Q&A: Technology and the future of dispute resolution

December 2020  |  SPECIAL REPORT: INTERNATIONAL DISPUTE RESOLUTION

Financier Worldwide Magazine

December 2020 Issue

FW discusses technology and the future of dispute resolution with Jon Chan, Alex Semertzides and Tom Jackson at FTI Consulting LLP, and Damian Taylor and Robert Worthington at Slaughter and May.

FW: Reflecting on recent months, how would you characterise the changes to dispute resolution processes that have been brought on by necessity? To what extent have fundamental approaches changed, in some cases perhaps permanently?

Taylor: Many court hearings have shifted to a remote setting, which would have been unthinkable prior to the pandemic. It works surprisingly well, though, and in some cases has been more efficient than in-person. When you are in the courtroom, a lot of time is wasted on travel to and from court, waiting for proceedings to start and during breaks. But in a remote setting, down time can more easily be used to speak to a client or address pressing work. This could lead to a permanent shift of simple disputes to an online-only format. Remote hearings may have an even bigger impact on the cost and convenience of arbitrations, since these matters often involve global parties and tribunals. I participated in a virtual arbitration recently, with more than 10 people who would have needed to travel internationally if it was in-person. Experiences such as this and standards like the Seoul Protocol on Video Conferencing in International Arbitration are likely to assist a more permanent move to virtual hearings where appropriate, even after the pandemic.

Worthington: Courts will be increasingly pressured to move small hearings online permanently. It is so much more efficient and cost effective for lawyers and the court system. From an e-discovery perspective, we have not seen much change in the way of technology this year, with one exception. The landscape of discoverable data is shifting significantly. With people working from home, email traffic is increasing, alongside massive surges in use of Zoom, Microsoft Teams and other similar platforms. All of this will pose issues for discovery. E-discovery professionals need to become attuned to that in the future and prepare for the new workflows and technologies that will be needed to navigate data from emerging sources.

Chan: Project management has definitely been one notable area of change. Project teams are looking for ways to emulate the in-office experience and replace some of the collaboration and productivity that has been lost. On many larger projects, we have been holding daily virtual standups where we check-in on tasks and critical work, and we have adopted an integrated project management system to support that format. This system includes central lists and logs of activities and questions – so important bits that would normally be addressed in real-time in an office setting can be tracked and addressed during the next daily project meeting. This will be a positive permanent change to keep project teams focused and organised. Even as offices begin to reopen, many people will continue working remotely, so even when we return to some element of ‘normality’ we will still require integrated project management systems to cater to those who choose or need to continue working remotely.

Semertzides: The challenging economic climate of this year has forced many organisations to more closely manage their legal budgets and reduce spend where possible. Discovery is an area many are holding under the magnifying glass to identify opportunities for cost reduction. The most effective way to do this, without compromising quality, is to leverage advanced technologies and workflows that can streamline end-to-end processes and adapt to pressures including growing data volumes. Fortunately, recent advances in machine learning, natural language processing and data analytics mean lawyers and practitioners have more sophisticated tools at their disposal than ever before. For example, interactive data visualisations that can instantly surface patterns and help inform rapid decisions on large data sets, machine translation technology that can help cut down on costly translation services and predictive coding that can help streamline review. Ultimately, technology will remain a critical solution for reducing e-discovery budgets and overall legal spend, and as advanced technologies become more widespread, organisations and legal teams will gain increasing comfort with utilising them.

Jackson: On the e-discovery front, we have seen change on the far left and the far right of the electronic discovery reference model (EDRM). On the left, in document collection, there has been a necessary increase in remote collections, which are often more cost effective and time efficient, but involve a different set of logical requirements than in-person collections. The model has proven to work, and I think we may see a permanent change in more organisations opting for remote versus in-person collections. In document review, there has been an even more significant shift. Traditionally, it was not uncommon for clients and legal teams to have been stringent in their requirements that document review take place at a secure review facility or on infrastructure under the physical control of the service provider. However, most companies are now more flexible and allowing remote review using secure cloud solutions. As long as security parameters are met and review output remains at high standards, I believe we will see a continual shift toward cloud-based review solutions, even once workplace restrictions return to normal.

