Litigation has long been a central legal practice pillar and profit center. The term is applied narrowly to describe disputes that invoke the judicial process and broadly to encompass any formal dispute resolution process involving legal rights. The broader definition entails internal and governmental investigations, arbitration, mediation, regulatory, administrative, and other extra-judicial proceedings.
Lawyers have long regarded dispute resolution— like contract drafting and other self-proclaimed “legal” functions— as their birthright. It epitomized the lawyer-centric, artisanal, brute force, approach to disputes and the hubris of the profession’s “lawyers and ‘non-lawyers’” mindset. Litigation is protracted, arcane, opaque, inefficient, costly, and attorney-centric. In the commercial realm, it has served lawyers better than clients and society.
The infographic (right) is a snapshot of the current litigation landscape. It reveals some of the reasons why litigation is anathema to business. Global litigation spend is growing steadily and approaching $1 Trillion dollars per annum; the US accounts for nearly half of the global total; and litigation accounts for 40% of total corporate legal spend. Litigation is protracted; the average case drags on for 3 years. Most cases settle, but nearly half within 30-days of/during trial. The discovery process, notably eDiscovery, is costly, labor intensive, and unfocused. Only .01% of all documents produced during discovery become trial exhibits.
Litigation is an anachronistic process unsuited for business in the digital age. This is changing but not because the legal profession is experiencing an epiphany. The C-Suite is demanding that the legal function operate like other business units and collaborate with them to identify and create value. The legal function’s new role and remit is to proactively defend the company and drive value for the enterprise and its customers. The traditional approach to litigation is not fit-for-purpose in the digital age. Here is a preview of digital litigation, a customer-centric approach to dispute avoidance and early resolution.
Digital Litigation, Like Other Corporate Risks, Is About Avoidance And Early Detection
Who wants litigation? Not business. It endeavors to avoid litigation, not engage in it. When litigation cannot be averted, business wants early-stage, cost-effective resolution based on rapid, relevant document and data collection that underpins informed assessment. Digital litigation replaces the inevitability of litigation and its protracted life-cycle with avoidance and early resolution.
Litigation is one of many corporate risks; there is nothing inherently unique about it except its reactive focus. Other areas of corporate risk concentrate on risk detection and avoidance—proactive focus. Cybersecurity is an example. Chief Information Security Officers (CISO’s), manage cyber risk. They spend the bulk of their time and resources on proactive measures—blocking and detecting risk, not responding to it.
Chief Legal Officers/GC’s, in contrast, commit far more time, resources, and money responding to disputes than detecting and avoiding them. Why don’t GC’s and their teams focus more on proactive, prophylactic dispute avoidance? Short answer: lawyers are trained to avoid mistakes, not to innovate.
Tools, processes, and pent-up customer demand exist to transform the legacy litigation process into a proactive, customer-centric one. Lawyers and the vestiges of their guild are the principal obstacle. Their resistance to change is fueled by the fear of obsolescence, the threat to their economic model, and the conflated view that data, even if it is anonymized, somehow threatens attorney-client confidentiality. The latter is a footnote to the profession’s reluctant acceptance of the different skills, expertise, and perspectives required for the practice of law and the delivery of legal services.
Digital Litigation Cannot Exist In Isolation; It Is Part of A Broader Transformation Process
Digital litigation cannot be viewed—much less achieved—in a vacuum. It is the byproduct of digital transformation, a tectonic, pan-industry shift in the buy-sell dynamic. In the digital world, customers are providers’ North Star, and an end-to end outstanding customer experience is the promised land. For litigation, this means reimagining dispute avoidance and resolution from the customer perspective, not lawyers’.
Technology and data are the backbones of digital transformation and, likewise, digital litigation. Its skeletal structure is artificial intelligence (AI), Big Data, data mining, analytics, superior workflow technology, and digitization of information at scale. Bill Deckelman, GC of DXC Technology and a pioneer in the legal function’s digital journey, explained: “So much of what can go wrong in litigation occurs early on when strategies are set and decisions made without key documents and data. With the advances in digitization of information at scale, Big Data, AI and data analytics, early case assessment and an intelligence-based case strategy can now be achieved.”
