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< | Rethinking the Future of Law | >
> | RethinkingtheFutureOfLaw? | | | -- By AlejandroMercado - 14 Oct 2011 | |
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< | This is
a wiki: Why are you putting text URLs in footnotes?? Link to
things, please, in the usual web way. | | | I. The End Of The World As We Know It | |
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> | | | | | |
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< | The world has changed. The legal cosmos as we know it, no longer exists. The signs are there; yet, many are still blinded by the vanishing glare of a perceived functional and “glorious” model. That very thing that shifted the gears of the global economy into hyperdrive a decade ago, has also struck a deathblow to our beloved profession. The system of law has been transformed by technology. And many are so inert, so hopelessly dependent on the system as previously known to them that they can’t bear to devise it any other way. They can’t bear the thought of being unplugged from it, to be rid of the world pulled over their eyes that blinds them from the truth. | >
> | The profession of law is being utterly changed by recent concerns regarding the identification, preservation and collection of electronically stored information within the context of litigation. This reality is supported by the fact that, ever since the recent amendments to the Federal Rules of Civil Procedure, the number of court issued decisions regarding E-discovery disputes has been steadily on the rise. | | | | |
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< | A short essay cannot
have a long introduction. You've spent a paragraph and you haven't
told us what this is about yet. You need to put an idea up front in
a way that pulls the reader in, and puts her or him securely on the
rails that lead where you are going. | >
> | Whether a fad or a permanent reality, these concerns are being fuelled in great part by lawyers’ incompetence when it comes to computers and their lack of cooperation in the discovery process. By addressing these two elements we might help to address this area of law in a simpler context.
| | | A. "Weird Science" | |
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< | First off, the discovery process has been utterly transposed. Computer technology has advanced us to an era where evidence is no longer paper based, but electronically stored. Every personal technology that surrounds us has a potential evidentiary value – e.g. e-mails, text messages, browser histories, search engine queries, social network accounts, GPS software, etc. Even our automobile’s event data recorders (“EDR”) or so-called “black boxes” promise to be crucial data for the courtroom regarding accidents. Thus, for the sake of clients, lawyers are now required to think in terms of technology. | | | | |
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< | Why that's a
"transposition" is hard to see from your text. It just means that
instead of a world full of printed documents, typed documents, phone
message slips, answering machine tapes, floppy disks and video
cassettes, we have bitstreams. If that's a "transposition," you need
to explain what transposition is and why this is
one.
Be that as it may, us juris consultus
It's not clear why
you'd want to use obscure Latin here instead of the simple English
"lawyers." But if you're going to do it, getting the grammar of both
languages wrong (it's "we lawyers" or "we jurisconsults," not "us,"
while "juris consultus" is singular rather than plural) doesn't
help.
lack the know-how, let alone the experience, to confront these challenges. Because of the distinctive characteristics of electronically stored information (“ESI”) and old, bad, lawyerly habits at the discovery level, parties are being shunned from the court system and from having access to justice. For example, ESI is voluminous. Every little piece of electronic storage we possess holds the equivalent of thousands, hundreds of thousands, if not millions of document pages.
"It is estimated" means
"Here's a number for whose accuracy I take no responsibility." The
number is actually nonsense. Whether a "page" means 250 words of
ASCII text, 500 words of ASCII text, one fifth of a short Microbrain
Worz document, one fortieth of a long Microbrain Worz document, a
TIFF format file of a scanned page, a badly compressed PDF file of a
scanned page, a well-compressed PDF file of a scanned page, or a DJVU
file of the same scanned page would change the estimate based on
bytes per page to anywhere from half a million pages down to a
thousand pages per gigabyte. Given that the variability of "page" is
more than two orders of magnitude, giving a number makes no sense.
Your argument, moreover, is phrased misleadingly, because the nominal
storage capacity of objects is irrelevant. Most people's personal
filesystems average 90% empty, and after you finish excluding
unauthorized copies of multimedia culture and peoples' porn
collections, almost no filesystem held in a personal computer
contains anything at all, to a first statistical approximation.