FW: In what ways is technology being used to drive change across the dispute resolution landscape? Could you provide any examples?

Chan: Early case assessment has become a focus – teams want to know as early as possible whether they have a case to defend or fight. Technology is getting better at analysing and grouping data in a visual way to provide early insights into the landscape of a case’s data. Another area is new and emerging data sources. We are already seeing the impact of chat data entering projects, and the challenges of collecting, presenting and searching that data in a meaningful way. The ephemeral and transient nature of chat and other emerging sources means that everything a lawyer might want to know about the context behind a single chat message is not all in one place. Compared with an email where the chain and attachments may be all in one place, if there is a smoking gun message in a chat thread, it is very difficult to find and analyse all of the other documents and communications relating to that message. These developments are driving changes in the tools and discovery workflows legal teams use in review.

Worthington: Is technology driving change, or is pressure from clients to be more efficient in dispute resolution driving technology innovation? I think it is both, and I believe that technology is advancing and pushing lawyers to change as required. At the moment, we are seeing this in how technology – like analytics tools and technology-assisted review (TAR) – is being used to reduce huge amounts of data to a set that is manageable for review and production. The next phase on the horizon is even more exciting. We will see technology and artificial intelligence (AI) applied to develop chronologies, draft witness statements and pull together submissions. All of these advancements will free up time for practitioners to focus on strategic work. At a simpler, but important, level is the coming together of different technologies – such as the streamlining of electronic document bundles. Today, they are segmented for review, for counsel, witnesses and the courtroom, but that will shift and make overall dispute resolution processes more efficient going forward.

Taylor: Even though e-discovery technology has become more prevalent, and courts have embraced the use of advanced technologies and analytics, many lawyers and judges have continued to insist on hard copy document productions in addition to electronic productions for use in the courtroom. Coronavirus (COVID-19) has been like a circuit breaker flipped on these processes. There are hardly any hard copies, and everyone has been forced to get more comfortable with relying on electronic documents. People are seeing that electronic formats are wholly sufficient and more convenient than hard copy records. Now that lawyers see it working, it is likely they will be more open to the technology even when courtrooms return to normal proceedings.

Jackson: Technology continues to drive efficiency and provide insight within data populations. Wider use of techniques such as TAR and tools such as email threading and near de-duplication are very much the norm in helping to automate review and reduce large datasets in dispute resolution. I also feel that increasing experience with and understanding of these tools are further driving increased demand for their use as part of dispute resolution. Looking forward to more sophisticated applications, companies will become more open to tools in the space of unstructured data analytics to further automate review and identify underlying patterns across millions of documents. These patterns and trends provide insights that surface important information and improve the overall efficiency of a review.

Semertzides: Technology is helping legal teams focus more of their time and effort developing legal strategy and building the merits of a case rather than being consumed by discovery process and execution. The tools available in the market right now are automating many of the mechanical steps that typically eat up resources and drive overhead. They are making it easier to identify, ingest, analyse and disclose data, which frees up resources to focus on case strategy. In addition to streamlining the overall process, technology is helping case teams surface facts and relevant material earlier in the discovery phase of a dispute. With the traditional approach to e-discovery – applying keywords and reviewing the hits in a linear fashion – relevant documents are more or less identified at random during the review. However, legal teams that leverage tools like continuous active learning to prioritise likelier relevant documents and clustering software to group thematically similar documents, can gain the upper hand in a dispute by identifying key information earlier in the discovery process.

FW: What is your opinion of the impact of technology on dispute resolution? Do you believe it has made processes more flexible and user-friendly, for example?

Semertzides: The processes have certainly become more flexible and user-friendly as the technology has matured and become more accessible in the market. I recall my first discovery matter involving predictive coding over 10 years ago. Back then, the common workflow for that process involved at least three separate platforms. One to stage the documents, another to house the algorithms and a third where the results were uploaded to inform the review. That has been replaced by tools with more sophisticated algorithms where the end-to-end predictive coding process lives in a single platform and can be administered in a much more streamlined fashion.

