The threat to law firms

Lawyers should learn about legal technology because it is our best hope for retaining control of the law.

Law firms have been slow to adapt to the modern practice of law — a practice characterized by a rapidly growing and changing body of regulation; continuous innovation in business models and legal structures; increasing internationalization, jurisdictional conflict, and attempts at comprehensive private ordering; and the exponential growth of potential evidence in the form of email, documents, messages, and other data.

There are parts of law firms’ business that law firms are not especially good at right now. Finding evidence in ever-growing piles of data is one of them. This has created an opening for specialized services firms, not run like law firms or by lawyers, who are encroaching on traditional areas of legal practice. These firms have had success precisely because they are better in many cases than the lawyers they replace, in quality, in value, or in both.

But can law firms let go of their role in finding evidence? The ultimate responsibility for wrong advice or bad outcomes that results from incompetence in finding evidence rests with lawyers. It is we who ultimately know what to look for — the facts that are relevant to the legal strategies we are implementing. It is we who ultimately know what advice should follow from the facts we see, both tactically in the context of a particular dispute and strategically in the context of legal compliance and achieving organizational goals through law. Lawyers need to be able to dive into the evidence to apply the law correctly.

The model, already prevalent, in which the client hands its litigators a packet of evidence selected by the client itself or by some third-party service provider is deeply disturbing because it distances experts in the law from the facts that inform their legal judgment. In place of legal experts looking at the facts and making legal judgments about what to explore and where to probe further, there is some mediated form of communication of that expertise; the surgeon tells her nurses where to cut and what to look for instead of performing the operation herself.

This model has lawyers abdicating more and more of our role as gatekeepers to the law to outside non-lawyer, non-law-firm consulting or specialist investigative organizations or to house-counsel organizations that ultimately report to nonlawyers. The effect is to cabin what lawyers do into applying legal knowledge to an assembled body of fact, instead of lawyers’ traditional role of driving the assembly of the body of fact, of driving everything that goes into the application of their legal judgment. Our negligence in adapting to changes in the practice of law has created an opening for companies built around process and technology to fix what we’ve done badly in ways that appeal to clients because of their efficiency. The risk is that these companies will entirely eclipse the lawyer’s role in developing the facts.

Lawyers, aided by great tools, can put a stop to this. Disco’s competitors in the ediscovery space do not have a view about this, or their view favors enterprises and the new generation of services companies over law firms. At Disco, we do have a view, and our view favors law firms. We believe in the law and the primacy of lawyers and law firms in driving the application of the law. We understand the problem that the enterprise has had with law firms, the expense and inefficiency of outmoded approaches to evidence that haven’t scaled with modern data. But we do not believe it is too late for law firms to master the tools and processes that can handle modern data. This is not to say we don’t sell Disco as a tool for services companies that compete with law firms; we do. But we ultimately hope for a world where the tools and processes used at these companies come back into the law firm, or at least a world where lawyers are mediating and driving the relationship between clients and organizations, tools, and processes like these.

Lawyers must reclaim our professional primacy: we have to control the critical steps of the legal process from law creation to compliance to law application to advocacy to enforcement; the more these slip out of our hands, the less effective we can be in our role as clergy in the religion that is the law. The rule of law is the prize in the battle over the rule of lawyers.

I have always loved a song by Karl Llewellyn that appears in the middle of his book, The Common Law Tradition. One line goes like this:

Some say our law’s in a sorry plight

and folly her fruition;

The answer to them is to set it right

in the common law tradition!

Just call us Mr. Market, or why you can’t beat Disco on price

Some enterprise customers, the sorts of companies with dozens of TB loaded in ediscovery software, have been telling us that their legacy vendors, folks like Kroll, have started coming by and offering “a few TB free.” When asked why they’re suddenly feeling generous after years of, how shall we put this, extortionate pricing, these vendors say they are “just responding to the market.”

Well, call us Mr. Market.

3 TB free on 30 TB of data amounts to a 10% discount from legacy prices. Disco bids, by contrast, frequently come in at 50% or less relative to legacy prices. We can do it because of our fully automated processing and proprietary technology, built in-house. And with our national network of channel partners (all major US cities + London and Delhi), we can offer an end-to-end ediscovery solution including everything from forensic collections to trial graphics, with Disco and our managed infrastructure as the technology piece and local, trusted channel partners as the services piece. All this is with no up-front investment from customers for licenses, hardware infrastructure, installations, or staffing.

Lawyers don’t pick ediscovery software on price. That’s why Disco’s marketing centers on our 10x speed improvement over the competition (1/3 second search and 1/10 second document navigation, even on multi TB databases) and lawyer-focused design (things like Westlaw- and Lexis-style syntax for searches). But in case you do care about price, we’ve got that too: Disco will never be beat on price in an apples-to-apples comparison (processing, review, users, productions with a legacy vendor v. Disco all-in-one pricing). It’s not even close.

Price is simply not an issue with Disco — which means lawyers, like our users at more than 30 of the AmLaw 200 and 10 of the AmLaw 50, can finally use software they love.

 

Speed, speed, speed

The most important feature of ediscovery software is speed.

Why is speed so important?