And the problem lies not in their magnitude, but in sorting through them to find the few, which are relevant to a legal claim.
But this argument is
patently incorrect in the inference it urges the reader to draw.
Filtering analog documents printed on paper is difficult: a human
being has to read each one. Filtering digital information is easy:
computers can do it. Almost all that 81% spam is thrown away before
it is delivered to any human being, for example, which is why email
is still a very effective medium of communication even with an
apparently unpromising signal to noise ratio. Similarly, the effort
to use advertising on the web, which has also massively increased the
noise to signal ratio of web traffic, makes no difference to me once
I install and ad blocking proxy or browser extension, which silently
removes the ads from everything before I see them. Your text tells
the reader that the problem of filtering grows at least linearly with
data volume, but in fact the discontinuous transition from analog to
digital representation of the data reduces filtering cost by more
orders of magnitude than the volume has grown. Once everything is
digital, filtering cost may again grow linearly with volume, but the
marginal cost of bit filtering is almost exactly equal to the
marginal cost of bit-moving; the difference is so close to zero that
you could spend the rest of the lifetime of the universe trying to
make it add up to something you could count.
At the same time, lawyers are being swamped with hundreds of expensive proprietary software from e-discovery vendors purporting to have the holy grail of discovery; purporting to hold the true secret for finding the needle in the haystack, the “smoking gun” of a claim. Whether it is through Boolean search methodologies or concept searching, all of these technologies promise results in exchange for “reasonable”, yet “justified” fees for using their exclusive technology. This, of course, translates into exorbitant costs to clients that arise from the handling of volumes of electronic data sought throughout our revered process of “liberal discovery”.
This last sentence
implies that the cost of the software rises with the number of bits
it processes. I don't think that's really true, even if you are
using unfree software to do your filtering.
Lawyers are also being swamped with hundreds of utterly inexpensive
zero-cost high-sophistication tools made of free software for doing
all the same things. I've seen very expensive email-searching systems
that are less good than
mairix, let alone
notmuch. I've heard lawyers bitching
about their difficulty in searching email archives of a few tens of
thousands of messages produced in discovery, but I personally carry
more than 250,000 of my own messages around with me in my laptop,
reindexing the larger archive from which it is drawn—containing
more than 1.85 million messages sent me over the years, which is a lot
more email than you're going to get in a lifetime—twice a day on
two different backup servers, and searching that quarter-million
message archive dozens of times a day at absolutely no cost. I built
a system last year that could discriminate a subjectively-judged
property of patent text searching tens of thousands of patents a
minute based on the PDFs of all issued US patents available from
Google, using commodity hardware and free software. Making and
running the system cost SFLC nothing except a few days' time of one
technician and one lawyer.
You are correct, of course, that technological incompetence costs
lawyers and clients billions of dollars a year that are paid to slime
by morons at the expense of clients who are fools. But the problem
lies not in the difficulties of dealing with electronic data in
discovery.
B. Google(a)Scholar
Meanwhile, the brick and mortar of law is starting to wheeze from an ailment in the billable hour. That is, large law firms are starting to suffer from client’s adverse reaction to being overcharged by hourly fees and demanding alternative fee arrangements. In part, this has been induced by the rising costs of discovering ESI and emerging software to supplant routine tasks such as “manual review”. But also by the spurt in free legal resources that better allow for small firms to compete to serve large corporate clients – e.g. Google Scholar, FastCase? , FindLaw? . Accordingly, money conscious clients are abandoning renowned, flashy firms, and switching to the ever-characterized unconventional law firms.
Take for example Clearspire, a small shop of 20 lawyers working from their homes on a sophisticated technology platform that mimics a virtual office. In taking advantage of said technology, clients use its platform to both communicate and conduct exchanges as their requested service is being performed. Also important, Clearspire provides its clients with project-based rates that help them avoid being overcharged.
