Every December I do a Recent Developments in Law Office Management and Technology program for the Oklahoma Bar Association's two-day Recent Developments CLE. For 2012 the big story in legal technology had to be the rapid changes in e-discovery and predictive coding. Predictive coding means searching documents using algorithms to locate relevant documents rather than a lawyer reading each document. The best predictive coding practices have lawyers intensely involved in the process and use sampling and testing to determine how well the algorithms are working. See the Wall Street Journal's Law blog's post After Court Decisions, Clients Mull Swapping Lawyers for Machines for more detail. (This is also an example of the kind of headline that makes many lawyers think this must be a bad thing.)

Changes in the law generally happen slowly. So it is noteworthy that the first opinion requiring a predictive coding protocol for document review in a case where both sides generally agreed it was required happened early in 2012 and later in the year we saw a order issued by another court telling the parties they had to show case if they didn't want to use predictive coding during discovery in a case. That is rapid change.

Recently an ABA Journal article was published with the title Lawyer for E-Discovery Company Predicts Predictive Coding Will Become an Ethical Obligation. Some attacked the obvious bias of the source in comments to the article and others predicted ethical and malpractice horrors ahead for any lawyer who dared "outsource" their duties to machines or non-lawyers. There's a bit of "protect our turf" bias in those comments as well.

I don't really see predictive coding becoming an ethical requirement only because I see it gaining more acceptance as a business requirement long before ethics rule-making bodies have a chance to consider it.

There are so many emails generated every minute in businesses that there is no way to avoid this. Suppose a lawyer has to review two million emails to decide what is to be produced in discovery or a law firm receives one million emails in response to a discovery request. Do the naysayers really believe that the only ethical and practical way to approach this is to hire teams of lawyers to manually read each email? Predictive coding is simply a tool that lawyers and courts will use to deal with the massive amount of information before them. Judges will learn more about searching and sampling. It will be a change, but a necessary one. And, thankfully, most cases will not involve millions of emails.