Digital litigation has a powerful human element. Cultural and process change, collaboration, agile, diverse workforces, upskilling, and change management that enhances customer experience are just as important as technology. So too is cognitive diversity—multidisciplinary, cross-functional teams with different skillsets, fit-for-purpose experience, and perspectives that collaborate to mitigate risk and solve complex business challenges. All are important success ingredients in the digital journey.
Reverse Engineering Customer Objectives
Digital litigation starts with reverse-engineering from the customer’s desired goals and objectives. That means asking: How can litigation be avoided and when it occurs, how can it be resolved quickly and on an informed basis by accessing material information and predictive data? Tools, talent, processes, capital, and know-how exist to make this a reality.
Digital litigation is premised on litigation avoidance. That is not possible in all cases, but making it a key success metric will reduce litigation volume. Litigation avoidance is advanced by:
· Proactive identification, remediation, and ongoing training of behaviors and practices that produce exposure;
· Deploying AI to create self-help tools;
· Mining and analyzing data to assist in risk identification, mitigation, and outcome prediction;
· Utilizing platforms that provide an integrated, holistic view of the entire litigation portfolio, supply chain, exposure, and other key essential management data and information;
· Quickly uncovering material documents required to gauge exposure and to formulate an early-stage case strategy;
· Using data to make informed decisions that “avoid surprises” and lead to early-stage resolution
Digital litigation focuses on harnessing legal intelligence and data about specific topics and training AI models to detect action or intent before it leads to a dispute. For example, US antitrust laws define what constitutes anti-competitive behavior. AI can be trained to detect qualifying behavior if it is presented with a sufficient range and number of qualifying examples. Once the model is trained, it can be deployed against company-owned information such as email to detect the behavior. That provides legal or compliance functions an opportunity to be proactive and extinguish and/or mitigate risk.
There already exists the opportunity for every major company engaged in litigation and investigations to leverage their own Big Data to build AI models for this purpose. The data flow must go from business units to legal and vice versa. This is an essential element of extracting more value cross-functionally, the end result of which is impactful not only to the enterprise but also to its customers.
Litigators Will Not Be Eliminated, But Their Ranks Will Be Thinned
Technology will not replace lawyers, and digital litigation will not eliminate litigators. It will, however, thin their ranks. Lawyers with differentiated and relevant expertise, skills, and judgment will remain in high demand. Their value and impact will be enhanced by rapid access to material documents and data at an early stage of the dispute. This enables them to accelerate formulation of case strategies based less on gut and more on material documents and predictive data. The result is an earlier, better informed resolution. That is precisely what customers want when litigation cannot be avoided.
The tasks of litigators will be pared down. A partial list includes: document requests and review, research, several discovery support functions, low-value, dilatory motion and document drafting, and other timesheet staples. Many other current litigation functions will be reimagined, significantly reduced, or eliminated. This current will also course through other areas of legal practice. For many lawyers, law will be more a skill than a practice.
Digital litigation will be far less lawyer-centric than it has been. It will have more technologists, data analysts, statisticians, no-code AI, integrated platform solutions, business process and project managers, design architects, allied legal professionals, and paraprofessionals. It will also have more accountability, transparency, resource scrutiny, business oversight, talent management, and multidisciplinary collaboration. There will be fewer licensed attorneys required in digital litigation, although basic legal knowledge will be an important additive to other core skills.
The legacy litigation process will be reverse-engineered from the customer perspective. Its new design will invert the existing lawyer-centric, reactive paradigm to better address customer objectives and provide an improved experience. There will be more avoidance and less proliferation; more focus and less foray; more cognitive diversity and less lawyer-centricity; and more time spent on pursuing business opportunities and less on courthouse step settlements.
Conclusion
Digital litigation is better termed “Dispute Avoidance, Mitigation, and Early Resolution.” It replaces the current litigation paradigm and its protracted, reactive response to disputes with a proactive one focused on avoidance, mitigation, and early resolution. This better serves the interests of customers and frees the legal function to redirect expertise, energy, and budget to creating value, not squandering it.
