King Ludd and the Lawyers – e-Discovery and the Luddite Fallacy

Since I am about to refer you to three weighty articles by others, I will keep my own comment to a minimum. The context is the ability of modern litigation software to analyse documents more quickly and more cheaply than lawyers can. This was the subject of my own recent article The relevance of a computer called ‘Watson’ and a television game show to electronic discovery, which sought to explain in non-technical terms what you can expect from modern litigation software applications. The articles to which I now refer you take the discussion one stage further – if software can perform some of the functions of lawyers, and do so quickly and cheaply, then what are the prospects for lawyers? If the first stage of user acceptance is that the lawyers should understand what the software does, then the next is to emphasise that this is a promise of better things, not a threat. The argument takes us back to the machine-breakers of the early 19th Century and the economic theory named for their putative leader, Ned Ludd.

The discussion was kicked off by an article in the New York Times on 4 March. Headed Armies of expensive lawyers, replaced by cheaper software, it covered much of the same ground as my article, including references to ‘Watson’ and Jeopardy! and the marshalling of large teams of lawyers. Where I referred to lawyers having “hangovers, lovers, debts and day-dreams to distract them”, the NYT article said “People get bored, people get headaches. Computers don’t”. The NYT author, John Markoff, and I are clearly barking up the same tree at least in the identification of the technology trends. We differ as to the outcome or, rather, I see survivors and beneficiaries where Markoff emphasises losers

The relevance of a computer called ‘Watson’ and a television game show to electronic disclosure

A computer with a homely name like ‘Watson’ and a US quiz show may sound like trivialisation of the serious subject of electronic discovery / eDisclosure. Equally, a reference to ‘Probabilistic Latent Semantic Indexing” sounds way over the top for a non-technical audience. What if we ally the speed of a computer with the sophistication of software algorithms to mimic human thought-processes? New skills are needed.

Let me make it clear right from the start that I do not understand the deeper technology behind Probabilistic LSI and that I nearly overlooked the many articles about IBM’s computer ‘Watson’. I got the message that ‘Watson’ had beaten the star contenders in a US television quiz game called ‘Jeopardy!’, and gathered also that many commentators at the geek and nerd end of the electronic discovery world were excited about it. What I missed was the experiment’s potential for explaining in lay terms what one might expect from the higher end of eDiscovery / eDisclosure applications. It was only when I caught sight of the name Recommind in one of the articles that I thought I had better read further.

Recommind is one of the sponsors of the eDisclosure Information Project, and I am familiar with the user interface which puts a friendly face on what are evidently extremely sophisticated functions. Recommind is not the only provider of intuitive front-ends to complex algorithms, and I pick on it mainly because it was the most familiar name in the first article I read about ‘Watson’. My purpose, however, is to use the Jeopardy! example to illustrate the searching power of some of the tools available to lawyers faced with a very large volumes of data. Most lawyers are familiar with keywords, because they use them every day in Google, and treat Google as a simple keyword matching tool – Google is in fact very much more sophisticated than that, but most of its users neither know nor care as long as they get an answer to their question in the first few hits.

eDiscovery obligations, however, require more than gathering the first few hits or even the first few thousand hits. They also require more than simple word matching, yet many lawyers reject (that is, do not even look at) such tools because of perceived reliance on a “black box”. The ‘Watson’ and Jeopardy! example gives us a good explanation in lay terms which may help break down these fears. (There are other fears, to do with the consequential potential loss of lawyer roles and jobs, which I will come on to in my next article).