TAR Wars – The Farce Awakens
Drew Lewis, Sr. Vice President of Operations, Paragon
Unless you have been living under a rock, you know there is a new Star Wars movie out in theaters. As I am sure my friend Josh Gilliland will have a recap of the legal implications of the First Order or whether or not the Rule of Perpetuities applies in the Outer Rim, I will leave that type of analysis to him.
But a conversation came up the other day about the legion of TAR (technology assisted review) tools in the market. It made me wonder what these TAR Wars have done for our industry or whether these are just marketing gimmicks that are confusing lawyers.
A long time ago in a galaxy far, far away…
Okay, so it was really just a few years ago and it was in the Southern District of New York. But the eDiscovery world was forever changed once Magistrate Judge Peck, writing in the now famous (sort of) Da Silva Moore case, proclaimed that parties could in fact use predictive coding, which at the time was a relatively unknown process (unknown to our industry – other industries have understood search assistance through the use of algorithms for some time). Once this happened, the litigation technology space was never quite the same. This phantom menace would lurk in the recesses of the minds of litigators for some time before achieving anything close to a mainstream place in our collective conscious.
Begun, the TAR Wars have…
In the early days following Da Silva Moore we saw competing versions of a Predictive Coding for Dummies guide. There were scuffles between software vendors as everyone jockeyed for the pole position in the race to grab the lion’s share of the market. And, a common tactic was the triumvirate of fear, uncertainty and doubt (FUD for the acronym obsessed). Sadly though the tactic was powerful. During my time at Recommind I heard many of these traps and pitfalls – some from prospective buyers, but many more from industry pundits. Concerns over recall and precision – terms that 10 years ago had little if any import to the legal community – suddenly arose as we began to question the efficacy of document review teams.
But most recently, we have seen the emergence of “TAR 2.0” and “Predictive Coding 3.0” (these are particularly confusing, though it does make me wonder when TAR ’95 or Predictive Coding Millennium Edition will hit the market). But again, this feels like more of the same marketing that dominated the early post-Da Silva Moore world. I have read many of the articles and blogs around these topics (admittedly I haven’t read them all as I have a full time job!), and have shared a few with some of the lawyers we work with frequently. These lawyers tend to be specialized litigation attorneys, often operating in boutique firms. In other words, these are lawyers living outside “the bubble.” I started to inquire about their thoughts on the TAR wars?
What have these TAR Wars actually accomplished?
Now before I share their thoughts, we need to understand something: these lawyers are frequently engaged in complex litigation, so the reader cannot dismiss them as Luddites or some other pejorative term. These are lawyers who are working on complex matters, with corporate clients that hire them because of their skill in the art of litigation. They aren’t likely to read blogs that dissect advanced technologies, they didn’t read the TREC study, and they don’t know (or care) what the Gartner Magic Quadrant is. But these lawyers are similar to bubble dwellers in one critical way: they are overrun with data and need help in understanding the data.
For those who have ventured into the murky waters of vendor blogs, hollow labels, and byzantine complexity, they have each shared a similar refrain with me: “this all seems like marketing talk – how do I find what I need to find and get back to the merits of the case.” For these lawyers, the TAR wars – borne from the idea that my organic, non GMO French vanilla ice cream is better than your generic vanilla ice cream – have created confusion. These lawyers often feel like since they don’t employ data scientists or people with advanced degrees in computer science they will stick to their tried and true methods of “the old fashioned way.”
Isn’t it possible that this confusion is what leads to woefully low levels of widespread adoption and a possible cause of the consumption gap in legal technology? After all, if the technology does what it is marketed to do, then wouldn’t everyone line up to use it? It seems that the unintended consequence of marketing machines run amuck is a level of confusion and analysis paralysis that leaves many standing still and just “waiting for the right case” to use the technology.
It is easy to dismiss these lawyers as incompetent or technological Neanderthals. But they’re not. They are just potential consumers that are underserved by a market that focuses primarily on BigLaw and Fortune 500.
A New Hope
The problem with all of this one-upmanship (or at least one of the more pronounced problems) is that it leaves lawyers (who don’t clamor over the latest issue of LTN magazine) uncertain about what the technology actually does for them. It leaves many lawyers wrongly assuming that unless you have a multi-terabyte case, there is no value from technology assisted review?
Since joining Paragon in October, 2014, I have stressed to our current and future clients to “start with the end in mind” when it comes to their document review strategies. Why are they choosing one review methodology over another? What is their real purpose in the review process? Do they simply need to cull documents for a multi-tier document review and the primary focus is on defensibility? Do you anticipate receiving a large production from opposing counsel and will need to sort through a data dump to find the handful of documents that will make or break the case? How you answer these questions will help you understand which technologies and workflows you should use.
And generally speaking – there is not a one-size-fits-all approach.
My hope is that attorneys will engage in a dialogue with their service providers or in-house litigation support resources, and think about what they are trying to accomplish before going headlong into the void and risking disaster. The fact of the matter is that being a great lawyer has no impact on your ability to understand terabytes of data. Technology should be used in conjunction with sound workflows and knowledgeable subject matter experts. And eventually, when more lawyers begin with the end in mind, and utilize review techniques that meet those goals, we can finally end these TAR wars once and for all… maybe.