Technology Has Enabled The Evolution Of The Disputes Lawyers Practice But Will It Spark A Revolution? – Technology – UK – Mondaq News Alerts

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When I entered the profession nearly 20 years ago if you'dhave told me that you could run a document-heavy commercial disputeto trial without using a printer in anger, I would have looked atyou with scepticism, but I would have been inspired. My colleagues,who had by that time been in practice for 20 years, would have lookat you as if you had just arrived from another planet.

Therein lies the problem with the legal sector's slownessto adopt technology. Experienced practitioners have tried andtested approaches to resolving disputes that work, and introducingnew technology carries with it risk and uncertainty. For everyfrontier, however, that has ever been conquered there was always apioneer who pushed the boundaries. Thankfully, a handful oftechnologists and practitioners have pushed the boundaries and weare now seeing the adoption of certain technologies, once seen astrailblazing, as the norm.

The last decade has seen an acceleration in disputes tech butfor some the profession just hasn't quite yet been ready. InOctober 2020 Artificial Lawyer1reported thatCourtQuant, the litigation prediction pioneer, had ceased to trade.Co-founder Jozef Maruscak cited the conservative nature of thelegal sector as one of the reasons for its failure.

CourtQuant was not alone in its attempts to harness big data andAI to predict the outcome of litigation. Its claims to predict theoutcome of litigation were perhaps difficult for most lawyers ortheir clients to put their trust in. Other providers of litigationanalytics such as Gavelytics and Solomonics take a moreconservative approach to the claims they make. Both combine bigdata analytics with human input. They provide a dashboard view onboth quantitative and qualitative data arising from previous courtdecisions to supplement the nuanced advice provided bypractitioners. Practitioners can make use of statistical data whenchoosing, for example, appropriate Counsel for a case or how todeploy certain arguments before certain judges. The statisticalinformation is supported by the ability of lawyers to drill downinto the qualitative material from which they can substitute theirown judgment. Neither tools currently can predict the outcome of adispute, 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 MyOpenCourtuses AI to analyse authorities and predict the outcome ofemployment claims. It provides users with an initial advice onmerits and a draft letter of claim which one of its panel law firmswill review and tailor to a Claimant's case. The technologyhas wider utility, particular where disputes arise out ofindustry-standard form contracts such as the ISDA Master agreement.It still relies, however, on an overlay of human intervention.

One area within dispute resolution in which technology has madethe greatest impact is disclosure. Initially, e-disclosureplatforms just provided the technology upon which large sets ofdocuments could be manually reviewed. They now do much moreincluding providing a wide range of big data analysis dashboardssuch as OpenText's Axcelerate software. The importance ofthese tools is recognised by litigators as the Disclosure Pilotlooks set to stay albeit with modification. Their utilityin investigations and arbitration is equally obvious. With aninitial core set of custodian data, it is much easier to nowidentify other custodians who may be relevant by data mappinginteraction between data custodians making it easier to focus onwhat is relevant and dispatch attempts to go on a fishingexpedition by the opponents.

Document production and case preparation in the last year hasseen perhaps the greatest seismic shift thanks to the pandemic,which has bought about through necessity arealisation that practitioners and judges can, and should, adapt toworking from electronic bundles. Encouraging experiencedpractitioners to ditch paper bundles for electronic bundles was anuphill battle until the pandemic hit but now it has become thenorm. To make it work, however, firms have had to quickly adoptbundling and case preparation software.

Opus 2 has become a staple product for many larger firms, butnew cloud-based provider Hyperlaw looks set to offer bundling andcase preparation at a relatively low cost per user making itaccessible to the wider market. By working with digital casepreparation software from the outset of a claim it significantlyreduces the time spent preparing case papers for variousstakeholders throughout a dispute; whether that be providinginitial disclosure, instructions to Counsel, instructions to anexpert, bundles for interim hearings, and trial bundles. Once thedocuments are in the system, production time and the associatedcosts are greatly reduced. One thing is certain, gone are the daysof seeing barristers' clerks lugging sack trolleys of leverarch files down Fleet Street.

The introduction of opt-out class actions2andproliferation of the representative action for common causes ofaction such as data breach3has sparked a grouplitigation gold rush in England and Wales. Other similar actionsafoot or likely to be pursued shortly include claims by over 10,000Uber Drivers following the Supreme Courtdecision4in a decision that addressed theirworker status and claims by VW and Mercedes vehicleowners arising out of the so-called defeat device.These actions bring with them administrative challenges thatpractitioners have historically struggled to grapple with, namelymanaging large volumes of Claimants or prospective Claimants in acost-effective manner.

Disputed.io's Casefunnel software provides an alternativesolution to engaging class action administration firms to serviceconsumer demand. Allowing law firms and their claim marketeers tofunnel Claimants directly into the software Casefunnel allowslawyers to capture important case data and documentary evidenceearly, in a manner that appeals particularly to consumers usingsmartphones. Where API's are available, such as vehicle checkdata via the DVLA, law firm can pre-qualify Claimants in aninstant. The system also tackles client onboarding signing upClaimants to funding and engagement documents as well as dealingwith the law firm's KYC obligations.

The funding of claims is also going digital. Recently launchedonline marketplace Finlegal provides an online marketplace forinitial market appraisal and the funding (litigation funding andATE insurance) of claims through a single online application thatcan be analysed by multiple funders. The unique online applicationprocess seeks to break down the data in a funding request to enablefunders and insurers to better triage applications to their fundingcriteria.

We will continue to see an increase in the intersection oftechnology and legal practice. Technology is unlikely to replacethe lawyer anytime soon, but it will increasingly support thelawyer in their practice, cutting out low level quantitative andqualitative analysis and reducing administrative aspects of thework via automation. It provides a real opportunity to add value toclients by reducing costs and speeding up service. It is alsofundamental to increasing access to justice by making more casesand causes of action viable. It is unlikely, however, to spark arevolution and we will most likely see a continuation of theexisting evolution of its integration with our practices.

This article was first published on the London InternationalDisputes Week website on 28th April 2021.

Footnotes

1https://www.artificiallawyer.com/2020/10/07/litigation-prediction-pioneer-courtquant-to-close/

2 Which appear to have the support of the SupremeCourt see Mastercard Incorporated and others v Walter Hugh MerricksCBE [2020] UKSC 51

3 See Richard Lloyd v Google LLC [2019] EWCA Civ1599

4 Uber BV and others v Aslam and others [2021] UKSC5

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Technology Has Enabled The Evolution Of The Disputes Lawyers Practice But Will It Spark A Revolution? - Technology - UK - Mondaq News Alerts