Predictive coding

Ed Sohn and Joe Borstein

Ed. note: Please welcome our newest columnists, Ed Sohn and Joe Borstein of Pangea3, who will be writing about the alternative legal services market and the future of the legal profession.

Stop what you’re doing! Take a journey with us to the alternative side of the legal profession for the next few minutes (and through our ongoing column). There is a revolution happening in the practice of law. And you should join it. Or, at the very least, break out the fanny packs and the binoculars and watch. For now, stop your SmartTimer and get off the clock… because as it turns out, reading this is NOT billable. Maybe try your favorite non-billable code, like “professional development.”

Here’s the newsflash: entrepreneurs and innovators are changing the legal profession for the better, having fun, and making real money in the process. The unstoppable forces of modern business — technology, globalization, the need for sleep/food/conjugal visits — are at the gates and climbing the highly defensible ivory tower….

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two businessman puts puzzle

The discovery of electronically stored information (ESI) is loaded with potential pitfalls and failure unless the parties add two components to the mix: cooperation and collaboration. Lacking those components, ESI discovery, at least sometimes, can be one of the more painful experiences for the average trial lawyer.

The problem to overcome is largely that trial lawyers, by their nature, are competitive souls and tend toward competition rather than cooperation. Add to this personality that of the client who expects her lawyer to win everything, every time and we are off to the races.

In a recent case, the Honorable Magistrate Judge Peggy Leen seems to deal with overly competitive parties and lawyers not inclined toward collaboration; in the recent decision in Progressive Casualty Insurance v. Delaney, 2014 WL 2112927 (D. Nev. May 20, 2014).

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There is a popular conception, within and without the legal industry, of lawyers as Luddites. If this is true, there is a massive disconnect between the burgeoning legal technology industry — on abundant display at the recent LegalTech New York Conference — and its would-be clientele, lawyers themselves. Can it be that while legal tech entrepreneurs and innovators are racing to create a more efficient and productive future, there is widespread indifference on the part of the attorneys toward these emerging technologies? Considering that these technologies are promising (threatening?) to transform the profession and practice of law, this would be a curious attitude.

On attending this year’s LegalTech panel on the findings of the ILTA Tech Survey, Joe Patrice could not help but conclude that there is a “profound lack of technological savvy among law firms.” To cite but a few examples: 80% of lawyers do not record time on a mobile device. Nearly 90% of firms do not maximize their cybersecurity capabilities. Nearly one-third of firms are using a version of Word that’s seven or more years old. And so on. The survey’s findings do little to contradict the idea that “technology leaps, the law creeps.”

Further reinforcing this “Luddite” notion is the Flaherty/Suffolk University Law School tech audit. This tool tests a range of fundamental technical competencies of law firm associates and the results can be construed as evidence of a lack thereof common to law firms. According to Casey Flaherty, an in-house counsel at Kia Motors and the creator of the audit, the failure rate of associates attempting the test is, thus far, one hundred percent.

A couple weeks back, we conducted a little survey of the ATL audience concerning your familiarity with some legal tech concepts. These ranged from the most “basic” (from the perspective of the tech world) to the somewhat more obscure (e.g., “dark data”). Besides your familiarity (or not) with these concepts, how relevant are they to your current or future practice? How successfully is your employer addressing these issues?

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* The Dukes of Hazzard and Braveheart cited in the Eleventh Circuit. Other circuits, the gauntlet has been thrown down. [Volokh Conspiracy]

* Dave’s not here, man. Probably not the smartest stoner on the planet. [Lowering the Bar]

* Former Skadden attorney loses her appeal claiming that insomnia constituted a disability. It’s a setback for her, but nothing worth losing sleep over. [National Law Journal]

* The Second Circuit agreed with every other court that heard the motion and denied the effort to recuse Magistrate Judge Peck from the Da Silva Moore predictive coding case. [IT-Lex]

* Maybe it’s time for law professors to get off their duffs and try helping out their unemployed students directly. [Concurring Opinions]

* Chief Judge Easterbrook allows a $25K student-loan discharge for a “destitute” paralegal. The educational-industrial complex is not going to sit still for this. [ABA Journal]

* Saira Rao, of Chambermaid (affiliate link) fame, has a new publishing venture — check it out. [Kickstarter]

* Oh, BARBRI. What’s the Matter with Kansas, indeed (after the jump)….

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* “The bottom line is … I’m the 800-pound-gorilla that you want to settle with.” By the way, if you weren’t sure, Howrey’s trustee Allan Diamond wasn’t kidding about suing the firm’s former partners. “Either we’re going to cut deals, or I’m suing you.” [Am Law Daily]

* It takes two to do the partnership tango: in the expansion of its Financial Institutions Group, Goodwin Procter picked up Brynn Peltz, an attorney with more than 20 years’ experience, and an ex-partner at Latham and Clifford Chance. [Fort Mill Times]

* Hello, predictive coding! Goodbye, jobs! Not only can computers do the work of lawyers on the cheap, but they can do it more intelligently, too. Get ready to welcome our new digital overlords. [WSJ Law Blog (sub. req.)]

