses in-house resources for certain early case assessment work, hands-off complex and time-intensive pieces to an appropriate service provider (e.g., forensics investigations, early data assessment, e-discovery processing, etc.) and then turns to litigators from a trusted outside law firm for more complicated elements of the workflow. “We always want to remain flexible enough to make sure we're applying the right model to the right need,” Crews says. “You can't get stuck with a single prism through which you view all insource/outsource decisions in e-discovery.”

Internal Buy-In

“Before making any changes to the way the company has historically managed litigation, it's important to identify potential sources of resistance both inside and outside of the organization,” Crews says. “Once that is mapped out, you can concentrate on securing the participation of those individuals in the planning of your new strategy. You'll need that buy-in from key people in order for the company to remain committed to the idea of insourcing certain functions that have been historically handled by outside counsel.”

Know Thy Costs

It can often be very difficult to wade through piles of invoices and trace expenditures throughout a global corporate legal department ' but it's essential if you want to succeed. “Not only do you need to know what those costs are in order to make the best possible decisions on insourcing or outsourcing work, but you're also going to need that data in order to measure how effective your new approach has been in bringing down costs to the company,” he says.

Incremental Moves

“I have a simple motto around here: Think Big, Start Small, and Move Fast,” explains Crews. “The idea is that we want to prioritize our tactical initiatives and then just pursue a few chunks at a time. This allows us to make progress, realize some results, and keep the momentum going as we re-think how we manage e-discovery and litigation management.”

Looking to the Future: Machine Intelligence

Looking ahead to 2020, there is one promising body of technology innovation that has the potential to have a major impact on e-discovery processes and workflows.

Lawyers and legal technology professionals are struggling to grasp the vast potential of “machine intelligence” to reinvent the way we litigate in the U.S. A 2011 article in the New York Times reported on the broad sense that we were on the cusp of a game change with machine intelligence in e-discovery (see, “Armies of Expensive Lawyers, Replaced by Cheaper Software“), but four years later there are still lots of questions about precisely how and when this revolution may take place.

As explained in a report earlier this year from Blue Hill Research: “Machine learning refers to the capacity of software to automatically adjust its performance and operations based on the consideration of past results, pattern recognition, and user feedback to predefined rules and heuristics. As such, applications of machine learning involve a legal intelligence engine that automatically improves and recalibrates with use.”

The most common initial applications of machine intelligence appear to be predictive coding and technology-assisted review in e-discovery. However, a big question is how litigation teams can get started down a path that might lead to the Promised Land.

In the May 2015 meeting of LI 2020, thought leaders from both corporate legal departments and law firms discussed some incremental first steps that law firms and their clients should consider as they chart a course on the road to machine intelligence.

Change Management

Machine intelligence is innovative by design so it's likely to be quite disruptive to the organization, requiring very thoughtful management of change to staffing, talent needs, among similar requirements.

Metrics and Measurement

It's important to build an entire culture from day one that is committed to a clear sense of using consistent metrics to measure progress toward goals (e.g., speed, accuracy, costs, etc.).

Better Use and Understanding Of Analytics

Initiate a conversation now with your key stakeholders (e.g., leader- ship, law firm partners, clients, IT staff, etc.) to put in place the best analytics possible.

Test Cases and Use Scenarios

Define a clear use scenario (i.e., a simple narrative for a typical use case of the technology) to help you explore the set of tasks and interactions required for your process design.

Client Demand

Try to gauge where your clients are most focused (e.g., cost? accuracy? speed?) and assess their expectations from the use of such cutting-edge technology for performing highly technical litigation-related tasks.

Conclusion

The e-discovery industry is right now at the exciting intersection of people, process and technology. The way we innovate and continue to improve in the next five years will have a substantial impact on the way litigation is managed in the U.S. legal system.

Steven Ashbacher is vice president of product management for litigations solutions, a part of the LexisNexis' software and technology division based in Raleigh, NC. LI 2020, which is managed by The Cowen Group and is underwritten by LexisNexis, is an invitation-only forum consisting of thought leaders in the legal industry who gather for monthly virtual meetings to be engaged and educated on evolving trends that impact legal business models.

Electronic discovery is a complex business that requires continuous professional learning from litigation team members and ongoing innovation from technology solution providers. To help stimulate discussion and drive innovation, The Legal Innovation 2020 (LI 2020) Working Group was formed at the beginning of 2015 in order to help legal-industry leaders identify the keys to success over the next five years.

