Predictions: Meaty Material

December 3, 2014

Notwithstanding my liking for chocolate with venison, you don’t normally find meaty centres in a box of chocolates (though I have never been quite sure what is in Turkish Delight). But perhaps the best and freshest selections should consider the innovation – or perhaps I should abandon that chocolate box theme for this year’s predictions. Certainly these predictions from Jan, Joanna and Chris provide substantial food for thought and should delight the palate of discerning readers.

{b}From Jan DeCerce, Director of IT and Operations at Lewis Silkin{/b}

I believe that everyone now has a good understanding of what the cloud really means – and I predict the cloud based document management vendors will be making a clean sweep. The sea change has already started with Microsoft’s legal offering and NetDocuments; where do they think all the emails with attachments go after all? It’s been emperor’s new clothes for a long time for the incumbents – they’ve been raking in the maintenance for years and I reckon they’re already looking for other wares to sell. There are some really cool document assembly ideas floating around which are cloud-based too – I predict there’ll be a mighty shift from install to offsite this year.

{b}From Joanna Goodman MBA, Writer and columnist for publications and websites including the Law Society Gazette, Legal Business and Legal IT Professionals. Editor of Legal IT Today:{/b}

I feel quite good about my predictions last year, notably on big data, voice and video, data privacy, cybersecurity and mobile apps – I’m still waiting on my smart watches prediction though!

{i}1. Not the robots we were looking for!{/i}

Robots – these have been mentioned in numerous futurist conference keynotes. There were scary predictions – fee-earners would be replaced by robot lawyers, wearable technology would evolve to a point where we were effectively half-human and half-robot, and ultimately we’d all upload our brains/consciousness into robots and become immortal! I checked my new smartphone and wondered about built-in obsolescence and the cost-benefit of maintaining an exponentially increasing number of human ancestors decanted into legacy hardware. It turns out the futurists were only partly right: from a business perspective, rather than applying technology to the human condition, it’s about humanising technology to automate routine tasks that also involve a judgement element. This also applies to wearable technology – humanising is about making it genuinely wearable – or fun, hence the popularity of GoPro wearable cameras.

In 2014, process automation became more sophisticated. In the latest issue of Legal IT Today I published an opinion piece by BLP’s Matt Whalley about robotic process automation (RPA) in which he describes socio-technically designed (ie humanised) automated workflow processing new customer applications. It doesn’t require too big a leap of faith to apply these technologies to legal process automation such as conflict checks, billing issues and even contract negotiations by combining workflow technology, artificial intelligence (AI) and data analytics – i.e. applying AI to unstructured data by applying previous experience to future situations.

This is not as fanciful as robot lawyers: it’s about blending cutting-edge technology with historic data to boost productivity and revolutionise the back office.

{i}2. Personalised apps{/i}

Last year it was all about building apps. Now that mobile working is the norm and nearly all firms have a mobile app, the challenge is to personalise client communication in a way that hopefully differentiates the firm from the competition, bringing it closer to its clients and developing new business – and thereby boosting the return on its IT investment. This came to the fore recently when one of Lord Sugar’s apprentices (who was fired) said that her business idea was to develop a client app for law firms. Stephens Scown in Cornwall is one of the firms that have already done this. I expect we shall see a surge in personalised client apps for various devices in 2015. But once everyone is doing it, will it still be a differentiator?

{i}3. Big data disrupting eDiscovery{/i}

Finally, it may not happen in 2015, but I envisage big data threatening one of the most lucrative elements of legal IT: eDiscovery. I have been to numerous conferences and trade shows dominated by eDiscovery vendors that use predictive coding, technology assisted review etc to analyse large volumes of data. I have also written about big data analytics, which apply algorithms to large volumes of unstructured data to identify and predict patterns of behaviour. I’m wondering how long it will take to apply/adapt big data analytics, AI and even RPA to eDiscovery and significantly reduce litigation costs.

©Joanna Goodman 2014

{b}From the eDisclosure oracle – Chris Dale of the eDisclosure Information Project Ltd:{/b}

Usually, the easy prediction at this time of year is that I will submit my predictions to the SCL just in time to miss the deadline for publication in the magazine. Andrew Mitchell MP has made us more conscious of deadlines, so let’s see if I can get these through the gate on time.

