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Virtual Canary in the Digital Mine #3: Total Pre-Cull (Part 1 of 3), Or, How I Learned to Stop Worrying and Love Predictive Coding

In a land that is right here and in a time that is right now, a technology has arisen so powerful that it can replace basic human document review. Is it time to bow down before our new robot overlords?

First, here’s a little story about me: my life in the legal world began as a paralegal. My first case was a GIANT patent infringement case that was already six years old and had involved as many as five companies, multiple US courts, the ITC and an international standards committee. I knew nothing about any of this.

On my first day, my supervisor (a paralegal with at least eight other cases driving her crazy) sat me down in front of a Concordance database with a 100,000+ patents and patent file histories. “Code these,” she said. I learned that “coding”, for the purposes of this exercise, meant manually typing the inventor’s name, the title of the patent, the assignee, the file date, and other objective data for each document. I worked on that project – and only that project – for at least the first six months of my job. After a week or so, time began to blur.

What I know, in retrospect and with absolutely certainty, is that as time began to blur, so did my judgment. So did my attention to detail. If you could tell me that I did not make at least one mistake a day – one inconsistent spelling, one reversed day and month, one incorrectly spaced title – I frankly would need to see your evidence. I would not believe it. The human mind is trainable but it is not a machine.

After some time, I became slightly senior due to the fact that others were hired. I went on to code other projects. And then teams I managed coded other projects. Most of these projects covered the same ground: coding objective data so that the attorneys could perform subjective searches for it, maybe, someday. But, other projects were a little more advanced: we examined doc dates to determine relevancy or maybe we examined names and email addresses to determine privilege. As a bonus, if we saw something that was handwritten or that had a handwritten note, it was immediately suspect and perhaps “Attorney Work Product”.

In my personal experience, that was human coding. Moreover, the firm I worked for charged its clients for my time (billed, of course, by the hour) and for the time of my colleagues and other firms billed their clients for the time of our peers at other firms. The only explanations I have for this are that either clients were so successful that they no longer reviewed invoices or were so beaten-down by years of bills that they assumed they had no other choice. So, we continued, coding like fallible machines.

And then 2008 happened. And the bottom-line is an engine of change. Clients began to ask for the unthinkable: a better way to review documents. They began to (shudder to think) pay attention to the work folks like me were doing and weigh that against the price they were paying . . .

In the meantime, “googling” became a lower-case verb and librarians began pondering extinction. The Yellow Pages had already been reduced to a doorstop and Encyclopedia Brittanica stopped printing. Why? Because “technology” (accessed with our “computers”) now “assisted” us in “review”ing all of the information at our disposal without ever having to crack a book. The evolution of the human-computer has begun. Just ask my two-year-old, if you can pry her away from “her” iPad.

OK, why did I spend my valuable word-count discussing this? For context, friends.

And because, next time, I am going to – head on – tackle the fears that many still have of “Technology (or ‘Computer’) Assisted Review” (“TAR” or “CAR”). And hopefully instill in you an even greater fear: a fear of not embracing it. The machines are here to help us. Our poor coders are not equipped for the tasks we’ve given them. And the tasks are getting larger by the day.