Below are some of the observations, concerns and solutions expressed at sessions held over the course of the past year. It's worth noting, these ideas are categorized by discussion and reflect the collective views, from senior leaders across corporate counsel, law firms and legal technology, as recorded during these sessions as follows:

• Early case assessment;
• Data security;
• Flexible workflow; and
• Machine intelligence.

Early Case Assessment

According to Gartner, by 2020, information will be used to reinvent, digitalize or eliminate 80% of business processes and products from a decade earlier. That trend line appears to be right on track in the legal industry, where evolving tools and technology in the area of early case assessment provide just one example of how information governance is being reshaped.

At the April 2015 meeting of LI 2020, thought leaders from both corporate legal departments and law firms exchanged ideas about the fallout they're observing due to evolving early case assessment technologies.

Work Shifting Away from Associates

Document review, which has historically been a time-intensive task assigned to teams of associates in law firms, is increasingly being handled by machine-learning software tools and other outsourced processes. This is true for both e-discovery in litigation and due diligence in transactions.

Greater Discipline in Data Management

With more corporations adopting the “you can't manage what you can't measure” mantra, attorneys in both corporate and private practice are being pushed to impose new disciplines to the way information is managed in their organizations. One example is the use of the Six Sigma methodology: Define-Measure-Analyze-Improve-Control (DMAIC), a data-driven improvement cycle used for creating stable business processes during early case assessment and throughout e-discovery.

Rise of Artificial Intelligence

Fueled by IBM's initiative to make its Watson machine-learning system available in the cloud, some legal technology observers foresee continued progress in the application of artificial intelligence to legal information governance and e-discovery. As the industry is introduced to better early case assessment diagnostics, the new insights will continue to drive better processes.

'Highest and Best' Use Of Law Firms

Corporate legal executives are learning that the best way for them to get optimal outcomes for less money is to “in-source” some early case assessment functions by partnering with appropriate legal technology vendors that can present them with better data, and do it faster and cheaper. Once the data is in hand, they bring in their law firms for counsel and to assist with laying out the smartest legal strategy, which in-house counsel agree is the highest and best use of a trusted outside law firm.

Data Security

The efficient management of legal data has never been easy to achieve, but the stakes are suddenly much higher for in-house counsel and their outside law firms. With an alarming number of large American companies and government agencies victimized by organized cybersecurity breaches in recent months, corporate legal executives, their colleagues in IT and their outside counsel are mobilizing to confront the threat.

At the January 2015 meeting of LI 2020, participants provided some examples of what they're seeking this year in order to help them do a better job in the areas of data security and information governance.

Standardization

The legal industry needs common language that supports collaboration between corporations, law firms and third-party legal technology vendors.

Best Practices

More case studies and specific “best practices” of how other companies have achieved successful process improvement in their information governance plans.

Security Staffing

An accurate and independent report on employee head count at corporations of various sizes with respect to data security and information governance teams.

Legal Clarity

As a global community, we need greater clarity on laws in various countries around the world governing how we must treat data involving both employees and customers.

Knowledge Management from Both Sides of the Table

Better insights into challenges faced by each player in the industry ' the corporate client, the outside law firm and the legal vendor ' so we can learn from each other and better work with each other.

Flexible Workflow

In the complex and costly world of e-discovery, the Insource vs. Outsource debate has been raging for the past decade. Does it make more sense for corporate clients to continue allowing their trusted outside counsel to manage the e-discovery workflow in litigation, bring that work back in-house for corporate litigation support professionals to manage, or perhaps insource the work and contract with third-party service providers to get the job done?

At one major American corporation, what appears to be emerging is a more flexible approach that seeks to improve litigation outcomes and reduce cost exposure by calling on all three modalities as circumstances warrant.

“My strategy is designed to help the company realize the greatest value from the highly skilled and valuable attorneys from various law firms around the world who represent us,” says Aaron Crews, Senior Associate General Counsel at Walmart, where he oversees the company's e-discovery processes and strategies.

“I believe the highest and best use of our outside counsel is to rely on them for their core skills, things like legal judgment, business counsel, risk assessment and litigation strategy. When it comes to collecting evidence into databases, filtering out tens of thousands of irrelevant documents in e-discovery, and narrowing the landscape of electronic evidence down to a smaller pool of data that truly needs to be reviewed by an attorney, I feel there are often more efficient ways to get that early case assessment work done.”

Crews is a member of the LI 2020 Working Group. Following the April 2015 LI 2020 program, he shared his thoughts on the keys to successfully insourcing certain pieces of the e-discovery workflow.

