Leveraging technology and external resources to level the playing field

Today's companies create and share an ever-increasing amount of information, in a wide range of different formats and languages.

The challenges and costs of retrieving, reviewing and producing this electronic data for litigation or investigation purposes are further compounded by the relative ease with which electronic documents and communication can be stored compared with the paper-based archiving systems of the past.

Thankfully, new technologies have been developed to mitigate the impact of this proliferation of information. Document review makes up the lion's share of the cost of litigation or investigation, so technical and outsourcing solutions have evolved to reduce both the numbers of documents to be reviewed and the cost of doing so.

New problems

The typical approach to reducing document volume prior to legal review is to perform keyword and date range searches over the client's data to try and identify those documents that are most likely to be relevant to the matter at hand. Those documents that are responsive to the search criteria are loaded to a disclosure review system, in which the legal team works to identify relevant documents and organise the disclosure.

Major law firms have often brought the technology used to support electronic disclosure projects in-house. They have the funds to invest in the relevant hardware and software, as well as the administrative and IT support necessary to make this possible. They may also set up their own document review centres in countries or regions where human resources are available at a fraction of the cost of London or New York.

But what about the smaller firms whose limited capital resources make these kinds of investment infeasible? Are they destined to only deal with the smaller matters? Or can having a good understanding of technology and outsourcing options for conducting large-scale cases put high-profile matters within the reach of smaller law firms, firms that would not traditionally have had the resources and technology to undertake large-scale document review exercises?

One of the more controversial technological developments in recent years has been the introduction of computer-assisted review, often called 'predictive coding'. This combination of conceptual analysis technology, sampling-driven workflow and machine learning has the potential to remove the need for a lawyer to make the relevance decision on every document, generating huge savings.

Predictive coding uses machine learning technology to absorb a lawyer's relevance and privilege decisions on a sample set of documents, analysing all documents within this set to understand which concepts are common to the, for example relevance and privilege categories. Once the system has 'learned' enough about the concepts inherent in the sample set, it can be directed to analyse the remaining documents to identify any that closely match the concept(s) present in the sample set and apply the corresponding 'tags' or 'coding' to these documents.

The size, quality and composition of the sample set is important, as without sufficient breadth of sampling, not all relevant concepts will be identified and accorded appropriate relative weighting. The lawyers then sample the documents 'coded' by the system, providing feedback that further refines the decisions made by the system, until the system's decisions and the lawyers' decisions are closely aligned.

Care needs to be taken when considering the use of this type of technology, as it is not ideal for every case, but it has the potential to deliver massive savings and should therefore at least be considered.

Avoiding headaches

If computer-assisted review looks like an inappropriate approach, another option is to instruct a legal process outsourcing (LPO) provider for the basic document review tasks, such as the initial review for relevance.

In this scenario, the law firm creates a review protocol containing instructions for the LPO review team on how documents should be coded and delivers training to the LPO review team.
The law firm and LPO team often work together for the first few days of a large review to identify any ambiguities and answer any questions the reviewers may have. The law firm then reviews the documents deemed relevant by the LPO review team, plus an agreed-upon percentage of the material deemed non-relevant as a quality control measure.

This allows the law firm to focus on the delivery of legal advice rather than the headaches of employing large teams of review staff and providing space and workstations.

A new way to differentiate

The advent of new technologies and outsourcing options could allow law firms of all sizes to compete for large litigation and investigation projects. A firm's pitch to win this kind of work in future will have to include its experience in selecting the right technical and commercial approach and managing the non-legal processes, as well as the legal expertise the firm brings to the matter.

Clients can find it difficult to differentiate one law firm's offering from another. The ability to leverage technology and strategic outsourcing to deliver projects faster and at a lower cost could be enough to make your firm stand out from the rest.