The Automation and Outsourcing of the American Lawyer

Most industries in the U.S. have, at some point or another, faced some form of outsourcing or automation, resulting in a reduced need for human workers. Because of the nature of legal work, however, in the past attorneys have largely been immune to these forces, and their jobs have been secure from computers and foreigners alike.

This is all changing. The use of computerized discovery and the outsourcing of legal tasks to foreign lawyers are both rapidly becoming a viable option for a broad range of services which were, formerly, only conducted by U.S.-barred attorneys. It remains an open question at this point which will have the bigger impact on the U.S. legal market: outsourcing or automation?

I was about to self-mockingly title this post “The Scylla and Charybdis of the Contract Attorney,” because I am convinced that “Scylla and Charybdis” may possibly be the most aggravating and overused cliche out there, except I found the phrase was too annoying to even use ironically. Still, the phrase may have been apt here — it is hard to think of any niche left for U.S. contract attorneys to inhabit that could not eventually either be computerized or done cheaper abroad.

A recent study looked at the efficacy of computerized document review as compared with the traditional method of examining voluminous stacks of paper for responsiveness: lots and lots of attorney man-hours spent on doc review. The article, Document Categorization in Legal Electronic Discovery:
Computer Classification vs. Manual Review
[PDF], involved comparing two teams of human re-reviewers and two e-discovery services. (With a summary on the findings about computer assisted doc review here.)

The study’s conclusion?

On every measure, the performance of the two computer systems was at least as accurate (measured against the original review) as that of a human re-review.

It’s obvious why development of reliable e-discovery is such an intriguing possibility — in major cases, the costs of doc review alone can be astronomical, so any computer program that can cut down on the number of attorneys required would result in major savings.

The documents used in the study were collected in response to a “Second Request” concerning Verizon’s acquisition of MCI. The documents were collected from 83 employees in 10 US states. Together they consisted of 1.3 terabytes of electronic files in the form of 2,319,346 documents. The collection consisted of about 1.5 million email messages, 300,000 loose files, and 600,000 scanned documents. After eliminating duplicates, 1,600,047 items were submitted for review. The attorneys spent about four months, seven days a week, and 16 hours per day on the review at a total cost of $13,598,872.61 or about $8.50 per document. After review, a total of 176,440 items were produced to the Justice Department.

I was mostly struck, however, by just how inconsistent human reviewers are when it comes to doc review:

The level of agreement among human reviewers is not strikingly high.The two re-review teams agreed with the original review on about 76% and 72% of the documents. They agreed with one another on about 70% of the documents with corresponding kappa values in the low to fair range. Although low, these levels are realistic.

The computer methods had comparable results, finding agreement with the original review’s assessment 83.2% of the time for one system and 83.6% for the other.

FRCP Rule 26(g) requires only that discovery processes be reasonable and not unduly burdensome. Obviously what exactly qualifies as “reasonable” for discovery responses is a less-than-precise standard, but presumably the way we have been doing it for the past few decades qualifies. By that standard, then, e-discovery would seem to qualify as well.

Although we are still a long ways from automating legal services more complex than discovery tasks, legal services of moderate sophistication can and have been outsourced to attorneys in foreign nations. Although for a while now the legal industry has outsourced work similar in character to the tasks that computer systems are now being designed to do. Pangaea3, a legal outsourcing company based in India, is leading the charge for outsourced legal research and contract drafting:

[Attorney for Pangaea3] Ms Langstieh’s tasks include policing the misuse of clients’ trademarks on the internet and researching liabilities in different jurisdictions. She has been at Pangea3 for less than two years but has already travelled to Europe to meet clients and regularly speaks to customers in the West as part of her work.

This post by Timothy Corcoran concisely summarizes why outsourcing to India, a concept would seem utterly mundane to most businesses in America today, feels like a revolution in the legal industry:

Why such a furor? Simply because the work being outsourced isn’t the widely proclaimed mundane work of staff accountants, secretaries, mail room clerks and marketers, this is real legal work, the work of highly trained lawyers, that is being taken from top global law firms and moved to a heretofore unknown company with salaried lawyers! “What is the world coming to?!” is undoubtedly the cry in BigLaw law firm boardrooms everywhere. What, indeed.