Start With the Right Questions

Crews explains that his team is now asking the same question of every piece of the e-discovery workflow in a given case: Is this function something that our outside counsel should be doing because they do it really well, or is this something they're doing just because it's part of the greater litigation process? “If the answer is the latter, then we apply a series of objective tests to determine whether it would be more advantageous to the company if that function were insourced and, if so, whether it would make more sense to handle the work with full-time employees at Walmart or by partnering with a third-party litigation support services provider,” he explains.

Stay Flexible

Crews' team advocates a multi-pronged approach that uses in-house resources for certain early case assessment work, hands-off complex and time-intensive pieces to an appropriate service provider (e.g., forensics investigations, early data assessment, e-discovery processing, etc.) and then turns to litigators from a trusted outside law firm for more complicated elements of the workflow. “We always want to remain flexible enough to make sure we're applying the right model to the right need,” Crews says. “You can't get stuck with a single prism through which you view all insource/outsource decisions in e-discovery.”

Internal Buy-In

“Before making any changes to the way the company has historically managed litigation, it's important to identify potential sources of resistance both inside and outside of the organization,” Crews says. “Once that is mapped out, you can concentrate on securing the participation of those individuals in the planning of your new strategy. You'll need that buy-in from key people in order for the company to remain committed to the idea of insourcing certain functions that have been historically handled by outside counsel.”

Know Thy Costs

It can often be very difficult to wade through piles of invoices and trace expenditures throughout a global corporate legal department ' but it's essential if you want to succeed. “Not only do you need to know what those costs are in order to make the best possible decisions on insourcing or outsourcing work, but you're also going to need that data in order to measure how effective your new approach has been in bringing down costs to the company,” he says.

Incremental Moves

“I have a simple motto around here: Think Big, Start Small, and Move Fast,” explains Crews. “The idea is that we want to prioritize our tactical initiatives and then just pursue a few chunks at a time. This allows us to make progress, realize some results, and keep the momentum going as we re-think how we manage e-discovery and litigation management.”

Looking to the Future: Machine Intelligence

Looking ahead to 2020, there is one promising body of technology innovation that has the potential to have a major impact on e-discovery processes and workflows.

Lawyers and legal technology professionals are struggling to grasp the vast potential of “machine intelligence” to reinvent the way we litigate in the U.S. A 2011 article in the New York Times reported on the broad sense that we were on the cusp of a game change with machine intelligence in e-discovery (see, “Armies of Expensive Lawyers, Replaced by Cheaper Software“), but four years later there are still lots of questions about precisely how and when this revolution may take place.

As explained in a report earlier this year from Blue Hill Research: “Machine learning refers to the capacity of software to automatically adjust its performance and operations based on the consideration of past results, pattern recognition, and user feedback to predefined rules and heuristics. As such, applications of machine learning involve a legal intelligence engine that automatically improves and recalibrates with use.”

The most common initial applications of machine intelligence appear to be predictive coding and technology-assisted review in e-discovery. However, a big question is how litigation teams can get started down a path that might lead to the Promised Land.

In the May 2015 meeting of LI 2020, thought leaders from both corporate legal departments and law firms discussed some incremental first steps that law firms and their clients should consider as they chart a course on the road to machine intelligence.

Change Management

Machine intelligence is innovative by design so it's likely to be quite disruptive to the organization, requiring very thoughtful management of change to staffing, talent needs, among similar requirements.

Metrics and Measurement

It's important to build an entire culture from day one that is committed to a clear sense of using consistent metrics to measure progress toward goals (e.g., speed, accuracy, costs, etc.).

Better Use and Understanding Of Analytics

Initiate a conversation now with your key stakeholders (e.g., leader- ship, law firm partners, clients, IT staff, etc.) to put in place the best analytics possible.

Test Cases and Use Scenarios

Define a clear use scenario (i.e., a simple narrative for a typical use case of the technology) to help you explore the set of tasks and interactions required for your process design.

Client Demand

Try to gauge where your clients are most focused (e.g., cost? accuracy? speed?) and assess their expectations from the use of such cutting-edge technology for performing highly technical litigation-related tasks.

Conclusion

The e-discovery industry is right now at the exciting intersection of people, process and technology. The way we innovate and continue to improve in the next five years will have a substantial impact on the way litigation is managed in the U.S. legal system.

Steven Ashbacher is vice president of product management for litigations solutions, a part of the LexisNexis' software and technology division based in Raleigh, NC. LI 2020, which is managed by The Cowen Group and is underwritten by LexisNexis, is an invitation-only forum consisting of thought leaders in the legal industry who gather for monthly virtual meetings to be engaged and educated on evolving trends that impact legal business models.