25% of the respondents to this poll indicated that lawyers should be famailiar with Predictive Coding to utilize it during the eDiscovery and document coding process. 62% of the respondents to this poll indicated that lawyers should be somewhat familiar with Predictive Coding to utilize it during the eDiscovery and document coding process. And, 12% of the respondents to this poll indicated that lawyers should not have to be familiar with Predictive Coding to utilize it during the eDiscovery and document coding process.
Given the fact that Judge Peck's decision is still being digested and there continues to be debate among the "technical experts" within the industry about the vetting process for Predictive Coding, many may not think that it is way too early to start worrying about whether or not lawyers understand the technical nuances of this new technology. However, I am not sure that the ABA Commission on Ethics would agree that "it is not yet time" as they are already addressing the question of what level of competence lawyers must have in applying IT concepts to the practice of law.
The technology of eDiscovery in general has leapfrogged any technology issues that most litigators have had to understand in the past. And, Predictive Coding and all of it's cousins in computer assisted eDiscovery and search, may in fact have leapfrogged the eDiscovery technology of just 2-3 years ago.
I am sure that the courts and the industry will fully vett Predictive Coding and develope the appropriate best practice for when and how it should be used. And, I am sure that ABA will figure out what level of competence lawyers must have in applying Predictive Coding. I just have to wonder if the results of this process isn't a tipping point for a changing of the guard within the legal ranks?
And, since this whole "thing" is about providing equal access to the judicial system and adequate representation, let's hope they all get it right. Certification on Predictive Coding for lawyers or not.
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The guard has already changed within the field with recognition of eDiscovery certifications such as the highly sophisticated exam provided by OLP. That exam should include Predictive Coding at some point. It will be interesting to see where this goes.
ReplyDeleteI agree 100% and I have no doubt that there is pressure and momentum from many quarters within the industry to move in that direction. At some point, very similar to the healhcare industry, I envision a legal world in which corporations and individuals choose lawyers based on a combination of their legal expertise (e.g. family law or Securities fraud) and their ceretified technical expertise (e.g. Predictive Coding or Social Media collections and processing). I wouldn't allow a Dr. to perform heart surgery just because they had a medical license but no applicable certifications or expertise. And, the legal community shouldn't allow a lawyer to manage a case in which a specific technical expertise (e.g. Predictive Coding) is required without being certified.
DeleteIs "Predictive Coding" really a technical expertise? I think there is more nuance involved.
ReplyDeletePredictive Coding or Computer Assisted Review or even Computer Assisted eDiscovery and Information Governance (I think that using computer learning for Predictive Coding is the tip of the iceberg) are obviously technologies. And, there are, as you point out, nuances involved in the use of those technologies. However, the point of my article is that lawyers should be required to pass a test and get a "drivers licence" to use them (nuances and all). The FRCP and the ABA have placed a heavy burden on litigators to be the captains of their cases and in today's world of Electronically Stored Information (ESI) that has to include the technologies that are bing utilized.
ReplyDelete