New York Mag opines on Magistrate Judge Peck’s decision to require predictive coding, and how this may spell the end of drudgery of document review:
The Southern District of New York recently became the nation’s first federal court to explicitly approve the use of predictive coding, a computer-assisted document review that turns much of the legal grunt work currently done by underemployed attorneys over to the machines. Last month, U.S. Magistrate Judge Andrew J. Peck endorsed a plan by the parties in Da Silva Moore v. Publicis Groupe — a sex discrimination case filed against the global communications agency by five former employees — to use predictive coding to review more than 3 million electronic documents in order to determine whether they should be produced in discovery, the process through which parties exchange relevant information before trial.
The task of combing through mountains of emails, spreadsheets, memos and other records in the discovery process currently falls on a legion of “contract attorneys” who jump from one project to another, employed by companies like Epiq Systems. Many are recent grads who are unable to find full-time employment, or lawyers laid off during the recent recession.
Scan. Point. Click. Repeat. That’s the job. Contract attorneys are paid by the hour to sit in front of a computer and review a mind-numbing sequence of uploaded documents. There are cramped, sunless rooms in law firms throughout the city, with rows of computers piled one on top of the other, and constant uncertainty as to how long each particular stretch of employment will last. . . .
Using the technology, a senior attorney familiar with the intricacies of a specific case reviews and codes a “seed set” of documents. An algorithm then identifies properties among the manually reviewed documents to code and sort everything else. Each document is assigned a score to indicate the likelihood it’s correctly coded.
Proponents say predictive coding is not only more accurate than using human reviewers, but also more efficient. Yet many, including Jason R. Baron who previously co-chaired an influential think-tank called the Sedona Conference Working Group on Electronic Document Retention and Production, argue that human review is also necessary, at least in the short term. “I’m modestly hopeful that contract attorneys will still have a role for some time to come,” Baron says. “My glass is half full.”
There’s no escaping the fact that as predictive coding is used more widely, the technology will reduce the overall number of documents to be reviewed and the attorneys needed to review them. Judge Peck noted the technology will require human review of less than 2 percent of all documents in an average case. His stamp of approval means that the document reviewer ranks may be culled sooner rather than later.
Software is getting smarter, and computers continue to grow more powerful. What we see now is only the beginning of a process by which the routine elements of legal work — and frankly speaking, that is where the bulk of the jobs have always been — can and will be automated. Not all young lawyers will be doomed. There will be some smart, entrepeneurial kids who figure out how all this computing power can allow a small, lightly capitalized firm to deliver high quality services at a breathtakingly low cost to selected clients. Those kids will do well.
Others will benefit from greater demand. Legal services are likely to get cheaper: there is a lawyer glut that is likely to grow, and the increasing capabilities of computers in the legal field mean that the amount of available legal brainpower will explode. Cheaper legal services mean that more people and firms will use the legal system and legal expertise in various ways: the lawyers and firms who figure out how to ride this wave will also do well.
Brilliant and creative lawyers will continue to do well. So will the marketers, the deal makers and the connectors. But law isn’t going to be the kind of safety play ticket to the upper middle class that it used to be.