Chan: Technology has certainly made processes more accessible. Dispute resolution practitioners are now familiar with the paradigms in review platforms, and that is a step in the right direction. Where we are seeing challenges is where software vendors are all competing to introduce the next exciting capability as a way of staying ahead. This has led to an influx of features that are not always useful, can sometimes be a distraction and often clutter a user interface while not really getting at the heart of what lawyers need. Compare this with other technology industries where software vendors are actively trying to reduce the amount of choice and features to make it easy for the end user to perform the most common tasks. Similarly, 10 years ago we would never have said we would be reviewing and compiling emails on mobile phones, but look at how we all work now. E-discovery platforms should focus on offering a complete usable interface for mobile devices.

Worthington: One impact is stemming from the shift to remote work. When employees are not in the office, with the assistance they need close by, or governed by the corporate shield, it becomes easier to make mistakes and not respond appropriately. Employees may be printing sensitive documents at home, and not disposing of them in a secure manner. People may also slip into bad habits like using personal email or apps like WhatsApp to conduct business. These activities may drive an uptick in investigations and litigation and may also make it more difficult to identify and collect data when future cases arise.

Jackson: Not that long ago, the leading e-discovery platforms were still somewhat clunky and confusing to use. But in addition to advancing their analytics capabilities, software providers seem to have also invested in heuristics and usability to improve user experience. Today’s tools are much more streamlined, flexible and user-friendly. This is leading to wider adoption of advanced solutions and more willingness among lawyers to use technology in the dispute resolution landscape.

Taylor: Cloud email has come a long way and allows practitioners to do a lot of review natively, rather than loading everything into a separate platform. This is making overall processes better, and eventually we will see this flexibility across platforms used for court bundles, rather than today’s standard of multiple stages of moving documents between systems and parties.

FW: In contrast, what aspects of dispute resolution, if any, do not lend themselves to technology-driven change?

Chan: I think we regularly run the risk of straying too far away from a good old-fashioned detective approach. Technology provides efficiency and cost savings but understanding the facts of a case is not as straightforward as it once was – especially in linear review, in which reviewers may find an interesting document and tag it as ‘hot’, before moving on. But lawyers need to follow the investigative trail, much in the same way crime drama detectives do with their complicated bulletin boards of photos, evidence, associations and connected facts. We need to find the middle ground between using the benefits of TAR and data analytics, but without losing the holistic view of the story the documents tell. While technology allows us to categorise more documents more quickly than ever, the overall story told by the documents still needs to be understood, and the pendulum is beginning to swing back the other way. So, we are seeing more lawyers and discovery professionals using chronologies and linking together key documents to build a detailed, fact-based picture of what happened in a matter.

Taylor: Litigation is a fundamentally human process. Technology cannot persuade a judge or a tribunal to side with an opinion. There are programmes that will search previous case results, and provide insights around a judge’s most likely response, but selecting the arguments and documents that will have the most powerful effect in a courtroom, and delivering them, is a human skill. Client relationships and service is another area where tech will not replace humans. Companies want an experienced person they can trust to work alongside them throughout the process and advise them on difficult decision points. A machine can generate huge efficiencies for clients, but it cannot provide the guidance, partnership and collaboration companies need.

Semertzides: Although technology has had an immense impact on the dispute resolution process, it will never be able to replace the expertise of the legal team and discovery practitioners in formulating effective case strategy. The technologies available to aid the discovery process are more sophisticated and easier to administer than ever before, but they require careful and thoughtful implementation by an experienced practitioner to ensure they are deployed in a defensible and cost-effective manner. Discovery proceedings are a common target in disputes, and any technology or workflow used during the dispute resolution process needs to be able to stand up to the scrutiny of the opposing party.

