Ari Kaplan and Ross Guberman speak with David Cohen, chair of Reed Smith’s Records and E-Discovery Group, member of its Emerging Technologies Group, and developer of the E-Discovery App. Ross Guberman is CEO of LawCatch, which is the developer of BriefCatch, a software platform designed to elevate legal writing.
Ari Kaplan: Tell us about your background and your practice at Reed Smith.
David Cohen: I came out of law school, joined a big firm and immediately went into litigation. My dad was a trial lawyer, so I always wanted to be a lawyer and try cases, and I did that for several years. As time passed, my cases became more document intensive and e-discovery became a bigger and bigger part of litigation, and I started specializing in that.
I was always interested in computers, so even before the era of e-discovery, we started to computerize information about old hard-copy documents. We would get them manually coded and put them on computers, which naturally led me to e-discovery. I started one of the first e-discovery practice groups at a major law firm and then established Reed Smith’s e-discovery practice group, which has now grown to about 80 full-time lawyers and is where I dedicate most of my time.
After practicing for several years, Ross, what inspired you to transition into a technology career and develop BriefCatch?
Ross Guberman: I conducted workshops on legal and judicial writing worldwide for 17 years. Just as legal tech was starting to take off, and it really was back then, mainly e-discovery, many of the people who followed my teachings asked about having some kind of tool or macro that would help them remember all the tips and tricks and apply them, so I took the plunge and created BriefCatch, which I launched in 2018.
You helped develop Reed Smith’s E-Discovery App, launched in 2020, and lead its ongoing development, among other innovation initiatives. Why are more lawyers, like Ross, seeking to create rather than simply use technology tools?
David Cohen: It probably starts as self-interest to make our lives easier. My phone was constantly ringing with people wanting a form of a legal hold notice or a sample protective order, for example. So, we created a hard copy e-discovery manual, which we distributed throughout the firm, but we were constantly updating it and printing inserts. When apps came along, we realized we could update the guide in real-time, so we made it available to our internal colleagues and clients as a value-added service.
We now make the E-Discovery App available as a resource to the whole world, and anyone can download it for free. It is available for iPhone or Android devices, and you can simply search for “e-discovery app.” It contains forms, indexes, a directory of providers and special masters, access to the Federal Rules of Civil Procedure, and similar rules in all 50 states. It also contains international resources.
Ross Guberman: Do you find that firms that have practice-specific apps are creating them in-house or are they outsourcing the coding and UI/UX design?
David Cohen: We work with a company that provides a do-it-yourself platform on which we built our e-discovery app, which saved us a lot of time. We did not need to code anything, so converting our manual into a mobile app took weeks rather than months. We continue to add features, including searchable databases, but the initial development was straightforward.
As a developer of legal technology, how do you ensure your tools evolve with your users’ needs?
Ross Guberman: If you own software today, capturing data on user preferences and behavior is very easy. It is also much easier to update the application regularly. The next step is letting particular clients customize the software and allow them to control the update process. You do not, however, want to reinvent the wheel. I hear of law firms investing hundreds of thousands of dollars in things I know already exist. Over time, it will be increasingly easy to customize different tools as we do here at BriefCatch.
Given the complexity of the litigation you manage, how do you incorporate technology to remain as current as possible despite the rapid nature of change in legal?
David Cohen: It’s not optional, especially if you’re in a field like e-discovery, which is at the forefront of technological change, as Ross noted. There are a lot of e-discovery conferences, and I am fortunate to be invited to speak at a number of them, which allows me to remain current on the latest legal guidance and the newest technology, particularly the generative AI offerings being introduced. We cannot afford to fall behind and want to remain at the forefront of using technology to be efficient, cost-effective, and deliver the best quality for our clients.
Given your work with judges worldwide, how do good writing and well-crafted positions affect the outcomes of bet-the-company matters?
Ross Guberman: Judges during the pandemic started reading briefs and motions on iPads, and that has actually endured, so it has changed how they process these arguments. So more than ever, there’s a real premium on being incisive, concise and controlled on the first page or two because, frankly, a lot of courts are now doing a lot more skimming and also because they are reading briefs on devices, it is much easier for them to go back and forth between the party’s filings and not feel compelled to read things straight through. So, the good part of this is it’s also a great opportunity to stand out from the masses of pretty good but not great writers. If you have the right technology or the skills or both, you can hone your points and make them practically jump off the page or, as it were, jump off the iPad.
