Warning to Litigators: Beware the Software - Articles

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Posted by: William Haltom on Jan 25, 2012

Journal Issue Date: Feb 2012

Journal Name: February 2012 - Vol. 48, No. 2

Long-time readers of this column (and you know who you are) know three things about me.

First, I’m a trial lawyer. My heroes are Atticus Finch, Perry Mason, Hamilton Burger and My Cousin Vinny.

Second, I do not like litigators. They are the Elvis impersonators ofour profession. They claim to be trial lawyers, but the truth is, they never try cases. They hardly ever go to the courthouse, and when they do, they need directions. Litigators do go through the motions (and when I say motions, I mean motions) of getting ready for trial by collecting documents, taking endless depositions, holding conference calls (litigators love conference calls) and ultimately, attending mediations.

Litigators love mediations, because you never lose a mediation.

And, third, I’ve been concerned for years that trial lawyers are becoming an endangered species, as we are being slowly but surely replaced by this pathetic new group, litigators.

But while I am now cautiously optimistic about the future of trial lawyers, I am now concerned that it is litigators who may be going the way of the Jonas Brothers.

You see, some of my best friends are litigators, even though I would not want my daughter to marry one. And now, there is compelling evidence that it is the litigator, not the trial lawyer, who is going on the endangered species list.

For decades, the natural habitat for litigators has been the big city law firm. Litigators are never found on courthouse squares or in store fronts. They are, to borrow a line from the great trial lawyer, Paul Summers, tall-building lawyers who practice at big firms on big cases.

Ensconced in their skyscraper offices, literally above it all, litigators sip lattes, Bate-stamp documents, and try to make a lawsuit last longer than Jaryndice v. Jaryndice, without actually going to trial.

Every once in a while a litigator comes perilously close to a trial, but when this happens they quickly pursue alternative dispute resolution such as mediation, arbitration, prayer groups, Kumbaya sing-alongs, or the time-tested rock-paper-scissors technique.

But big-city, tall-building law firm litigation departments may be headed the way of video stores like Blockbuster and big-box book stores like Borders. The big litigation firms are downsizing, and litigators are becoming an endangered species. The reason? Simple. Litigators are being replaced by software.

You read that right, app-breath! Litigators who used to bill over 2,000 hours a year analyzing documents in big lawsuits are now being replaced by something called “E-discovery software.”

According to a recent article in The New York Times, Blackstone Discovery, a litigation support company in Palo Alto, Calif., now offers software to law firms and corporate law departments that can literally analyze and organize millions of documents at a fraction of the hourly rate of a tall-building litigator.

For example, a few months ago, Blackstone Discovery did a comprehensive and thorough analysis and organization of 1.5 million documents in a major lawsuit at a cost of less than $100,000. Had the work been done by a platoon of litigators and paralegals, the legal fees would have been well in excess of $1 million.

Another e-discovery company, Clearwell, in Silicon Valley, was recently hired by a law firm to search through a half million documents. Care to guess how long it took Clearwell’s software to analyze and sort 570,000 documents? Two days. That’s right, just 48 billable hours.

Clearwell software was then used to cull from the half million-plus documents some 3,070 documents that were relevant to a court-ordered discovery motion. That took one more day. That’s right, it took just three working days to sort through 570,000 documents and identify a little over 3,000 that were relevant.

According to the New York Times, Clearwell software uses “language analysis in a visual way of representing general contents found in documents to make it possible for a single lawyer to do work that might have once required hundreds.”

I’m not quite sure I understand this, but I think it means that a thousand litigators can be replaced by a single robo-lawyer. It’s a particularly disturbing trend given the fact that the State of Tennessee now has a total of six law schools, turning out hundreds of new lawyers each year, many of whom are saddled with unpaid student loans, and there are no documents for them to review!

Well, here’s hoping that these law students will want to be trial lawyers. There is still a demand for old-fashioned lawyers who spend time with people rather than documents and serve as their advocates and counselors. They haven’t developed an “app” for that kind of lawyer, and they never will.

Bill Haltom Bill Haltom is a partner with the Memphis firm of Thomason, Hendrix, Harvey, Johnson & Mitchell. He is past president of the Tennessee Bar Association and is a past president of the Memphis Bar Association.