04 September 2017
An abridged version of this article was originally published online by Lawyers Weekly on 29 August 2017.
In recent times, the way lawyers gather and analyse evidence for use in matters and cases has changed significantly. Advances in legal technologies – such as the increasing use of e-discovery and electronic evidence and data analysis – have resulted in a ‘new normal’ that law firms are only just beginning to come to grips with.
Unlike just a few short years ago, the breadth and depth of digital data available for analysis has meant that e-discovery is now the only discovery happening in most cases, and almost all documentary evidence presented in courts is electronic.
As a result, it is becoming increasingly necessary for law firms to not only become familiar with data science, but be willing to invest heavily in it. Similarly, within firms, individual lawyers are finding that they need to integrate and refine their data technology skills to ensure they stay relevant and competitive.
The rewards of this ‘new normal’ for clients, however are clear…
By way of an example, a suitably technologically-equipped lawyer could today:
prove the occurrence of a meeting and identify those present, using metadata and without ever seeing or speaking to a human witness; and
deduce the likely outcomes of that meeting by analysing the electronic communications (including SMS, chats, messaging apps and emails) of the participants.
Later in that matter, the lawyer could present the court with a precise mathematical calculation demonstrating the effectiveness of their evidence gathering and discovery efforts, and whether further orders are likely to result in useable evidence for any party.
Capturing and using metadata are not new concepts, even to the typically conservative legal profession, but there is still a gap between the acceptance of these concepts and actually putting them into practice – either at small scale or big data levels.
Data management to streamline business processes is already very common, with firms of all sizes recognising its importance in staying competitive. What is less common though, is the application of data science to improve the quality of legal work itself.
In a typical business environment, evidence of staff and information movements exist well beyond where lawyers traditionally look. With the assistance of forensic data technology, emails and the sometimes murky recollection of witnesses can now be supplemented by, among other sources:
GPS tracking data;
swipe card records;
social media data; and
data in the memory banks of innocuous ‘smart’ devices like TVs, fridges and cars. Even the humble office printer could be keeping a record of who used it, and what they copied!
With the right tools and expertise, collecting this information is relatively straightforward. Working closely with a savvy lawyer, such data can quickly be presented in a digestible form for legal work, or graphically for use in meetings and negotiations. The data analyst’s role is to mine the exponentially growing pool of available data, while the lawyer needs to know exactly what they want, where they could get it from, and ultimately how it could be used to help their case.
This combination of a sophisticated forensic approach to client data and technologically-savvy lawyers is undoubtedly a winning proposition for clients. Because electronic evidence and data now plays a central role in decision making for clients, the ability to both capture and analyse that evidence will become a key differentiator for firms.
At Corrs, we have recognised this fact, and, continuing our pioneering role in the Australian legal landscape, have taken the step of creating a full service forensic technology team within our legal technology group. Led by Phil Magness, and supported by Corrs’ national team of technical managers and analysts, Corrs Forensic Technology provides clients with a complete solution to all their forensic technology needs, spanning areas such as workplace investigations, fraud and corporate crime, IP theft, compliance, litigation and regulatory investigations and more.
We are now at the stage where most major matters and cases involve multiple terabytes of data. This is, put bluntly, impossible to manually review (roughly 1TB = 100 million pages of emails or 17 million pages of PowerPoint slides).
The only way to conduct a thorough review of such a large amount of data – and make sense of it – is with a solid understanding of electronic evidence and data analytics. For example, predictive coding in discovery (which has recently been specifically incorporated into the practice notes of the Federal Court and Victorian Supreme Court) requires lawyers to use data science to assess its performance in a matter.
While in discovery at least, there is no expectation that lawyers themselves need to master the complex mathematics involved with data forensics, competitive firms have invested in the technology and expertise required to help their lawyers understand its practical outcomes. Such an approach undoubtedly delivers better outcomes for clients.
In data forensics, electronic discovery and beyond, it is more important than ever before that law firms understand how the principles of data factor into their legal objectives.
Clients will increasingly seek out law firms that take a multidisciplinary approach to their evidence, for the simple reason that it will deliver better results. They should have access to forensic technologists, data specialists and the necessary tools to empower them. Their lawyers should be able to quickly identify the triggers for engagement, and firms should, ultimately, fully integrate the work of their data specialists into legal services for clients.
Modern companies are already innovating their business models to take account of the rise of big data, to remain competitive and win in their fields of commerce. Their legal representatives need to ensure they are on that journey with them.
If you would like further information about Corrs Forensic Technology, our national, full-service forensic technology offering, please download the brochure here. Alternatively, you can contact Phil Magness or Michael do Rozario directly.
The content of this publication is for reference purposes only. It is current at the date of publication. This content does not constitute legal advice and should not be relied upon as such. Legal advice about your specific circumstances should always be obtained before taking any action based on this publication.