Predictions 2011: Technology & Strategies for Lawyers – E-disclosure, E-evidence & Forensics

December 22, 2010

Technology & Strategies for Lawyers 

From Stewart James, Partner & Group Head of Public Sector, DLA Piper: 

I think 2011 is the year that we will start to see Richard Susskind’s predictions coming true.  The combination of austerity measures, both in the public and the private sectors, and the adoption of standardised contract models, such as the Model IT Services Agreement, have encouraged some firms to develop automated tools and increase the commoditisation of the ICT sector.  Those businesses that have recognised and developed offerings to deal with this will retain market share, but those that haven’t will lose it and will be increasingly squeezed out of the sector.  Automated tools will also help those working at the quality end of the market to work more efficiently, which will improve the opportunity to win work whilst pressure on costs continues.  However, automation reduces cost and does not increase profit per se, which means that firms will have to look again at the spectrum of the market they wish to service.  I also think that we will see a law firm developing a mobile application (ie an iPhone “app”) that delivers a genuine product as opposed to brochure-ware.  

From Jan Durant, Director of IT & Operations at Lewis Silkin LLP: 

2011 is going to be all about the Cloud.   We’ve all been getting there with browser based apps – the SharePoint document management system was our final frontier.  Who will win the lion’s share of the market though?   I’m putting my money on Google for home users and Microsoft BPOS for business.    And as far as the Legal Services Act is concerned, I don’t see it making much difference to law firms in the short term. 

From Bryan King, Legal e-billing consultant 

2011 will be a year of significant change in the areas of the management of costs and the billing of legal services. We are seeing an upturn in the interest in e-billing between the corporate legal departments and their external advisors – not just in the UK but within the wider EU.  The introduction of Alternative Fee Arrangements (AFAs) will gain more momentum as law firms and clients look at different charging models for legal work. I also believe that we will see the beginnings of major changes in the way that costs are managed in civil litigation proceedings following Lord Justice Jackson’s report. 

From Joe Reevy, Director of Words4Business: 

I’d like to say I think 2011 will be the year when firms start to realise that there is a huge variation in the use of technology on the web and that the sensible approach is a studied one, not one driven by the latest fads – in particular:

  • understanding of the risks as well as the potential rewards of social networking (loss of control of brand values etc);
  • the realisation that for most firms SEO probably won’t be an effective use of money; and
  • understanding that there actually are some very effective ways of marketing on the web that are not getting the publicity they should.

However, I doubt that that will be the case. Firms will continue to be driven by factors other than solid business decision making. In our specialist area of marketing, I think many firms will continue to use ineffective (but more comfortable and often seemingly ‘modern’) solutions to the issue of finding profitable work and client retention instead of more intelligent and effective ones. It will come, but is 2011 the year? I doubt it. 

From Peter Birley, Director of IT and Business Operations, Browne Jacobson LLP 

2011 will be the start of a (further) period of challenges and opportunities as we see the possibility of Alternate Business Structures coming into play late in the year, plus the impact of the coalition government’s budget on the UK economy.

This will mean that the drive for efficiency will continue particularly as clients will continue to seek value for money.

In IT terms we will see a balance between keeping costs down and making investments that meet the efficiency process or add value to clients.  

With that background in mind I can see:

  • voice recognition coming back into play particularly as the technology has moved on a pace and can now bring some real benefits
  • investments in unified communications, which again has seen further enhancements, and which will enable a more flexible and client responsive workforce
  • automation of processes (workflow) probably on the back of business transformation projects
  • cloud computing continuing to knock on doors but not making any significant inroads until 2012 at the earliest
  • tablets and smartphones making significant inroads into legal with the battle of the iPad versus the Playbook, and with the serious side-effect of making lawyers more mobile with rapid access to readable information. 

From Carrie Reevy, Managing Editor at 

I predict that 2011 will be the year when firms that use technology effectively (ie making effective use of the plethora of excellent low-cost – often cloud based – software and outsourcing non-core functions) to drive out costs become the norm, rather than the exception, for new firm formation. More significantly, these firms will really start to hurt the core businesses of medium-sized firms in particular. This is clearly a growing trend. A third of the new clients for our system are new firms working in a very low-cost environment, whose business model is to offer superior service with a stripped-down cost base. 

Whether this will bring about the revolution (and that word is carefully chosen) in thinking required by many firms to survive is debatable, but the prognosis is dire in the long term for those who do not change. Capitalism works by applying natural selection to the inefficient. Until there is far greater understanding of the internal cost mechanics of the profession, many firms will adapt too slowly to survive. This has nothing whatsoever to do with Tescloaw. It is in many cases about the dynamism and outlook of those forming new firms, who see in technology the ability to reduce process cost, market effectively at low cost and create and maintain solid client relationships. 

