As I sat down to pen my thoughts on the uptake and application of legal technology in the context of litigation and investigations, it struck me that many of the opinions I held (rightly or wrongly) nine months ago have shifted dramatically in light of what we have experienced this extraordinary year.
The events of 2020 have probably enforced the biggest change in working practices since the industrial revolution, and it has happened at break-neck speed. The challenge was not only a logistical one, it also required an unprecedented cultural shift, a gargantuan human effort to get employees working remotely, and an enormous amount of trust that people could still get the job done effectively, efficiently, and securely from home. It has shown us what is truly possible and soundly reinforced the fact that necessity is the mother of all innovation!
Anyone who has worked in eDiscovery knows that anything is possible and miracles can happen. In my day, there was nothing that couldn’t be achieved by a couple of late nights and a well written .bat file! I have often thought over the last few months that if any group of professionals was well placed to transition to remote working it is the eDiscovery community. For so many years, we have strived to get lawyers to embrace technology and move away from a reliance on the “PRINT” button. The tools of the trade were web based eDiscovery platforms, SFTP, setting up remote data collections when time, cost or geography meant that in-person collection wasn’t viable, and creating electronic trial bundles. Now, the rest of the legal profession is catching up…so let’s take stock of where we are now.
Using technology, we have proven that the new way can work and in a way that we didn’t think was achievable. On the cusp of 2021, I believe that a lot of the “new way” should stay.
A significant change in 2020 that I believe will have long-term impact is travel and where work needs to be done. For example, there really is no need to fly expensive forensic experts around the world to collect data. In most cases, data collection can be undertaken, or at least supervised, remotely and many companies have already been providing remote collection services for many years.
In court, preliminary matters, interlocutory hearings and trials without evidence may well be best suited to being held virtually and courts may be expected to adopt remote hearings where it is possible. There is a compelling case for this, given the time and cost involved with having all the necessary parties attend in person. However, trials involving witness evidence present a whole new set of challenges. Experts talk about the importance of being able to observe the demeanour of a witness in order to properly assess their credibility and the truthfulness of their evidence. See the whites of their eyes, the sweat on their brow so to speak. Others argue that without the formality and pressure of being in a courtroom, a witness may present their evidence in a more natural manner. One thing is resoundingly clear – the legal industry as a whole is more open minded to different ways of delivering justice (as long as the technology works)!
When it comes to document review, is it necessary for review teams to be located on site in secure review centres for every type of project or should clients have a choice of engaging remote reviewers for efficiency, cost, or skills advantages? At Integreon, we have successfully completed hundreds of document review projects for clients globally since moving to remote review in March. But we do have to be pragmatic. Remote review will not suit every client or every matter and it won’t sit comfortably within every review provider’s business model. Also, being completely frank, there is often no substitute on a complex review for being able to confer with your fellow reviewers who are sitting in the room with you.
So given the increased acceptance of remote working and reliance on technology, how will the next 12 months play out? We will no doubt see an upturn in disputes and investigations, as history has shown that this is generally the trend following periods of economic turmoil and uncertainty. My colleague, Vince Neicho, and I recently wrote a piece about this. In addition, since the last recession, we have seen a huge increase in cyber-attacks and data breaches which present further disruption and cost to beleaguered organisations. On a positive note, as well as major advances in technology solutions, the Alternative Legal Service Provider model has also matured and been adopted by many more law-firms and corporations. This has resulted in the cost and logistical challenges associated with disputes reducing.
Clients simply won’t accept inefficiency due to lack of awareness and reluctance to engage with technology that is specifically designed to help reduce the time and cost associated with managing and reviewing electronic evidence. The lawyer who is proficient in using technology and who understand its benefits, as well as its limitations, should no longer be a novelty.
It may be some time before we head back into our offices, and it remains to be seen how they will look and feel. For those starting out in their careers or new to a company, they need training, mentors, the opportunity to bond with their tribe over coffee, lunch, or a drink after work. Beginning a new job is daunting at the best of times, even with a solid induction and formal training programme and for those who have come into the industry over the last 12 months, a lot of this will have been done remotely.
Personally, I look forward to the day that we can all interact in person again. How often have we lamented that our children spend too long in front of screens – phones, i-pads, PlayStation and the rest, and yet here we are, working on screen, communicating exclusively via technology, with little face to face interaction? I hope that 2021 will bring us all together again as an industry so that we can meet in person, tell our stories, and give ourselves a little pat on the back for getting through it all.