Jackson: Many of us in the general legal landscape discuss whether the law is leading technology or if technology is leading the law. I think we are seeing an increasing push from technology against current boundaries and change is starting to happen. Still, certain areas will always require human input. In the initial phases of a case, when data repositories are being scoped and collected, it is important that an experienced e-discovery practitioner is involved to ask the right questions of the right people. This involves interviews with key stakeholders and intelligent judgement to determine the many places where relevant data may be stored. If a matter does not start with the right foundation in the earliest phases, everything downstream can be compromised or discovery costs may unnecessarily increase, so it is critical to involve people who know how to think like investigators and properly scope the data.

Worthington: What differentiates the top lawyers is not necessarily knowledge, but their ability to persuade, to pick up hints in the courtroom and across the negotiating table and move their arguments accordingly. A computer cannot adapt to the emotional elements in the courtroom, negotiate settlements with the other side or support a client during a particularly challenging phase of a case. We will always need experienced people to lead legal proceedings and exercise judgement over the course of a case.

FW: Could you provide an insight into the kinds of risks that come with a greater reliance on technology for dispute resolution? What steps do parties need to take to manage and mitigate these risks?

Worthington: Every year, the new generation of lawyers are more tech savvy than their predecessors. New lawyers are coming into the field familiar with tech, but the new technology platforms, and related challenges, tend to remain a step ahead. Lawyers are busy professionals, and even the most savvy will struggle to stay continually abreast of the rapid advancements in technology. As a result, there are risks when legal practitioners become too overly reliant on technology or apply it without an understanding of how it works. It becomes very difficult to defend the results of an e-discovery exercise if the team cannot explain to the court, in plain terms, how the tools arrived at those results. It is also incumbent on tech providers to make their products much more intuitive and easier to use.

Jackson: The more you rely on technology and the more technology evolves, the more it becomes a black box. If there is a fundamental issue with an upgrade or implementation, problems can go unnoticed, or be detected at a late stage in a dispute. Also, if there is a fundamental misunderstanding or incomplete knowledge of the technology and its application among the legal and technology teams, it is possible to apply it in the wrong way. The end result may be flawed outcomes that compromise a case. Problems in the technology sometimes fall on the software vendor, which is largely out of the legal team’s control. To balance this risk, teams must implement sound quality control steps and be prepared to respond quickly to any notification that there are defects in the system or workflows. Working with technologists who can keep a critical eye on the technology is also integral to establishing quality control and managing risks inherent in the tools.

Chan: Risk arises when the tech tail is wagging the lawyer dog. So, when e-discovery tools are leading legal teams along a linear review – with the focus of finding an accurate pool of disclosable documents – the lawyers lose control over how they follow the trail of evidence. This workflow of coming up with search terms, applying TAR and going through a dataset document by document has become ingrained, and investigative techniques that surface key facts and case strategy may been lost in the process. Technology has also become so pervasive in the legal field that lawyers may innocently overlook the possibilities of using technologies that are not a part of their regular toolset. It is important to remember there are countless options to consider outside of the discovery space, and good technology practitioners ought to be aware of how and when to apply them.

Semertzides: Just as the advent of the global positioning system (GPS) made some of us overly-reliant on electronic navigation, so has the rise of technology in the e-discovery space made some players beholden to specific tools and workflows and inflexible to alternative approaches. Standardised processes are key to an organisation’s ability to manage discovery, however each matter is different and one must be able to assess the particulars of a project and evaluate if an alternate approach is merited. At the very least, one must be able to understand the impacts of their standard approach to the overall delivery of the project. In addition, some of the most powerful and sophisticated tools on the market have become widely accessible, intuitive and easy to use. These same tools present a degree of risk if not deployed in the right context and managed by an experienced practitioner. Even technology as ubiquitous in discovery as de-duplication needs to be carefully applied. Put simply, there is no one-size-fits-all solution. Expertise and strategy remain essential.

Taylor: Without guidance and leadership from someone experienced with the client, the case, the contents of the documents and the platforms being used, technology can introduce significant risk. Technology provides a great deal of input, based on analysis of tens of millions of documents, but you need an expert at the top of that pyramid making common sense decisions about how the case will play out with opposing counsel and in front of a judge.

FW: What challenges typically need to be overcome when integrating new technologies into dispute resolution systems?