Axiom employs too an alternative model that has been thus far successful. It engages independent or teams of lawyers per week or month, keeping overhead costs down by dumping the glittering headquarters and focusing on service. With 11 years in the business, Axiom enjoys the likes of companies such as Google, Amazon and IBM as clients.
But those companies also
deal with the most conservatively-organized of the hour-sellers, to
whom they pay orders of magnitude more than they pay Axiom. Citing
peoples' self-advertisements on their corporate web fronts for the
truth of the facts contained is ludicrous, and I can't imagine why
you're doing it.
Thus, in taking advantage of the discredited “billable hour” by adopting its abandonment as their ethos and pooling the talent of experienced attorneys with backgrounds from prestigious law firms, these “non-conventional” law firms forebode part of what the practice of law might look like in the not so distant future.
It's not clear to me as
a reader, at this point, what the point of the essay is. You've
discussed two vaguely-connected phenomena, but you've shown no
overarching connection and stated no larger theme. At this point,
unless I am professionally required to keeping reading, I as a reader
am gone, and you've lost your chance.
Notes
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> |
Everywhere we read, the immense amount of literature surrounding this area portrays a legal world swamped in exponentially increasing/unmanageable volumes of electronic data. Discovery disputes are addressing controversies as variable as “when does the duty to preserve electronic data arise”, “the scope and format of production”, and “when does spoliation take place”. And court opinions both in federal and state court are being frequently issued, to the point that by last year every federal circuit had issued an opinion on E-discovery. | | | | |
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< | II. There's No Place Like Home...
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> | States are also adopting their own rules on the subject and court systems, like New York, held efforts to assess the impact that E-discovery has had on the legal practice with the intent to improve the quality of said discovery practices within the state. The federal system has also designed a guide to assists judges in managing E-discovery issues. Even the Seventh Circuit is working on a project dubbed the “Electronic Discovery Pilot Program” with the purpose of improving fairness in the litigation procedure by reducing the costs of dealing with E-discovery. | | | | |
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< | We can always tell from its ominous tune that something bad will happen in a horror movie. In the legal profession you can usually tell from the continued pressure of clients to cut legal bills or the demise of a reputable firm. Just recently, the renowned law firm originally known as Howrey & Simon shut operations, while two years ago each individual partner was averaging $1 million in revenues. After giving in to pressure to cut legal fees and having lost an important source of income over to e-discovery vendors, its money churning shop closed. Over 50 years of experience and it took a little under a year to dissolve.
Notes
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> | Moreover, according to a survey published by the DukeLawJournal? , sanctions and awards for spoliation of electronic data have been increasing, especially in recent years. Of particular interest is the fact that, in 2009 alone, more sanctions were awarded than in the period between 1980-2010; the monetary awards ranging from hundreds to millions of dollars. | | | | |
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< | Partnership implosion
rates are non-zero even in flush times, however, so individual
examples are not very probative. Many of the firm failures or
near-deaths since 2008 I actually know something about had as much to
do with the partnerships' investment decisions as with their practice
economics, so I'm dubious about the attempt to tie a short-term
detail (the effect of technological incompetence on the economics of
discovery practices in large-scale litigation) to the longer-term
changes in political economy. I think you're confusing weather with
climate.
Once more in history, change is driven by economics; economics which, in this respect, have come about as a result of legal advancements in technology and the reengineering of the practice of law. Assuming that the “liberal discovery process”, initially adopted in 1938 has worked adequately throughout the years, by now it has taken its toll. No longer should attorneys be able to rely on broad discovery requests, drawn in turn from overly broad pleadings, to “ensure” the “full disclosure” of pertinent facts to “avoid unfair surprises” and have cases “decided on the merits”.
Maybe. But also maybe
not. If people who know what they are doing can use cheap hardware
and free software to attain better information control practices at
near-zero cost than the idiots who run big law firms are obtaining
using millions of dollars, then maybe electronic discovery under
conditions of infoglut is a terrain on which we can equalize, rather
than one in which the previous disparities between rich and poor
litigants will get worse. The piece you cite is another example of
bullshit claiming to be scholarship because it's in a law review.