You’ve served as a court-appointed e-discovery special master in several cases, including those involving patents, civil rights and criminal matters. Have you seen a change in how lawyers communicate and prepare their pleadings?
David Cohen: Yes. As a special master, I always try to make things as easy and efficient as possible. For example, rather than having parties prepare formal briefs on matters, I let them prepare email briefs. If I want more on something, I let them know. Instead of just issuing decisions, I would have meetings to discuss my initial impressions and to hear their arguments to streamline the process. So, what might have taken months of briefing and reply briefs might only require a week or two, saving time and resulting in better decisions rarely appealed to the court.
I have not yet had anyone use generative AI to prepare their pleadings. Still, lawyers, including those at my firm, are considering ways to use it to accelerate our preparation of briefs and pleadings, not as a replacement for human writers but as a tool to help human writers.
How has BriefCatch evolved to help lawyers navigate this accelerated docket?
Ross Guberman: We are now moving into some exciting territory involving logic, logical gaps, tone, consistency of message, and not just consistency of wording. So, there are many really innovative ways you can use the right kind of technology as a check and even inspiration for your work, even if you’re not striving to use it to replace your work.
Our existing tool gives people who have done the hard work of thinking through their points and going to a first draft resource to instantly and reliably fine-tune their messaging and get their wording just right. It also prompts you to think more carefully about what points you’re trying to make. BriefCatch flags fluffy or ambiguous language. Rather than telling you what you want to say, it gives you six or seven reasonable, viable options and lets you choose. So, all of that can help beleaguered attorneys meet many deadlines, including client and court deadlines, and bring out their best writing.
Do litigators need more technology to support their clients?
David Cohen: Absolutely. Ross just covered the two things you can get from technology: better results and faster results, which means you can get more done. Your clients are paying less money for you, so you gain a competitive advantage.
We’ve seen that in the field of e-discovery, where the volumes of data keep growing, but we are managing to control costs because of technological evolutions. Today, we can review and be ready to produce a million documents at a cost that used to apply to 200,000 documents. Predictive coding, early case assessment, and filtering keep improving, making legal teams more efficient. Technology is one of the few areas where prices do not rise on a per-document basis. Instead, they have fallen, which is especially important because information continues to proliferate.
Ross Guberman: Will we have AI judges, at least for e-discovery disputes?
David Cohen: That day is coming, but I don’t think we will accept them in place of human judges at first, so they will start as judges’ assistants. Maybe AI will devise a draft decision for a judge to consider. Some AI tools provide a draft and include reference citations highlighting the documents on which the writer relies to draw their conclusions. It can speed up the decision-making process and help judges, but we need to see it perform as well as or better than judges for some time before people accept it as a complete substitute for human judgment. That day is probably coming, but it is further away. In particular, we need to be careful when relying on artificial intelligence to ensure that it is not creating bias. It might be less biased than a human judge, but we cannot assume that as a fact without careful monitoring.
What new opportunities can law firms realize with artificial intelligence?
Ross Guberman: One would be to use AI to identify ways a firm is distinctive or its partners have a special gloss on writing or a topic. We are developing firm-specific versions of BriefCatch because the partners at most law firms do not all write in the same style, though there are patterns we can replicate to ensure a uniform voice. We recognize the value of using that institutional knowledge to train new associates. It also helps with morale and retention because new professionals prefer to leverage technology in real-time rather than participate in formal training programs. The right tool can help lawyers simultaneously solve client problems while training lawyers on the job, which is what they want.
David, how do you see law firms benefiting from AI-empowered tools for litigators and practitioners?
David Cohen: We are automating the data extraction and drafting from prior work product, which is promising. You can prompt a generative AI tool to draft a memorandum, which would instantly accomplish half of the work. I am also interested in how AI is incorporated into various e-discovery applications to allow us to ask questions about a million-document dataset without reviewing most of those records and receive accurate responses.
There is tremendous potential to leverage AI to save time and improve results for litigators and all attorneys.
Ari Kaplan regularly interviews leaders in the legal industry and the broader professional services community to share perspectives, highlight transformative change, and introduce new technology at ReinventingProfessionals.com.
Listen to his conversation with David Cohen and Ross Guberman here.
Read more from Ari Kaplan on Attorney at Work here.
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