A short interview with Professor Richard Susskind on the Legal IT web site gives a packed 12 minutes or so which is well worth listening to at the beginning of the year. E-Disclosure is covered along with iPads, social media, the cloud and outsourcing as areas in which the gap between those who look forward and those who drag their heels will differentiate one firm from another in business practices, in the eyes of the clients, and in profitablility.
Before you dismiss what Richard says as fanciful, you may care to think back to his record as a predictor of legal business practice – how, for example, everyone laughed when he said that firms would communicate with each other and with clients by e-mail, or would publish legal information for free on their websites.
His four main predictions are:
1. There will be wider take-up of the iPad and other tablets, particularly when Word and PowerPoint become available on them. Lawyers are already using them for many daily activities both at home and at work, as are their clients, and mainstream acceptance cannot be stopped.
2. Many firms will move their data and processing to the cloud. Confidentiality concerns are being addressed and, in any event, it is probable that a first-rate outsource provider will offer better security than many firms can provide for themselves. This applies to litigation as much as to other things – much litigation data is either price-sensitive or very personal; how many firms can say in a post-WikiLeaks world that they are truly confident of their own security?
3. There will be an increase in outsourcing, with whole systems, not merely data, passed to third-party providers. This is not necessarily bad news for IT staff who may find more interesting challenges (and less aggravation) if they transfer their employment out of law firms.
4. There will be an uptake in the use of social media as firms make use of LinkedIn, FaceBook and Twitter for legal purposes, as many companies – the clients – are already doing, to tell the world what they are doing, planning or thinking. This is so predictable a development that firms must get policies in place in anticipation of it. Without them they will either get left behind by more adventurous firms or will embark on the use of social media without thinking through either the risks or social media’s place in their wider public-facing plans.
What Richard Susskind says about litigation is consistent with what I have said during the past year. It is no bad thing to be running behind the US, if that is what the UK is doing. Search can be a massive undertaking and, crucially, is a front-loaded cost. More of the work is being done by good third-party providers whose software is increasingly exciting, with much of the hands-on work being done in low-cost jurisdictions. The challenge will not, Richard Susskind thinks, be on the same scale as in the US, mainly because of the stronger emphasis in the UK on active case management.
If my views differ from Richard Susskind’s in this latter aspect, it is because I am not particularly optimistic that enough judges outside the specialist courts will get their minds around what is involved. It is easy to regard it simply as a technology problem and to assume that it is, in consequence, too difficult to comprehend; the technology providers’ understandable emphasis on their exciting technology may, paradoxically, obscure its place in a proper application of the rules. Properly applied, the e-disclosure software (and particularly predictive coding) is a comprehensible and transparent way of fulfilling the objectives in the rules – that overriding objective of proportionality in particular.
The clients will drive matters here as in the other things which Richard discusses. Expect to see more clients questioning whether it is really necessary to disclose so much, and expect the more go-ahead lawyers – the same ones, perhaps as are using iPads, considering the value of social media, and investigating the cloud and outsourcing – to be thinking through how the use of technology in e-disclosure may benefit themselves as well as their clients.