June 2014 Bar Bulletin
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June 2014 Bar Bulletin

The RPCs and Applying Big Data Trends to Law

By Robert WM Zierman


Society's increasing technological ability to analyze "big data" - defined as data sets that are too large and complex to manipulate or interrogate with [currently] standard methods or tools - will create disruptive systemic pressures in the field of law.

Law and its practitioners will increasingly need to adapt to these rapid changes in an effort to continue providing a relevant means of regulated dispute resolution. This is because every relevant fact and every case ultimately will become scrutinized by "big data" analytical methods.

Below are ideas about how the analysis of "big data" will be deployed in the analysis of law; the trends that will result; and upon which rules of professional conduct these identified trends likely will depend for clarification, alteration, elimination or amplification.

Broad-to-Narrow Focus Trend: RPCs 1.1, 1.5 and 7.4

The ability to analyze and analogize clients' cases to appellate cases will become a perfunctory legal skill. Moreover, it will be a skill that consumers increasingly will devalue because it will be easily accomplished by computers. To the extent not already doing so, firms increasingly will seek to aggregate trial level pleadings, e-discovery and hearing transcripts and feed them to computers to identify similarities and dissimilarities at the trial level, too.

A firm that specializes in a narrow area of law will be able to do this because its universe of records already will be in an electronic form that will allow algorithmic data crawlers ease of search. At least at present, the alternative is to go to the courthouse and appellate courts, and pay enormous amounts of money for copying files before this task may occur. Regardless, resulting firm specialization eventually will become known and this in turn will drive even greater specialization in a firm's chosen legal arena.

Provided the market for that particular legal service is sufficiently robust, the result likely will be a handful of firms in any particular area of the law that are deemed sufficiently competent. Because this activity will occur in many separate legal directions, a consensus and banding together of the overarching interests of these highly focused firms will result in pressure to acknowledge their respective specialties.

Perhaps most considerable will be pressure exerted against fees and their structure. The adoption of "big data" analytical methodologies will increasingly result in a situation where legal production is billed not in increments based on a lawyer's time, but as a flat fee based on the information gathering, distillation and output systems that law firms have created. This will create pressure to clarify how lawyers appropriately generate their fees.

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