Forget what some people who don't know what they're talking about
have to say and do your own thinking. Two possible stories about
what will happen, each plausible, apparently contradictory. How do
you decide what your own view of the situation should be based on?
A new approach to resolving cases is required. And panaceas such as
the “initial disclosures”/“meet and confer”
provisions, to “tailor” discovery, have already proven
unsuccessful. Although there might not be a single approach to
embetter
the system, absent truthful
cooperation among counsel, clients will continue to complain about
fees and e-discovery costs will continue to bar parties from the
courthouse.
Not a word.
Certainly, many will want to go back to home, to the old
business model. But, let them stay home. We don’t want their
help.
You have not shown
that "e-discovery costs ... bar parties from the courthouse." You
have shown that wasteful spending occurs. But the purpose of
most litigation is waste. Litigation is a prime example of Thorstein
Veblen's point about the centrality of waste in the actual behavior
of economic actors. Those who litigate on behalf of poor people
don't have to engage in conspicuous vicarious consumption and labor.
Their purpose is not to show how rich and puissant their clients are:
their purpose is to achieve justice. If technology will allow them
to do that more cheaply, technology is opening the courthouse. If
the powerful and wealthy continue to use bad expensive technology and
ruin themselves doing so, the courthouse door is being swung wider
open by their foolishness, and the poor and powerless are getting
even more equalization than they might otherwise.
Notes
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> | At the same time, lawyers are being bombarded with advertising of proprietary software from E-discovery vendors purporting to have the holy grail of discovery; the only solution for finding the “smoking gun” of their claims. And all of these vendors promise that their technologies and services will provide the best results for collecting and processing electronic data in exchange for reasonable and justified fees. | | | | |
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< |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line:
# * Set ALLOWTOPICVIEW = TWikiAdminGroup, AlejandroMercado | >
> | It is always possible that this is all nonsense and that the concerns are misleading; that there are inexpensive solutions out there for lawyers to deal with electronic data in discovery. It might even be that this is all part of a well-concocted commercial scheme or simply a lot of background noise that has come about as a result of the leading voices in the subject matter not really knowing or understanding what they are talking about. The truth is that lawyers’ recent interest in requesting the production of electronic data vis-à-vis the technological incompetence that permeates all of society is playing a mayor role in bringing about these results. Lawyers’ traditional adversarial approach to an overly broad and liberal discovery process is also playing an important part. And unless we tackle these aspects, the discovery process in the litigation context will become unmanageable.
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< | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list | >
> | B. BackToSchool? ? | | | | |
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< | | >
> |
Both lawyers and judges are usually not computer engineers, nor tend to have knowledge on computer forensics, the storage/traffic of data or other technology related matters. Therefore, they lack the know-how, let alone the experience, to properly handle the issues regarding the discovery, review and production of electronic data. In addition, corporate parties – which hold/handle larger volumes of electronic data – are generally not exempted from this knowledge gap given that their IT staff does not get involved in their litigation disputes, but rather works to ensure the proper functioning of their technology infrastructure.
Accordingly, none of the above-related effects should come as a surprise to us. Ignorance in the subject helps drive the aforementioned disputes, the debates of information inflation, and the need for rules and court intervention. They are a direct result of our computer illiteracy. And if some players with the required knowledge to handle these matters use it to their advantage to fill their pockets, it goes unnoticed. In the end, their services are perceived as a response to a market need. | | | | |
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< | Quick question - do you know if footnotes are included in the 1000 word limit? I'm curious to know as I draft my paper. | >
> | Moreover said ignorance, in conjunction with lawyers’ traditional lack of disposition to cooperate throughout the discovery process, fosters disagreements and motion practice, and further delays the prompt resolution of a claim. It is only logical that if the legal representatives do not understand the technical aspects required to handle electronic data, desperate efforts will be held in trying to resolve a widely perceived, but misunderstood problem.
Most obviously, enrolling back in school is not a widely available option. But if we truly want to contain the existing problems involving E-discovery, the approach should be to encourage the education and training of the technical aspects of electronic data and the use of efficient/inexpensive technologies.
