E-Discovery Costs: The annual litigation survey published by Fulbright & Jaworski reports that nearly 40 percent of the respondents expressed the need to increase spending on electronic discovery. This concerns them, given the already high cost. As one possible solution, a few firms are partnering with e-discovery vendors because they believe it is cost-effective for both the client and the firm.Keep that in mind. Next, I'd like to point out this tidbit from a recent article on legal research, entitled "Legal research moves from the print library to expensive digital databases:"
This same generation is now leading the legal industry's leap to the Web -- a revolution with major implications for clients, bringing more firepower to those who can afford it and more headaches to those who can't."Today, virtually 100 percent of practitioners use online research," said David Dilenschneider, who oversees content development for LexisNexis. "You really cannot practice in books these days. It isn't doable because of the risk of missing information."
LexisNexis and Westlaw provide massive databases of statutes and judicial opinions, plus proprietary goodies like analyses and explanations.
It's that proprietary content, along with advanced search algorithms and other fancy tools, that make the two services the most effective in the industry -- and the most expensive.
First, the "proprietary content" is available for free in brick-and-mortar libraries if you already know directly where to look, and you can find it in about 30 seconds. The advantage of the online services is mostly speed and volume, being able to search thousands of cases and documents at once for key phrases. The most valuable "proprietary" services are probably the ones that tell you if something has been overruled or not, and maybe the notifications on new cases in a particular area, but neither of these is impossible to the layman without the services.
Second, it's a really odd time to complain about the expense of Lexis and Westlaw. Why? Well, because both are facing significant competition from free sources and have had to take measures to keep traffic up. Westlaw has introduced WestlawNext, which is dramatically cheaper and provides more services, not necessarily because old Westlaw was bad, but rather because they feared losing customers to free sources. Lexis decided to start a free service, called LexisOne, that's basically a large archive of caselaw.
Contrary to the implication of both of these articles, technology is a cost-saver over the long term. The cost "raises" in both legal research and in discovery is because the technology was fundamentally abused, or used not as a tool of efficiency.
In legal research, both Westlaw and Lexis used the technology more or less as an excuse to jack prices. While sets of books under the old system of expansive law libraries were not cheap, it was a one-time expense to purchase the book and there was something of a secondary market that could exist for the volumes (from law offices closing or law libraries updating their collections) and for those resourceful enough to go to a law library, there was very little access cost. The existence of the internet changed that by letting Westlaw and Lexis charge for mere access to the materials and not just ownership.
Of course with the internet and what are, ultimately, readily-available materials for the resourceful, that set-up can't last, and it didn't, and that's why both services are desperate to retain customers now in a dwindling marketplace.
The same basic idea applies to discovery abuses. I know less about complex litigation than legal research, but it seems to me that the advent of the internet did not make discovery more expensive aside from broadening what discovery could include. The most obvious example of this, to me, is e-mail. Previously, 99% of what is sent over e-mail would have been phone conversations without record or would have never been sent or would have been used and discarded. Now there's terabytes of data storage of useless shit that plaintiffs want to get at for that microscopically small fraction that may be useful. That's not technology making a process more expensive, it's the people using it changing their behavior.
In theory, computerized technology should lower costs and it should be fairly straightforward if basic ethical principles are plainly laid out, but it hasn't immediately been readily adopted or accurately priced in the legal profession, and there seem to be no shortage of seminars or symposiums or verbal sewage about the implications of technology, as if the legal profession is run by antediluvian buffoons.
Because largely, it seems, it is. From the first article I cited:
Social Media: Issues are arising. Clients are increasingly asking for counsel on employees' use, and the management, of social media. Firms are now recognizing the need to develop electronic and social media policies for themselves.There are ethics considerations. There are challenges for lawyers in maintaining the confidentiality of client information. And there are many issues with respect to the use of social media in litigation. One report may have summed it all up: "The law has significantly lagged behind social networking."Really, there aren't "many issues" unless you start making them up. How hard is it to tell people not to post something on facebook about a client? Or to develop a social media policy? It's really no different than telling employees not to gossip about clients at the coffeehouse, is it? Basic ethical principles applied to a new setting; this is not new.
And who is "the law?" It isn't students, ground-level working attorneys, or the like. It's the regulators, the wizened old men who like to spout platitudes with no substance, and, ultimately, the bar associations run by "seasoned veterans." Together, they implant a very conservative, retrogressive way of doing business, where new technologies are hostile because they all bring major ethical crises (real or fictional) and concocted expenses.
If the legal profession were really concerned with justice, it would welcome new technologies and the cost-savings associated with them. Furthermore, you virtually never hear any of the legal talking heads suggest that technology make actually improve ethics considerations even though, in some cases, it becomes easier to comply with ethical mandates as technology advances.
But the legal profession really isn't concerned with access to justice or cost savings or ethics; it, like every other profession, is concerned with keeping the kings of the hill at its profitable apex. Any tectonic shift may shake them from their place, and it's better to keep litigation costs artificially high. Because those in the business have an incentive to keep the status quo, the market was slow to respond to the need for cheaper research tools and cheaper e-discovery mechanisms.
This system also snakes its way into law school corridors. Properly using technology could result in major cost savings in legal education. For example, textbooks are now archaic fossils no longer necessary; all the materials needed for a legal education can be found by plugging into the internet and bringing a moderately-priced laptop to class. And yet, the thick >$100 volumes persist, a tremendous waste of resources, time, and energy. Worse, some people have the audacity to suggest that technological advances are making a legal education more expensive. That's out-and-out bullshit and a lousy justification for the rampant tuition increases of the last 15 years.
While it's not the biggest of the profession's problems, the fact that crusty Luddites seem to disproportionately work as lawyers compared to other professions seems to cause more problems than it solves.
This is a great post - nicely done!
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