When I entered the profession nearly 20 years ago if you’d have told me that you could run a document-heavy commercial dispute to trial without using a printer in anger, I would have looked at you with scepticism, but I would have been inspired. My colleagues, who had by that time been in practice for 20 years, would have look at you as if you had just arrived from another planet.
Therein lies the problem with the legal sector’s slowness to adopt technology. Experienced practitioners have tried and tested approaches to resolving disputes that work, and introducing new technology carries with it risk and uncertainty. For every frontier, however, that has ever been conquered there was always a pioneer who pushed the boundaries. Thankfully, a handful of technologists and practitioners have pushed the boundaries and we are now seeing the adoption of certain technologies, once seen as trailblazing, as the norm.
The Difficulties in Datamining Disputes
The last decade has seen an acceleration in disputes tech but for some the profession just hasn’t quite yet been ready. In October 2020 Artificial Lawyer[1] reported that CourtQuant, the litigation prediction pioneer, had ceased to trade. Co-founder Jozef Maruscak cited the conservative nature of the legal sector as one of the reasons for its failure.
CourtQuant was not alone in its attempts to harness big data and AI to predict the outcome of litigation. Its claims to predict the outcome of litigation were perhaps difficult for most lawyers or their clients to put their trust in. Other providers of litigation analytics such as Gavelytics and Solomonics take a more conservative approach to the claims they make. Both combine big data analytics with human input. They provide a dashboard view on both quantitative and qualitative data arising from previous court decisions to supplement the nuanced advice provided by practitioners. Practitioners can make use of statistical data when choosing, for example, appropriate Counsel for a case or how to deploy certain arguments before certain judges. The statistical information is supported by the ability of lawyers to drill down into the qualitative material from which they can substitute their own judgment. Neither tools currently can predict the outcome of a dispute, but they do give lawyers a better chance of doing so.
The prospect of AI-based advice and letters of claim is, however, not entirely science fiction. Canadian based MyOpenCourt uses AI to analyse authorities and predict the outcome of employment claims. It provides users with an initial advice on merits and a draft letter of claim which one of its panel law firms will review and tailor to a Claimant’s case. The technology has wider utility, particular where disputes arise out of industry-standard form contracts such as the ISDA Master agreement. It still relies, however, on an overlay of human intervention.
Changing Processes Leads to Changing Practise
One area within dispute resolution in which technology has made the greatest impact is disclosure. Initially, e-disclosure platforms just provided the technology upon which large sets of documents could be manually reviewed. They now do much more including providing a wide range of big data analysis dashboards such as OpenText’s Axcelerate software. The importance of these tools is recognised by litigators as the Disclosure Pilot looks set to stay – albeit with modification. Their utility in investigations and arbitration is equally obvious. With an initial core set of custodian data, it is much easier to now identify other custodians who may be relevant by data mapping interaction between data custodians making it easier to focus on what is relevant and dispatch attempts to go on a “fishing expedition” by the opponents.
Document production and case preparation in the last year has seen perhaps the greatest seismic shift thanks to the pandemic, which has bought about – through necessity – a realisation that practitioners and judges can, and should, adapt to working from electronic bundles. Encouraging experienced practitioners to ditch paper bundles for electronic bundles was an uphill battle until the pandemic hit but now it has become the norm. To make it work, however, firms have had to quickly adopt bundling and case preparation software.
Opus 2 has become a staple product for many larger firms, but new cloud-based provider Hyperlaw looks set to offer bundling and case preparation at a relatively low cost per user making it accessible to the wider market. By working with digital case preparation software from the outset of a claim it significantly reduces the time spent preparing case papers for various stakeholders throughout a dispute; whether that be providing initial disclosure, instructions to Counsel, instructions to an expert, bundles for interim hearings, and trial bundles. Once the documents are in the system, production time and the associated costs are greatly reduced. One thing is certain, gone are the days of seeing barristers’ clerks lugging sack trolleys of lever arch files down Fleet Street.
The Digital Changes to the Business of Law
The introduction of opt-out class actions[2] and proliferation of the representative action for common causes of action such as data breach[3] has sparked a group litigation gold rush in England and Wales. Other similar actions afoot or likely to be pursued shortly include claims by over 10,000 Uber Drivers following the Supreme Court decision[4] in a decision that addressed their “worker status” and claims by VW and Mercedes vehicle owners arising out of the so-called “defeat device.” These actions bring with them administrative challenges that practitioners have historically struggled to grapple with, namely managing large volumes of Claimants or prospective Claimants in a cost-effective manner.
Disputed.io’s Casefunnel software provides an alternative solution to engaging class action administration firms to service consumer demand. Allowing law firms and their claim marketeers to funnel Claimants directly into the software Casefunnel allows lawyers to capture important case data and documentary evidence early, in a manner that appeals particularly to consumers using smartphones. Where API’s are available, such as vehicle check data via the DVLA, law firm can pre-qualify Claimants in an instant. The system also tackles client onboarding signing up Claimants to funding and engagement documents as well as dealing with the law firm’s KYC obligations.
The funding of claims is also going digital. Recently launched online marketplace Finlegal provides an online marketplace for initial market appraisal and the funding (litigation funding and ATE insurance) of claims through a single online application that can be analysed by multiple funders. The unique online application process seeks to break down the data in a funding request to enable funders and insurers to better triage applications to their funding criteria.
The Revolution will be Digitised
We will continue to see an increase in the intersection of technology and legal practice. Technology is unlikely to replace the lawyer anytime soon, but it will increasingly support the lawyer in their practice, cutting out low level quantitative and qualitative analysis and reducing administrative aspects of the work via automation. It provides a real opportunity to add value to clients by reducing costs and speeding up service. It is also fundamental to increasing access to justice by making more cases and causes of action viable. It is unlikely, however, to spark a revolution and we will most likely see a continuation of the existing evolution of its integration with our practices.
This blog was written by Luke Tucker Harrison, co-founder of Keidan Harrison, a member of LIDW
[1] https://www.artificiallawyer.com/2020/10/07/litigation-prediction-pioneer-courtquant-to-close/
[2] Which appear to have the support of the Supreme Court see Mastercard Incorporated and others v Walter Hugh Merricks CBE [2020] UKSC 51
[3] See Richard Lloyd v Google LLC [2019] EWCA Civ 1599
[4] Uber BV and others v Aslam and others [2021] UKSC 5