E-disclosure, E-evidence & Forensics 

From Peter Sommer, a Visiting Professor at the London School of Economics and an expert witness 

E-disclosure is now important in much relatively low-key litigation and the many solicitors outside the big firms and specialist boutiques will spend 2011 struggling to change their practices to cope with PD 31B and the new questionnaire which commenced on October 1.   Increasingly e-disclosure has to include informal as well as formal records.   The  demographics of computer ownership are changing – approximately 75% of UK homes have at least one PC connected by broadband to the Internet,  there are 120 cellphone contracts per 100 of the population and 28% of all cellphones are “smart”,  holding extensive data and using email and the web.  Moreover as costs of data storage continue to fall, everyone generates and keeps more data which turn will have to be assessed for evidence and reviewed for disclosure.  But there’s still not much stability in the market for affordable document management and analysis tools that might assist the medium-sized firm.

The quantities of digital data to be examined present challenges for the police as well and they will continue to seek ways to make selection by triage work – will they miss important potential evidence, or will defendants argue that police have failed to preserve material which might have assisted them at trial? 

Also on the criminal front we appear to be in for yet more re-organisation of the structure of high-tech crime policing.  SOCA is to become the National Crime Agency and will have an e-crime unit.  Although cybersecurity is a “tier one” priority in the Government’s Strategic Defence and Security Review (SDSR) with real new money of £650m, the roles of the National Crime Agency, the Police Central E-Crime Unit,  the National Fraud Authority and National Fraud Intelligence Bureau potentially overlap. Will they be consolidated, if only to save money?   

From Mike Taylor, Director, i-Lit Ltd: 

My e-disclosure predictions for 2011: 

1.       An increase in claims for wasted costs (under CPR Part 48 and its Practice Direction) by clients whose solicitors have negligently failed to properly take the CPR Part 31 and its Practice Direction into account particularly following applications to the court for further directions on disclosure by well prepared parties who are contending with intransigent, ill prepared, adversaries.

2.       Late 2010 has seen a certain amount of consolidation in the Disclosure Service Provider market and this trend may well continue in the short term as US  Service Providers without a UK presence buy smaller UK operations. They are, of course, drawn by the ability to charge approximately six times what they do in the USA, for the same service. Counter-intuitively this will increase the number of service providers (as some decide to open their own offices without buying) and lower the cost of data processing.

3.       Someone will trip up on the DPA by “transferring” data outside the EEA when conducting a document review.

4.       A Disclosure Service Provider will start to give away the hosting of data for review.

5.       A bank (or perhaps many) will bring e-disclosure completely in-house as regulators around the world continue to bite.

6.       The Twitterati will have their wings  clipped by firms not wishing to be drawn into litigation surrounding employees calling for the burning of airports or the stoning of opinion forming journalists.

7.       Litigation Support Managers will start to be valued by the firms they work for.

8.       US Disclosure Service Providers in the UK will continue to annoy me by referring to disclosure as discovery and Chris Dale  will continue to be annoyed by our use of the word disclosure when everyone else says discovery!

9.       These words will haunt me. 

From Dean Gonsowski, VP of E-Discovery Services, Clearwell Systems (

E-disclosure has become increasingly established as a core business process, with more organisations taking a proactive approach of bringing e-disclosure in-house. With the seemingly unstoppable migration of corporate data to the cloud and the proliferation of social media, practitioners will continue struggling to stay above water as they attempt to preserve, collect, search and process electronically stored information from sources that aren’t traditionally managed behind the firewall.  

From Tracey Stretton, Legal Consultant, Kroll Ontrack 

In 2011, compliance will be a top priority. As the Bribery Act comes into force in April, the focus will be on internal policing to detect corrupt practices. Legal technologies will be used to support proactive red flag reviews by companies of their electronically stored data and internal investigations. The new rules of court on e-disclosure introduce mandatory requirements and the risk of significant court-imposed sanctions for non-compliance is real. As ESI continues to grow at an alarming rate, companies will rely more on technology in litigation to automate document review and reduce human input and cost. Expect to see new cutting-edge technologies such as prioritisation technology to focus lawyers on important documents and predictive coding to automatically classify documents. 

2011 will be the year for innovation and the use of cutting edge technology in the delivery of legal services. The Legal Services Act is set to usher in a new era in service delivery, and with it more competition in the sector but also new opportunities for forward thinking lawyers and others to offer traditional services in different ways. Technologies that introduce automation into the legal process will increasingly be used to reduce costs. E-disclosure technologies able to learn from human reviewers and automatically prioritise or classify documents for review are already being used and they have the ability to reduce costs substantially. Expect to see more use of these technologies in practice, the inevitable skirmishes between opposing parties about the reliability of new technology and guidance from the judiciary and technical experts on how to use them. 

2011 will also be the year of strategic resourcing. With business conditions still tough, and legal budgets even more constrained, General Counsel and law firms will be re-thinking the way they resource legal work and making the most of low-cost centres or jurisdictions and Legal Process Outsourcing to deliver more for less.    

Smartphones, social networking, cloud computing and virtualisation will continue to be adopted due to the business agility, market penetration and cost-savings they offer. The very real threat of piracy, public leaks and increasingly sophisticated cyber-attacks mean that companies will face great challenges and need to beef up security to guard their intellectual assets and their data and protect themselves from financial and reputational damage. As e-mail is bypassed by informal discussion threads, postings and tweets, tech-savvy lawyers and investigators will be thinking about how to tap into these newer sources of evidence.