Westlaw is fast. Google is fast. Spotlight, the search on a Mac, is fast. Lawyers can and should expect the same level of speed from their ediscovery software. If Google can search the entire Internet and Westlaw can search hundreds of years of primary law in an instant, then instantaneous searching of 500,000, 5,000,000, or even 50,000,000 documents in a typical commercial case should be possible too.

Speed is important for three reasons. The first reason, which is obvious, is that time costs money when lawyers and paralegals charge by the hour. (The same is true for review firms that charge their clients by the document; a slow system increases review firms’ costs for the same amount of revenue.) The second reason is that review is often a rush: lawyers need to get documents out the door or find evidence for a deposition or hearing in a hurry.

The third reason, though, is less appreciated and more important. Slow ediscovery software — software where you have to wait seconds or tens of seconds for searches to load and seconds or tens of seconds to navigate between documents or pages of results — makes document review awful. Slow software makes document review so awful, in fact, that lawyers stop doing it as soon as they are senior enough to get someone else to do it for them!

Slow software means the least experienced members of the team are the only ones doing the review. Fast software means that senior litigators — the lawyers who will try the case, or argue the dispositive motions — are willing to access the evidence directly, just as they are willing to pull critical cases from Westlaw. A major and little-understood benefit of speed is that it gets you better lawyers working directly with the evidence.

How fast is fast?

How should you judge whether ediscovery software is fast? First, you need to know what “fast” is: a good benchmark is 1/3 of a second for searches and 1/10 of a second for document navigation, including rendering complex documents like PowerPoint or Excel files so that they look in the ediscovery software just like they would look in PowerPoint or Excel.

Second, you need to test ediscovery software against a large database, preferably the complete Enron set. Too often you will see a demo from a vendor on 50 documents, or 500 documents, and get acceptable speeds, but when you use the software on a real-life database of hundreds of thousands or millions of documents, everything grinds to a halt. Demand to see the software in operation on the full Enron dataset of about 500,000 documents; that is a real speed test.

What makes ediscovery software fast?

Fast ediscovery software requires three things: (1) modern search and rendering technology; (2) doing as much as possible up front, rather than during the review; and (3) using the fastest storage hardware money can buy and scaling it appropriately as data grows.

Modern technology

Search is a solved problem. Companies like Apple, Amazon, IBM, and Twitter all use an open-source search technology called Lucene. Unfortunately, many ediscovery companies still use a legacy search technology called dtSearch. Simply switching from dtSearch to Lucene — or picking software that is built on top of Lucene — makes things faster.

Some people like dtSearch because they are familiar with its search syntax, that is, how you input searches. But syntax is not a good reason to prefer one search technology over another. This is because the search syntax is independent of the underlying search technology: software can take any search syntax and “parse,” or translate, it into the language of the underlying search technology.

Similarly, for rendering, a legacy approach is to use embedded viewers that require downloading additional software or having the viewer “read” the native document when the reviewer pulls it up to look at it. By standardizing documents, for example to PDF, and by rendering the PDFs in the web browser itself, you skip the embedded viewer step and get a substantial increase in speed.

Doing the work up front

The second big contributor to speed is doing all the things that take time up front. If there is processing to be done or conversions to be performed or, in general, anything that takes time, you want it to happen when the data is loaded into the ediscovery software, not when a reviewer is sitting in front of her computer running searches or reviewing documents.

For example, the following should happen at the ingestion or processing stage, rather than at the search and review stage: (1) organizing emails into threads and grouping attachments with their parent emails; (2) finding related documents or “near duplicates”; and (3) converting documents to PDF or TIFF for rendering in review (that is, no “on the fly” conversions). By doing these things up front, good ediscovery software avoids wasting the reviewer’s time.

Another big benefit of doing work like this up front is that it can easily be broken up across many different computers all working together. This is called parallelization. If one computer can do the job in a week, then five computers working together can do it much more quickly, say, in a day or two. Indeed, using parallelization, an arbitrary amount of data can be processed arbitrarily fast — and this processing results in faster searching and document navigation for reviewers during the search and review phase.

Fast hardware scaled appropriately

One of the most common causes of poor performance is ediscovery software installations where either commodity hardware was used initially or high-end hardware was used at first, but it was not scaled as data size increases. At Disco, we use the best enterprise-grade solid-state storage available in the market today, and we offer Disco on top of a managed-services infrastructure where our team handles all hardware acquisition, integration, and scaling. You shouldn’t have to worry about installations or hardware.

If speed is so important, why is so much ediscovery software so slow?

This is a great example of the disconnect between so many ediscovery vendors and the practicing litigators who are their ultimate customers. Most practicing litigators will not use the bevy of exotic features that ediscovery vendors work so hard on (the “web of email” or the “concept wheel”), but every single litigator will use the core search and review features. And litigators hate the software they use largely because these search and review features are so slow.

Lawyers who have grown up with fast Google, fast Westlaw, fast Spotlight, and fast everything are not going to tolerate the current speed deficiency for long. I predict that the coming year will see a shift in focus by the savviest ediscovery companies from superfluous features back to the core features; this will be the year of “shoring up the base” in the sense of making sure that the things lawyers do 90% of the time work as well as possible.

That’s what we’ve tried to do at Disco: see for yourself what speed looks like by running some searches and viewing some documents in the complete Enron database, available at http://demo.csdisco.com.