A new Disco study suggests that despite all the hoopla over AI, we have a ways to go before it becomes commonly used in litigation and, more particularly, eDiscovery. The paradox is striking: even though Gen AI benefits are well recognized, there remains stubborn reluctance to embrace it.
The study is entitled Legal AI: Driving the Future of the Profession. It was primarily conducted online in the late summer by Disco and Ari Kaplan Advisors. The underlying survey was completed by 112 individuals, about half in-house and half in law firms. Interviews were also conducted. The focus was primarily on the use of AI tools in eDiscovery. Disco is a leading eDiscovery provider.
The Significance
eDiscovery has traditionally served as the proving ground for legal tech adoption, the proverbial canary in the coal mine.
The fact is eDiscovery is driven by time pressures that are often imposed by courts or clients. These pressures force lawyers and legal professionals to think about how to get work done quickly irrespective of billable hours. When the court orders you to produce relevant documents in 30 days requiring you to locate and review millions of data sources, you don’t have time to figure out how to squeeze out the maximum number of billable hours. You’re more concerned about not being embarrassed or worse.
It was these pressures that led to things like technology assisted review that sped up the eDiscovery process and begrudgingly became the norm.
Watershed Moment?
Disco describes eDiscovery as being at a watershed moment with AI. Indeed, there are certainly some suggestions in the Disco data that a corner may about to be turned when it comes to the use of AI. That would make logical sense since the efficiencies and time savings that AI tools could bring are significant.
But some of the data suggests that while AI may indeed revolutionize litigation, things are not yet changing all that much. In fact, Disco itself concludes in its report based on the survey, “Few — if any — have unlocked its promise at scale.”
Some Data Points
For example, 42% of those in law firms reported no external pressure to use AI solutions. This is consistent with the findings of an ACC study, and one done by Thompson Hines, both of which I previously discussed. Moreover, 36% of in-house attorneys surveyed say they’re not facing pressure to use AI tools from management.
Some more key statistics: only 35% of those surveyed report having incorporated GenAI in routine legal processes to any extent. That’s not terribly surprising, since 56% of in-house counsel say they don’t yet see GenAI as a tool for controlling litigation costs.
The Paradox
This reluctance persists even though 70% recognized a top benefit of AI was an increase in efficiency. (Thirty-four percent identified costs savings which amounts to the same thing). Fifty-eight percent mentioned better analysis and insights and 40% reported faster evidence gathering. Similar benefits like the ability to quickly surface key evidence, spotting patterns and themes from the data, and the ability to assess case merit earlier have been noted by leading commentators like Doug Austin.
It’s a paradox: while GenAI can make things better, it’s not enthusiastically embraced. Why?
Why Indeed?
The reasons given for not using AI are a little troubling. Despite evolving tools that better ensure privacy and security, 70% of law firm and 68% in-house respondents said privacy and security are still the biggest obstacles. In addition, consistent with the other surveys mentioned above, both in-house and outside lawyers are concerned about demonstrating ROI.
But the main reason is that legal professionals are, in my opinion, turning a blind eye to the benefits and stubbornly holding on to previous ways of doing things. Fifty-two percent of those in law firms, for example, said they are only using AI to differentiate their firm as an “innovator.” One lawyer put it this way, “Cost is not yet a factor; we are less concerned with profit margin and more on gaining market share.” Another said, “Reduced costs are not a reality yet.” In other words, law firms are not using AI substantively or recognizing the benefits.
Several labeled the benefits of GenAI as “pie-in-the sky.” Some cling to the belief that the failure rate with AI in document review is higher than with humans. Some said even though blown away by results, they would still require a substantial amount of human oversight. This even though 79% of those surveyed rated GenAI tools with a three or higher on a five-point scale when it came to accuracy and 53% said it was a four or five.
Other Issues
There are a host of other issues cited in the report as rationalizations for avoiding change (my comments to the cited issues appear in parenthesis):
- Generational Differences: There is a belief that more experienced lawyers are more reluctant to use AI tools than younger lawyers. (The notion seems to be its use is limited to those who, due to their limited experience, can’t be trusted, and that more experienced lawyers won’t be able to master it.)
- Limited Time: It takes time — non-billable time — to learn how to use GenAI tools (aka let’s not invest the time to do things better).
- Loss of Control: We will lose control of our data if we put it on an AI platform. (We heard that before about the cloud. We know how that turned out.)
- Reduced Billable Hours: “speed will reduce revenue.“ (Of course.)
- AI Talent Deficiency: There is not enough AI talent available to enable us to understand how to use and implement GenAI. (So many commentators, legal professionals, vendors, and consultants are talking nonstop about AI, it’s hard to conclude the information and talent isn’t there.)
- Misaligned Functionality Expectations: GenAI can do some things, but it just can’t solve most problems yet or fully answer questions. (Perfect should not be an enemy of the good, particularly when the good is recognized.)
- Accuracy Concerns: Accuracy is repeatedly stressed as a reason to encourage continued human oversight. (Accuracy is a concern but that doesn’t mean throwing the baby out with the bath water.)
A Silver Lining
But there may be a silver lining when it comes to AI and eDiscovery: if history is any guide, things may eventually change.
As I said at the outset, eDiscovery is the canary in the coal mine when it comes to technology adoption by the legal profession. All too often, the pressure to get eDiscovery work done quickly trumps the desire to resist change. We have seen efficiency tools like technology assisted review and continuous machine learning gradually become well accepted and standard, particularly as data and data sources exploded exponentially. It did take years to overcome the notion that humans had to do everything, but we did get there.
The New Reality
So, it’s tempting to conclude that despite all its benefits, many of which are already recognized, the adoption of GenAI will take the same slow and torturous course. But there is another reality revealed by the survey: 96% say eDiscovery workloads are increasing or staying the same. And there is a recognition that a variety of new data sources including prompts and outputs must be dealt with. Fifty-two percent of those surveyed say these new sources will make the litigation cycle longer, inevitably increasing costs.
These new data sources and continued time pressures may force legal professionals to adopt GenAI tools out of necessity just to keep up and satisfy the demands of courts, regulators, and clients — just as they gradually did with the adoption of TAR, only quicker.
eDiscovery Is Cool
That’s why watching what happens in eDiscovery is important: legal will be forced, even though kicking and dragging their feet, to adopt GenAI. Time constraints and risk aversion may force the adoption many are currently avoiding.
Or as one respondent put it, perhaps a bit reluctantly, “AI has made eDiscovery cool.”
Stephen Embry is a lawyer, speaker, blogger, and writer. He publishes TechLaw Crossroads, a blog devoted to the examination of the tension between technology, the law, and the practice of law.
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