Chan: Integration is the key. No solution can do everything, and even those that come close will eventually be unable to solve a new unexpected challenge or data source. Legal teams are going to need a range of tools, and these must all be able to work well together. Given the pace of technology innovation today, walled garden solutions that do not integrate with an ever-evolving toolset are no longer viable options.

Semertzides: Cost and operability used to be the primary barriers in integrating technology into discovery workflows and processes. However, as these tools become more available to the wider market, parties need to turn their attention to implementation and defensibility to ensure the technologies fit into the overall discovery strategy and are deployed effectively. There can be significant downstream cost and efficiency issues if data is not handled appropriately or if the wrong technology is used. Furthermore, practitioners need to be mindful of the narrative in the court when developing discovery strategy and processes. It can be tempting to adopt creative workflows to speed up discovery, but the narrative must be clear and demonstrate a comprehensive and defensible approach. Otherwise, this can lead to scrutiny in the courts and even the potential for costly and risky downstream consequences.

Taylor: New data types are an emerging challenge. Especially with work from home scenarios, where people are increasingly relying on collaboration tools and chat apps to communicate, more and previously uncommon data types are coming into play as disclosable material. It is a completely different kind of data to deal with in collection, review and production. People need to understand that chat messages do not simply disappear from corporate records and may be tapped for evidence in the same way as email and other documents. Lawyers need to understand they may face new obligations to review data residing in Slack or Microsoft Teams, for example, and be prepared for the unique disclosure challenges around that.

Worthington: Technology has been evolving really well, and in a logical way. We have seen a steady progression of taking what is there and adding meaningful functionality to make it increasingly relevant to the legal process. A key challenge that remains is usability. In this field, lawyers need to be able to pick up the tools and work with them without extensive explanation. A distinct gap remains between tech functionality and the ability of lawyers to run with it quickly. If the tools cannot be used simply, lawyers will revert back to pen and paper.

Jackson: It is all about proving that they work and ensuring that the parties involved are on board with their use. A few years ago, Master Matthews in the UK High Court made a landmark allowance for the use of predictive coding in a case. We have and will continue to see more of this, but lawyers should still consider whether new approaches require agreement from the parties or the court. Having a detailed understanding of how the technology operates and documentation that the results are validated will be important in alleviating concerns from judges or the opposing side. Until technology has been widely accepted in a legal context, it will be critical for teams to remain mindful of the legal challenges that can arise when using tech for document review and other processes in dispute resolution.

FW: Going forward, do you expect to see continued, expanded use of technology to promote more efficient, adaptable and cost-effective dispute management? What kinds of innovations do you expect or hope will materialise in the months and years ahead?

Jackson: Technology will continue to improve the process of dispute resolution. Law firms and in-house legal departments are increasingly operating like businesses, with a strong focus on cost efficiency. That will be a huge driver for technology innovation and adoption. Additionally, the variety of digital data is growing rapidly. We are seeing more material in audio and video formats. Currently, the capabilities of audio analytics trail behind text analytics, but provide the potential for enrichment in the form of voice tone and body language, so there is room for innovation on that front. I think we will also see an intersection of cloud use with AI in utilising and sharing learnings from one dispute to another that may involve overlapping documents or subjects. These advancements will improve practitioners’ ability to quickly determine what is or is not useful in a dataset and apply key learnings across their entire portfolio of matters.

Chan: Any technology that can imitate real world workflows will make an impact. There is room in the discovery space for augmented or virtual reality visualisations that allow an investigator to manipulate and explore a complex network of information. Digital text selection is another example of how technology can evolve to imitate real world workflows. People print documents because it is easier to draw a circle and highlight a passage of text than to carefully select a sentence with a cursor on a screen. However, when the latter is done, we give ourselves opportunities to search for our highlighted text. If we can combine the naturality we get from drawing circles on paper, with the benefits of search in a digital interface, we would be able to have our cake and eat it too. I also think technology will improve in terms of combining many different types of data together in a single platform, so legal teams can build a timeline of evidence, drawing from a rich source of information, much like a real world detective would.

