Making technology a member of your team

Even in a well-resourced legal team, capacity can be an issue. A significant amount of time can be tied up in tasks that are time consuming and inefficient, stretching the available resources to the limit and away from issues for which their input could be far better used.

I sit in a world of investigations and expert evidence in disputes, both consulting and independent, and work frequently with in-house legal teams. A common challenge is the plethora of information sources and the volume of data therein. I now consider technology and its various uses as an integral tool in my work and I see how it can benefit those I work alongside and not just those involved in disputes.

The legal profession is familiar with using technology as a tool for extraction and storage of information from obvious sources but it can do so much more than this and from a far greater range of internal and external data sources than ever. It can complement and make best use of your team’s skills but also greatly enhance the quality and depth of financial and non-financial analysis relevant to your legal decisions. It works both as a reactive tool and, importantly, as a proactive tool to identify and head off emerging issues. 

The thought of technology can be off-putting. It is easy to think of it as too complicated or, for want of a better expression, “too technical”. It can be difficult to appreciate the value of what you may not fully understand. 

It is also understandable to think of the costs and the additional demands on stretched budgets or closely managed cost centres. Worse still, with all of the talk of Artificial Intelligence replacing the legal profession, it is even more natural to be concerned that using and promoting it will ultimately contribute to putting yourself out of a job.

This article illustrates the ways in which technology can make your life easier and ultimately more efficient in terms of managing time and costs. It will also highlight how the technology referred to will always require human interaction, analysis and judgement, and will complement legal and analytical minds, not replace them.

First of all, it is useful to explain what I mean by technology. In this article, I am not only talking about technology as a tool to assist you with accessing and managing data but also as an additional resource - using technology to understand technology. How?

There are three main areas where technology can greatly assist, enhance and evolve your working:

• Extraction, storage and review of data from data sources – but think outside of just servers, emails, phones and laptops to other places where your data is housed in and outside of the organisation;
• Analysis of structured data, that is, ordered information in spreadsheets and tables; and
• Analysis of unstructured data – the most unfamiliar of the data concepts but includes the type of information found in emails, browsers and social media posts.

To start with the most familiar, data extraction and storage from storage devices and servers. This is the most widely understood and utilised, since few corporate matters would not involve data from electronic sources. There are times when the size of that data means that electronic discovery platforms are vital to storing the information for further analysis. Use of electronic review platforms can de-duplicate and make data text-searchable to enhance efficiency in the review process.

Once loaded into review platforms, it is easy to then categorise documents together by type or by issue.  The development of key words enables large volumes of documents to be reviewed and relevant documents identified more efficiently. It can help you quickly identify those “smoking guns”. Using the review platform to prepare hyperlinked reports to quickly display relevant documents is particularly useful in submissions in relation to regulatory compliance, incident investigation and response.

Increasingly review platforms can not only identify key words but can also be used to run powerful analytics of words, timelines and even sentiment.

Documents can be filtered using interactive timeline views. Using this view can identify spikes or lulls in activity during periods of time (months, days or even minutes) and can help a reviewer investigate the patterns identified or hone in on areas of increased activity as the first line of enquiry.

Other analytical tools available to explore include:

• Clustering – grouping together conceptually-like documents together into an intuitive tree of clusters and sub-clusters that can be readily identified and reviewed.  This can even be used to conduct sentiment analysis.  Imagine being able to proactively and reactively look at communications content and see how employees are feeling or what is happening in your key customer / supplier relationships? 
• Near-duplicate identification – identifying documents that are similar (such as revised or edited documents) and automatically highlighting what is different;
• Email threading – identifying conversations threads and grouping like-emails together;
• Categorisation – using small sets of “sample” documents to create categories, then sorting the entire collection into categories (and leaving irrelevant documents as uncategorised); and
• Concept searches - enables searching with long phrases and even entire documents to locate conceptually-related documents.

All of these functions are designed to make review processes more efficient and enhance the review process. They have been developed because the volume of data created every day is so great and precludes human review of every document in a feasible timeframe. However, it will not remove the need for review and interpretation of the results. People will always be needed to do something sensible with the results.

Legal teams are generally well versed in what electronic review platforms can do in the extraction and storage space from traditional sources. However an entity will have much more useful and relevant data than it thinks it does and that is capable of analysis. It is good to keep thinking outside of the box in terms of data sources such as finance and payroll systems, CRM and point of sale databases. Technology, via data analytics, is a huge help to extract and review the structured data within the large data sets housed in these sources. 

By “structured data”, I mean numbers, spreadsheets, statistics and databases. The analysis of this information is useful for any experts that might be engaged in the disputes, external parties to a sale process or for internal stakeholders working with your data.

Powerful analytics can take large amounts of data and house this information to enable you to extract what you need from it. Of most relevance to lawyers, the data can be cut different ways, such as by the basis of different legal arguments, scenarios or damages assessments. Data analysis can pick out key information and illustrate trends in the data to facilitate review or support legal arguments in claims for loss or support propositions in a sale process.

There does not even need to be a fully-fledged issue on foot. Sometimes the analysis is useful to determine the credibility of claims or areas of concern for or against the business. Of course, without the expertise in house, this will involve the engaging of external capability but in the context of avoiding additional costs down the road and a greater understanding of the issues, the use of analytics tools can lead to long term efficiencies in managing claims, disputes or sale processes.

It is hard to appreciate how data analysis can assist without some examples that help put it into context. Below are some of the ways in which data can be, and has been, used to assist legal teams:

• Reviewing the pattern of sales to assess how volumes and price were impacted as a result of an injunction period;
• Assessing how costs behaved in a certain period after an alleged event;
• Reconstructing data from an external party to a dispute to reconcile to the costs alleged as incurred;
• Analysing data to establish how cost levels behaved over time in comparison to known events and in the context of a dispute in relation to the management of cost overruns;
• Preparing for a sale process by isolating or presenting key information for the data room; and
• Interrogating information presented for review in a data room that might otherwise appear too cumbersome for review.

It is not only figures that can be reviewed by analytics tools. Analytics have been developed to review unstructured data, being the content of emails or social media posts. Most obviously, this lends itself to an investigation-type analysis of who said what, when and to whom. 

In a world where reputation is everything and media updates are constant, what is your social media presence telling people? If not employees, but anonymous comments, when are they posting and can that be linked to a specific event or the source of a leak?

All of the above are tools can assist you as a legal team, to enhance your work and the value you can provide to your business. The technology discussed here does not replace human interrogation or thought but helps to enable a more efficient review process and enhance the analysis possible. While there is a cost to engage external providers, ultimately, the efficiencies in review and the reach and quality of analysis possible can reduce overall costs and return value to the business that makes it more than worth it.
 

Janine Thompson is a Partner of McGrathNicol Forensic and specialises in dispute advisory and forensic investigations.