For the last five and a half years, I have been what I term a legal risky data analyst. This is my nomenclature for what are otherwise known as document review attorneys. Using analog i.e., paper or digital i.e., electronic techniques, we pour over and through documents looking for privileged information or confidential information ensuring the documents contain neither before being released to the other party or parties in a case.
For the civilians reading this, privileged information is information communicated to or shared between a client and her attorney, attorney’s associates, consultants, or other third parties sharing a common interest with the client in a litigation. An attorney would rather jump off of a roof or commit Hari Kari before revealing a privileged communication. It is a violation punishable by disbarment and as mentioned above, the attorney would rather commit suicide.
The other major piece of information that the legal risky data analyst looks for is confidential information. In the case of business clients, this is data that, if released, would impair the client’s competitive position in the market that she plays in. Imagine an attorney releasing data that contained the secret recipe for an honorary Kentucky colonel’s fried chicken for the prying eyes of chicken chefs in New Orleans and Atlanta to see.
There are other pieces of information that the legal risky data analyst looks out for depending on the nature of the project she is working on. Not all the data sought will be data of a legal kind. Remember the Paycheck Protection Program? This was a program deployed during the COVID-19 pandemic, designed in part to help small businesses meet payroll. While the vast majority of American businesses provided accurate information when they applied for the loans, a few businesses lied on their applications. Document reviewers were hired in some cases to determine the accuracy of a sample of these applications in order to protect banks against liability that may have flowed from approving these loans.
Having been involved in the three types of document reviews, I have determined that the attorney’s role will grow to include more technicians as there are as many wordsmiths in the profession. We have been hearing ad nauseum about how artificial intelligence will threaten America’s overall workforce and surprisingly take out an unexpected number of workers in the knowledge industry, lawyers included.
Lawyers in some ways have always looked at themselves as data or knowledge extractors. Research is an integral part of what the lawyer does. Whether it was digging through the stacks in the library (Come now. I could not have been the only one.) or digging up cases electronically in Westlaw or LexisNexis, law students and lawyers have always come up with a word prompt and rode that string of search words down the rabbit hole to the awesome argument sweet spot. The difference today is that the lawyer is teaching the rabbit hole and there is the fear that sooner or later the lawyer won’t be needed to go chasing Alice to Wonderland.
Today, lawyers are becoming familiar with technology assisted review (TAR). According to EDRM.net, TAR is defined as:
“Technology Assisted Review (TAR) is a process of having computer software electronically classify documents based on input from expert reviewers, in an effort to expedite the organization and prioritization of the document collection. The computer classification may include broad topics pertaining to discovery responsiveness, privilege, and other designated issues. TAR (also sometimes called Computer Assisted Review, or CAR) may dramatically reduce the time and cost of reviewing ESI (electronically stored information), by reducing the amount of human review needed on documents classified as potentially non-material.”
With the application of TAR and other document review technology, I can see a further stratification between the incoming lawyer, especially into a large corporate firm and the legal strategist. The legal risky data analyst will use TAR for identifying data that opens up the client to litigation violence and the legal strategist has more time to work on a strategy that protects the client from a lawsuit or construct winning arguments should controversy find itself going to court.
And while judges rightfully do not want attorneys filing briefs with the court written by an artificial intelligence bot, a law firm partner may not have an issue with his associate using AI to draft an internal office memo as long as it cites the cases the associate and partner discussed. Besides, at that point, whether the associate attended Harvard or Gonzaga, the alleged efficiency of the technology should be driving billables per hour down, driving up profit per associate and putting smiles on client faces.
Alton Drew
4 April 2024
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Alton Drew 