The Puzzling Resistance of Lawyers to Electronic Discovery

My recent comments about teaching electronic discovery to lawyers seem to have touched a nerve. I’ve had a number of people get in touch with me about the questions I raised. In addition, my friend and e-discovery guru Sharon Nelson raised two other important questions about EDD in a comment, namely:

1) Will there be a shake-out between those law firms (especially among the big boys) that are well-prepared to deal with electronic evidence and those that are not?
2) Will there be an awakening by corporate clients that they need to assess their own litigation readiness with respect to e-evidence AND that of their outside counsel?

I had a great conversation today about the role of litigation support managers in all this (very, very important) and what I call the puzzling resistance of lawyers to electronic discovery.
It raised another question for you to consider, as I have been for a while, but, as yet, with no good answer. I’m surprised by the passivity of litigators, traditionally a group known for aggressiveness, when it comes to electronic discovery.
Here’s the question:

Does the passivity and reluctance we see in litigators an indication that protecting the quantity of billable hours, maintaining the status quo and staying in the comfort zone have become more important than winning cases?

I’ll raise the question for discussion, but, believe me, I’m not the only one who has raised this issue in the past year.
Lots of good questions out there on this topic. What are your favorites? Perhaps there would be some interest in doing a LexThink event that delves into these electronic discovery questions, especially one with a focus on the role litigation support managers and electronic discovery lawyers will play in the process. If that interests you, let me know – we’re working on putting together some future LexThink events.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Learn more about electronic discovery at Dennis Kennedy’s Electronic Discovery Resources page.
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Help Me Decide about a Book Project

Yesterday, I was contacted by two publishers who want me to write a book. It’s probably something I need to get done one of these days. The trouble is that everyone wants me to come up with the idea for the book.
I’d like to ask the readers of this blog to help me with this. If I were to write a book, what would you most like it to be about? Leave a comment or email me at denniskennedyblog @ gmail . com.
I’ll probably share a few of the ideas I have in the old notebook in a few days.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Learn more about legal technology at Dennis Kennedy’s Legal Technology Central page.
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Crossroads: Western Wall / Jerusalem

I’m watching (again) a show on CMT called Crossroads that features Rosanne Cash and Steve Earle. I’ve been a fan of Steve Earle since his great debut album.
It’s a warm and relaxed show filled with stories and excellent performances.
But the reason you should try to catch it is a medley they perform live of Rosanne’s song called “Western Wall” and Steve’s “Jerusalem.” Western Wall is amazing, but from the first chord of Jerusalem you know that you are about to witness magic. And that’s exactly what you get. What a performance! Beats the heck out of whatever else you might be watching on TV. Trust me on this one.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Like what you are reading? Check out the other blogs where I post – Between Lawyers (feed) and the LexThink Blog (feed).
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Computer-based Legal Decision-making in 2006

Ron Friedmann has a thought-provoking post called “Computers as Lawyers?” that I recommend that everyone who likes to think about the intersection of law and technology take a look at.
The post strikes a lot of notes for me. For example, I’ve talked with Marc Lauritsen (Marc, how can we talk you into blogging?) and others on and off over the last few years about decision trees.
I remember back in law school at Georgetown, I took one of the first classes in Computers and the Law offered in the US. That was in 1982. Milton Wessel was the professor and I don’t know many classes that I enjoyed more. One day, we were talking about artificial intelligence and the law, and the applicability of computers to legal decision-making. I asked this question: If we “knew” (in a measurable way) that an AI program was more likely to reach a measurably “correct” result than a jury, would we change from a jury system to a software system? There was an impassioned discussion, with the overwhelming consensus that people prefer a less accurate human system than a more accurate software system. What was interesting is how the discussion suggested that “objective correctness” was not in fact the goal of the legal system and that justice is something fuzzier, yet more comforting than pure accuracy.
It’s now 25 years later and I’m curious whether lawyers end up in the same place. I suspect that as more is at stake, the “human element” feels more essential, but as less is at stake, issues are more mundane, and speed and efficiency matters more, computerized decision-making becomes more attractive. Or, let the computers take the boring cases and save the interesting ones for us.
Read Ron’s post and the links he points to and give it some thought.
The money quote:

Lawyers (well, at least the forward thinking ones) are increasingly relying on “smart search engines” to reduce the cost of reviewing e-discovery documents.

[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Learn more about legal technology at Dennis Kennedy’s Legal Technology Central page.
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Remembering Orianna Fallaci

We lost one of the giants recently when Italian journalist Orianna Fallaci passed away. There have been many appreciations, and I especially liked the one by Kim Pearson.
Like many, I was captivated many years ago by her classic book, Interview with History, which I plan to reread. In it, as in all her writing, you see how it is possible to write with passion and fire about things you care about and believe are important. And how the world needs those who can ask the hardest questions with courage and without compromise.
[Originally posted on DennisKennedy.Blog (http://www.denniskennedy.com/blog/)]
Like what you are reading? Check out the other blogs where I post – Between Lawyers (feed) and the LexThink Blog (feed).
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