Shifting the Cost-Benefit Paradigm in Litigation

The cost-benefit tango that legal professionals do during early case assessment comes down to one simple go/no-go factor: legal costs.

Thanks to ever-increasing legal costs and case complexities, attorneys are often left thinking, “My client has a better chance of winning ‘Dancing With The Stars’ than they do winning this case.” But here’s the dirty little secret: it’s not because the client’s case doesn’t have merit or it couldn’t stand up in court; it’s because the costs to go to trial are just too risky to entertain.

Ironically, technology is primarily to blame for this issue. Analysts point to incessant information explosion, with estimates that digital content will continue to grow 50% annually. That means more email, more PDFs and quite simply more “stuff” for a legal team to identify, collect, preserve, review, analyze, etc., during the course of litigation.

And while memory might be dirt cheap these days, the per-gigabyte review charges you’re incurring are not. Hence why we’re settling so many cases these days, rather than leveraging technology to make our lives easier and our jobs more effective.

Search and Rescue
For a number of years, search has been treated as an afterthought and seen as a “nice-to-have” hammer in the toolkit. Even in legal circles, attorneys and their staff have been mostly content to use the built-in capabilities of their case management system.

But let’s be clear on one point: if you’re unable to conduct meaningful and immediate filtering of content before loading it into your case management system or sending it off for review, too often you’re going to err on the side of caution and settle out of court.

In some situations, that might absolutely be the correct call. But wouldn’t you want to make that call yourself, and not let technology deficiencies decide it for you? More importantly, if you’re the defendant, shouldn’t you demand that your legal team have better capabilities in place?

To be certain, there is no magic-bullet technology answer to the e-discovery conundrum. But in terms of role players in this process, search is critical and more than up to the task in the following key ways:

1. Legal cost reduction: If the decision to settle or go to trial hinges on how voluminous and complex e-discovery review will be, then clearly you’ll have a different answer if you already have a search tool capable of doing rapid and meaningful filtering of this content, prior to submitting it to expensive review. The fact of the matter is that some technology vendors and some law firms have a distinct competitive advantage because they already have these tools.

2. Sophisticated processing, review and analysis: It’s probably not fair to say that any single stage of the electronic discovery reference model is more important than the other. But the steps of processing, reviewing and analyzing e-discovery content are clearly where a case can fail or succeed, both from a cost perspective and outcome standpoint. Nowhere is search more prevalent and necessary than in these stages.

3. Answers without obstacles: Too often, key stakeholders want on-the-fly answers to straightforward questions. But when the source material is locked up inside a case managementsystem, usually an answer is anything BUT “on the fly.” And what happens if the source material resides in some unknown location outside your primary system? Only search can provide this single point of access to your distributed data and do so without significant ongoing costs.

4. Know-how and knowledge re-use: A law firm’s work product is only as valuable as its ability to access and re-use this content. Whether you have a dedicated know-how repository, document management system, collection of repositories or all of the above, search is the one solution that enables unified access to these key assets.

The Bottom Line
Let’s face it: the bottom line is the “bottom line.” Like most things in life, early case assessment and go/no-go decisions are generally governed by simple economics. Consider that litigation is costing companies upwards of $18,000 per gigabyte of e-discovery content reviewed. But firms with well-defined “litigation preparedness” processes are reducing IT and legal costs by an average of 30%.

There’s no question that search serves an important role here, whether it is embedded as a best-in-class component in an e-discovery system or is sitting at the server level in your corporate infrastructure. You’ll find no shortage of examples of companies that are doing just that today.

• Talk to Aderant about how they’ve innovated at a faster pace by incorporating best-in-class search;
• Hit up EMC to find out how important search and content mining is to its SourceOne platform and its ability to outperform the competition;
• Find out how American Express leverages search to manage 4 million email messages... all day, every day;
• Spend some time with international engineering firm Costain to learn how it uses search to prevent regulation breach; and
• Learn how Astra Zeneca ensures compliance with the Data Protection Act and other regulations.

Perhaps most important as it relates to the part search plays in the legal industry: it is technology that can be implemented in a matter of days and at a fraction of the cost of most e-discovery solutions. Better still, it is well-known to reduce legal costs substantially, thus ensuring your total cost of e-discovery ownership is at a level that supports your ability to remain competitive.

At the end of the day, you can continue to take tango lessons, or you can own the dance studio that sells the lessons. 

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Established in 1988, ISYS Search Software is a global supplier of enterprise search solutions for information access, management and re-use. The company’s award-winning software suite offers a broad range of search, navigation and discovery solutions for enterprise search, mobile search and embedded search applications. ISYS has been deployed by thousands of organizations operating in a variety of industries, including government, legal, law enforcement, financial services, healthcare and recruitment.