* Another day, another op-ed article about the law school crisis in the pages of the New York Times. But at least this one is about something most can support: changing the third year of law school. [New York Times]

* As it turns out, with 82 applications for the program’s first five spots, there’s actually a demand for Yale Law’s Ph.D. in Law. So much for this being “[t]he worst idea in the history of legal education.” [National Law Journal]

* Linebacker Jonathan Vilma’s defamation suit against NFL Commissioner Roger Goodell in connection with Bountygate was dismissed. Wonder when Goodell will suspend Vilma for thinking he could win. [Bloomberg]

* Francis Lorson, former chief deputy clerk of the Supreme Court, RIP. [Blog of Legal Times]

* Roger Clemens was found not guilty on charges of lying to Congress about using steroids. [New York Times]

* Why did the ABA Journal kill a feature story on mentoring by Dan Hull and Scott Greenfield? The world may never know, and the world may never see the story. [Simple Justice]

* Q: What does a male lawyer do when his female secretary gives him a nice little Father’s Day gift? A: Freak out because random acts of kindness are so unusual, and then write a letter to a New York Times advice columnist. [New York Times]

* If you’ll be in D.C. this Thursday, June 21, check out this battle of the law firm bands — a fun event that we’ve covered before, as well as a fundraiser for a worthy cause. [Banding Together 2012]

* ATL readers are awesome. You guys have already been a huge help to this court reporter who almost died when he fell into the Chicago River. The family is still taking donations, and now there’s a PayPal link, so it’s even easier to lend a hand to Andrew Pitts and his family. [Kruse Reporters Blog]

* A closer look at the continuing rapid progress of predictive coding (or, as skeptics would say, our new computer overlords) in legal discovery. [WSJ Law Blog]

* New York’s “hot dog hooker,” Ms. Catherine Scalia (no, not that Scalia), was sentenced to jail. Maybe she should have deigned to sell chocolate milkshakes instead. [Gothamist]

We have been covering the ongoing saga of Da Silva Moore v. Publicis Groupe et al., the federal case at the forefront of emerging predictive coding technology, for several months now. At first we were like, “Ooooh! A federal judge likes predictive coding!” And then we said, “Uh oh, looks like trouble in paradise.” And then things seemed to get better for a while, and we thought we might get a Hollywood ending to the dispute.

But we may have to wait for a while longer for the grand musical finale. Because it looks like, as of a new ruling from Monday, it looks like the predictive coding party has been temporarily called off.

So far, Magistrate Judge Andrew Peck has been at the center of the controversy. His open enthusiasm for the technology (which we covered before Da Silva ever made headlines) has been the source of much legal wrangling. And the question now seems to be: is Judge Peck still willing to go to the mat over predictive coding?

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It has been a busy week in the e-discovery world. On Wednesday, a county court in Virginia ordered litigants to use predictive coding, despite the plaintiff’s objection. Last week, the plaintiffs in Da Silva Moore v. Publicis Groupe et al. tried to boot Magistrate Judge Andrew Peck from the case, as well as roll back his landmark ruling, which endorsed the technology for the first time.

Well, despite the haters, no one can stop the march of progress. A federal judge weighed in on Da Silva Moore yesterday. It looks like the score is Robots 1, Old-school Attorneys 0….

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Despite all the brouhaha surrounding Magistrate Judge Andrew Peck‘s recent predictive coding ruling, the gates on the cutting-edge electronic discovery technology appear to be opening. Not the flood gates, but the kind of gates big enough to let deer into your back yard.

We have another case this week, from a small county court in Virginia, where a judge has ordered predictive coding despite the plaintiff’s objections. Keep reading to hear about the latest technology-assisted review in litigation.

UPDATE (4:00PM 4/26/12): We’ve obtained the plaintiffs’ motion, as well as the defense’s response. You can see them below…

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Over the last couple of months, we have written a few stories about Magistrate Judge Andrew Peck. Judge Peck generated headlines as the first federal judge to approve a litigation protocol for e-discovery that included predictive coding technology.

For a while, the story was pretty happy-clappy. It was a start of a new era. E-discovery — through predictive coding that had now arrived — would be cheaper, more efficient, and faster. Yay!

But, alas, all is not well in this legal technology paradise. One of the parties in Da Silva Moore v. Publicis Group, the case that started this whole saga, has requested that Judge Peck recuse himself.

They say his enthusiasm for predictive coding crosses the line into partiality…

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