The fundamentals of litigation practice have remained the same for decades—attorneys gather facts, assemble a narrative and advocate that narrative to a tribunal. What has changed, however, is the media on which we find the facts to support our cases. Two decades ago, almost all information was supported by paper documents. Electronic data was part, but not the focus, of discovery efforts. Today, the inverse is true: Our clients’ businesses are based almost exclusively on electronic data. And because it requires less “storage” space, electronic data is preserved at a much higher rate than paper documents. As the media of discovery has changed, we must adapt and embrace new discovery approaches, methods and tools.
Predictive coding is one such tool, and it is quickly making a name for itself by promising more effective—cheaper, faster, more precise and more consistent—results than manual document review. Proponents of advanced review technology argue that predictive coding is extremely effective at managing the ever-increasing breadth and cost of electronic discovery. But, as predictive coding continues to quickly transform the landscape of large-scale discovery, our experience has been that some in-house counsel (as well as some veteran litigators) are still reluctant to make the leap. Here are five reasons why we think this reluctance exists and our commentary on how you can better understand, trust and employ this predictive coding technology.