Semertzides: As technologies become more accessible, we can expect to see continued use and a faster pace of adoption. The intersection of increasing data volumes and greater awareness of parties around reasonable costs of disclosure exercises will also drive more and more legal teams toward technology as a means to reduce legal spend. Cloud computing will be a big driver of innovation. As more organisations transition their business operations and corporate systems to cloud-based platforms such as Microsoft 365, Google Workspace, Salesforce and others, there is tremendous opportunity to more efficiently conduct discovery on data stored in those areas. Many of these platforms offer mechanisms to connect directly to the data using application programming interfaces (APIs), which allow for greater flexibility in how data is handled and how e-discovery is scoped. This could open opportunities for reviewing data in situ, which will reduce costs and make it easier to conduct e-discovery within the confines of data protection requirements.

Worthington: AI will be the next stage, which will drive a lot of interesting functionality, as well as usability. Technology must become more intuitive for non-technologists. We will also see more features around tech automating the creation of case chronologies and witness statements. We are getting close to meaningful progress on these fronts, and I expect that will be the extent of technological change in the legal realm for the foreseeable future.

Taylor: Automated language translation is one area ripe for much more technological innovation. The translation tools currently available provide a very general sense of what is in a document, but if the document is flagged as potentially relevant to a matter, lawyers fluent in that language need to analyse it at a granular level. It will be very interesting to see if computers can learn to translate and understand the nuances of human language.

Jon Chan takes data, whether unstructured or structured, and helps to identify relationships, extract insights, and builds review workflows to allow legal teams and investigators to uncover the facts quickly. He does this by combining off-the-shelf products, with custom software development and data analytics to produce powerful solutions. He works across the EDRM, applying these techniques to a range of data-driven investigations including litigation and international arbitration, public inquiries, contract due diligence and financial crime investigations. He can be contacted on +44 (0)7549 926 961 or by email: jon.chan@fticonsulting.com.

Alex Semertzides advises clients throughout the lifecycle of complex litigations and investigations, leveraging his expertise in market-leading review platforms and various technical solutions to decrease litigation costs by improving the efficiency and accuracy of the discovery process. He has a wealth of experience incorporating predictive coding, visual analytics and other innovative technical solutions to develop defensible and efficient reviews for law firms and corporate clients, often dealing with high data volumes and complex disclosure requirements. He can be contacted on +44 (0)77 1827 0404 or by email: alex.semertzides@fticonsulting.com.

Tom Jackson has over 10 years of experience in the management and delivery of large scale, complex e-discovery matters. He specialises in the design and development of custom solutions in the areas of e-discovery management, workflow, review and reporting. He has led the development of several customised features within e-discovery tools that include aiding of volume reduction, provision of insight into review efficiency, and client empowerment through bespoke, real-time reporting features within review platforms. He can be contacted on +44 (0)7870 544 382 or by email: tom.jackson@fticonsulting.com.

Damian Taylor is a partner in the disputes and investigations group and sits as co-head of the arbitration group and has overall responsibility for the group’s e-disclosure function. He advises on all contentious matters, drawing on his broad experience across a wide variety of disputes before the High Court, competition appeals tribunal and international arbitration tribunals, as well as advising clients on investigations commenced by regulators. He can be contacted on +44 (0)20 7090 5309 or by email: damian.taylor@slaughterandmay.com.

Robert Worthington is the evidence and operations manager within the disputes and investigations team at Slaughter and May, with two of his main responsibilities being to oversee the e-disclosure and document review functions. He has a keen interest in new technologies, and an even keener interest in those technologies that are readily accessible to and usable by non-tech friendly lawyers. Prior to joining Slaughter and May, he was a litigator and contentious regulatory lawyer both in private practice and in-house and then a legal project manager. He can be contacted on +44 (0)20 7090 3557 or by email: robert.worthington@slaughterandmay.com.

© Financier Worldwide

THE PANELLISTS

Jon Chan

Alex Semertzides

Tom Jackson

FTI Consulting LLP

Damian Taylor

Robert Worthington

Slaughter and May

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