What’s lurking in the eDisclosure wood shed which might take you by surprise in the coming year?

{i}Sanctions for rule breaches{/i}

Rule 3.9 CPR hasn’t gone away just because Mitchell has been replaced by Denton. The Denton requirement is that the court take account of all circumstances in deciding whether to give relief from sanctions. 2015 will bring us sanctions cases whose outcome reflects the whole conduct of the litigation to date, so start preparing now for that day, 14 days before the first CMC, when you must have your Rule 31.5 ducks in a row. You don’t know what Rule 31.5 requires? Good luck.

{i}Agreements and Protocols{/i}

We will see more attention paid to the detail of agreements about disclosure between the parties. We have already seen one case (Smailes & Anor v McNally & Ors [2013] EWHC 2882 ) in which the judge found himself unable to determine whether or not the parties had reached an agreement about the management of eDisclosure. If you are in the Technology and Construction Court you will be chivvied towards such an agreement by the TCC Protocol, a new version of which is due out soon; we will see the influence of that spread to other courts during the coming year, as courts flex their active management muscles and realise how much future trouble can be nipped in the bud by a sensible agreement up front.

{i}eDisclosure checklists and questionnaires{/i}

We will also see the increased use of questionnaires and checklists within firms designed to make sure that nothing gets overlooked. It would be prudent to base these on the Electronic Documents Questionnaire from Practice Direction 31B but, whatever its origin, lawyers will need a standardised way of making sure that nothing gets overlooked. I came across one (very good, regional) firm recently which is devising a kind of playbook to ensure a standardised approach between offices covering all the phases of litigation, including disclosure. Expect to see more of these as firms, released from the stupid post-Mitchell focus on trivia, get their eyes back on the procedural ball.

{i}Non-conventional data types and sources{/i}

This checklist idea will be encouraged by a case in which the lawyers will simply forget to ask their clients or their opponents about some source of electronic data whose absence becomes painfully obvious at a late stage in the proceedings. This might be an apparently trivial social media source like Twitter, Facebook or LinkedIn or something else which makes the lawyers suddenly realise that all this talk about “the cloud” embraces everyday applications which people use to communicate. It might be a photograph whose metadata pins a witness to a place and a time. These are no less a “document” than an e-mail or a Word file. The problem won’t come simply because of a formal defect in compliance with the rules but because the overlooked source contains evidence which turns the case.

{i}The Internet of Things and Wearable Technology{/i}

Two other technological developments will move from the realm of apparent fantasy into disclosable evidence. One will be the Internet of Things. A “document” is anything on which information of any kind is recorded, and that now includes a wide range of domestic, industrial and other devices which record and store information and share it via an IP address. The other will be some piece of wearable technology – a Fitbit, Google Glass, a smartwatch, or any one of the increasing number of devices which people now carry around with them in addition to the all revealing smartphones and tablets.

{i}Technology-assisted review{/i}

Technology assisted review will move from being sneered at as a “black box” to everyday use – I don’t mean that everyone will use it for every case, but lawyers squeezed between rising volumes, abbreviated timetables, court strictness and costs pressure will come to see that they can only cut through the conflicts by using technology designed to leverage (to use that ghastly but useful term) human input across document populations too great to be reviewed economically by conventional means. 2015 will be the year when the benefits of prioritisation become clear – who will stolidly plod through file after file in date order when readily-available technology will put the entire corpus of documents into a presumed order of relevance?

{i}Information Governance{/i}

Another term will make the transition from uncomprehending derision to reality. Information Governance embraces a wide range of functions and skills. Clients must surely tire of paying their lawyers to deal with their information management in a hurry and at extravagant hourly rates, and will start seriously considering pre-emptive categorisation and deletion of material which is of little or no value.

{i}RTFR and RONI{/i}

Two sets of initials matter for 2015. One, my favourite, is RTFR, where the first R is “Read” and the last R is “Rules”. The other set is RONI, the negative twin to the perky ROI. In an eDisclosure context, the Risk of Not Investing applies to training and skills as well as to technology.