Okay, so there’s no way this does not come off as a complete rant. But bear with me; it’s just a question.
Why do we use the term artificial intelligence when referring to tools built on IBM’s Watson or other “cognitive” or machine learning technology? As far as I know, there’s nothing artificial about these tools. I mean, sure, they are artificial in that they are man-made, as opposed to a natural occurrence, but make no mistake, there’s nothing artificial about the math and science. Computing technology at its core involves ones and zeros, right? Well, maybe it’s not quite that simple, but the point is made.
Do you make artificial business decisions?
I’m no rocket scientist, but even to a person of limited legal, business, and/or technical ability it should seem odd to rely on something “artificial” to deliver sound, defensible results and outcomes that need to be, well, something more than artificial. I won’t speak for anyone else, but if I were making important legal or business decisions and the person or persons providing the technology that solves my problem told me the tool to be used was “artificial,” this quite frankly raises red flags for me.
To TAR or not to TAR
Recently, I’ve had several conversations about why the so-called TAR or predictive coding tools have not taken off in ways that many envisioned. TAR came in with a bang. Everyone rushed to check it out, and then . . . well, not much. I’d say the bottom fell out, but the truth is it never really filled the void, did it? Surveys reveal TAR-type products are employed in a very low percentage of cases. It simply has not seen broad adoption.
Well, I have a theory. And a prediction. First, TAR and predictive coding-type products did not take off because to some degree their usefulness in the legal business has been over-stated. This does not mean they do not work. Others can debate the science of the technology. No, what is meant by usefulness is merely the frequency of application. TAR is not for every case. I guess theoretically it could be; but the point is that that is not the way it has been sold. Rather, it has been marketed as the next shiny thing to take the legal world by storm, promising to up-end the way lawyers work, and save millions of dollars and time in document review. And you know what? All of that is true –but only on a handful of cases.
Shiny objects are not sound processes
And this leads to my theory. I’m no marketing genius, but I am a pretty savvy consumer and I know that I consistently look for certain qualities when making purchasing decisions. I’m usually pretty good at looking past the marketing fluff and seeing a product for what it is. But I see a pattern in the legal technology industry. We keep coming up with the next shiny object and everyone, in what stock pickers call a “herd mentality,” migrates towards these objects, only to find out that the excitement is short-lived, that the product was not all that, or worse.
And now for the dangerous part –the prediction. It’s always dangerous to attempt to predict the future. But at this point I feel like the pattern may make it easier. Quite apart from the shiny object theory above, I predict that artificial intelligence in the legal business will underwhelm at best. I make this prediction because I’ve seen in the past –recall ECA, TAR and predictive coding—that smart, strong marketing pushed these tools to the forefront of everyone’s consciousness, but then they fade away. It’s like a new stock IPO –everyone is on-board day one, but when the novelty wears off someone is left holding the bag. Maybe this is why law firms are loathe to be first at things. But once a single high-profile firm weighs in, boy do the rest fall in line.
This is all very cynical, I know, but to paraphrase something Pete Townsend once said: “It’s not that I am more cynical; it’s just that as I get older I have more evidence to support my cynicism.” As a long-time advocate for technology in the legal industry, I really hope that I am wrong about this.
Back to the future (reality)
Putting aside all the shiny new objects and marketing campaigns, what is clear to me overall is the legal business needs change and in lieu of change it needs sound process. Yes, disruption is sometimes good and forges change. But it’s like the definition of insanity – if you keep doing the same things, how can you expect to achieve different results? What is needed in legal technology is a fresh, new attitude. Not one driven by profits, or that is designed to meet investor targets. No, I think it has to be an attitude of complete transparency, guided by principles of solving problems first. Every bit of business sense in my soul tells me that if you do good things, good things will come to you.
And in lieu of that, I always fall back on the notion that you need good processes. No amount of software in the world –no matter how “smart” it may be– is going to help fix a flawed process. Before buying software in an attempt to make things more efficient, make sure you first identify the process that is in need of improvement.