This technical education should be balanced with an effort to push lawyers to cooperate further through dialogue and transparency. The fact that opposing parties cooperate with each other throughout the discovery process does not necessarily entail going against their clients’ interests. Thus, by fostering cooperation, lawyers can safeguard their clients from existing E-discovery disputes while still serving the interests of justice.
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<
< | -- DevinMcDougall - 17 Oct 2011 | >
> | II. Conclusion
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< | I wrote a paper last year on discovery abuse. This doesn't make me an expert obviously, but I'd like to point out that whether or not discovery has become more disproportionately expensive over the years, especially as a result of E-discovery, is up for debate. I am not at all saying that it isn't a problem, but I spent 8 weeks in a class last year talking to judges and practitioners on this topic, none of whom were of the same mind on this. Moreover, every empirical study on the cost of discovery (that I know of) has concluded that the overall cost of discovery is not problematic. I point this out only to say you may want to be careful before you rely on a survey as proof that the discovery rules and the current paradigm should be amended. | >
> |
The desire to discover electronic data is a current reality in our legal system. But, many of the effects resulting from E-discovery have been fuelled by our computer illiteracy. If any of the issues involved are to be resolved, technological education is an indispensible element. This should be done along efforts to force lawyers towards further cooperation. Although it might be wishful thinking, fortunately this is being helped by clients’ adverse reactions to excessive fees and recent demands for alternative fee arrangements. I can’t foresee a faster way to address this area in a simpler context.
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< | -- AustinKlar - 19 Oct 2011 | | | | |
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< | I think its a supply vs. demand issue as well. While companies like Amazon and Google might be using these new versions of law firms, Amazon and Google are also using the traditional big law firms as well that you describe as becoming outdated. One of the firms you mentioned is a shop of 20 lawyers. There is an access problem with a firm that has only 20 lawyers. Many many cases will be turned away because there simply are not enough lawyers to handle every case that people might want litigated at a given time. This is why the big law firms that use the traditional methods are still doing well, and still continue to grow, even in a down economy. A firm that has 1500 lawyers can more readily take on a breadth of legal work than can a boutique firm. All firms pick and choose their cases but when you have a massive firm, you can choose more cases. Thus, if the option is not having your case litigated at all, or paying high fees to lawyers of the traditional firms, unless the fees outweigh what you plan on getting through litigation (which is doubtful), you are going to litigate, and you are going to pay because you demand a service and there is not sufficient supply with these smaller firms employing new technological methods. | >
> |
You are entitled to restrict access to your paper if you want to. But we all derive immense benefit from reading one another's work, and I hope you won't feel the need unless the subject matter is personal and its disclosure would be harmful or undesirable.
To restrict access to your paper simply delete the "#" on the next line: | | | | |
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< | Morrison & Foerster represents UPS. Its actually kind of funny. UPS wants to let people know not to try and steal from them, or to cheat them in any way. Junior associates at MoFo? actually go to court representing UPS and argue over claims that are worth only a couple hundred dollars or a couple thousand dollars (in small claims). MoFo? wants lawyers to get experience, and UPS wants people to know that they are serious about not messing with them. In many of these cases, 1 hour of lawyer fees is greater than the money UPS receives in judgment. But its not about the money, its about the principle of the matter. So money doesnt always matter (especially when it comes to seeking only injunctive relief), and the demand for legal services vastly outnumbers the supply provided by these new boutique firms of 20 lawyers using newer technology that are cheaper. No one is going to have an incentive to switch to these new versions of firms if people are still in need of the traditional law firm. | >
> | # * Set ALLOWTOPICVIEW = TWikiAdminGroup, AlejandroMercado | | | | |
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< | -- AustinKlar - 19 Oct 2011 | >
> | Note: TWiki has strict formatting rules. Make sure you preserve the three spaces, asterisk, and extra space at the beginning of that line. If you wish to give access to any other users simply add them to the comma separated list |
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