Legaltech (generally) and eDiscovery (specifically) marketing often fails because software and services vendors often try to “copy and paste” playbooks that worked in the B2B (business to business) space.

In B2B, revolution can be richly rewarded. The premise of most startup businesses is: the market has an unmet need; if we build the right product and get in front of the right people, we can make a lot of money. Disruption of the status quo is the entire point of the game.

This is an inherently risky endeavor, but wise entrepreneurs don’t take blind risks, they take calculated risks based on their knowledge of the market. They try to figure: How many people have this problem? How much would they pay to solve it? What are the barriers to entry for potential competitor? And these companies lean on outside legal counsel to help them balance the projected financial return with potential legal exposure. Risk mitigation is law firms’ role in the game of entrepreneurship.

Litigators are interested in business evolution, not revolution.

Evolution is iterative. It is a natural progression. New solutions fit into long-standing defensible and ethical frameworks. Corporate memos distributed on paper were sorted into piles and physically bates-stamped; as email replaced paper-based communications, databases like Concordance, Summation, and eventually Relativity allowed litigators to review the content of the digital communications along with context (that is, metadata) like sender, recipient, date, and more. As text messages, Microsoft Teams and other ephemeral messaging became more common, new tools were developed to handle new types of data. The evolutionary approach is to face the challenge and develop the next logical solution.

Revolution is chaos. Crops are burned. Economies crater. Civilians die. Does the greater good triumph? Sometimes. The outcome is highly uncertain but the prospect of massive collateral damage is highly probable.

So how should litigators and corporate legal teams think about generative AI?

The promise of generative AI is very real. I’m skeptical of the claims that AI will end the billable hour, but one day it probably will lead to lower costs, increase access to justice, and allow litigators to focus on substance and strategy instead of mundane tasks like summarization and document review.

Vendors are already aggressively trumpeting their ability to help with transcripts, deposition summaries, drafting, discovery, and more. Progress is inevitable, but the road is bumpy, and cautious experimentation is the right path for now.

Some very real concerns include:

• Privacy: many law firms and legaltech providers were surprised to learn their prompts in Azure OpenAI Services may be retained and reviewed by Microsoft employees.
  
  
• Bias: Google issued a public apology after Gemini, their Generative AI chatbot, created ahistorical and offensive images.
  
  
• Hallucinations: Stanford published a study claiming “legal hallucinations are pervasive and disturbing”.
  
  
• Defensibility: multiple attorneys have been sanctioned for improper use of Generative AI, and many courts have orders forbidding or limiting its use.

Those are some tough hills to climb, but the fact is, these problems can all be addressed.

• Privacy concerns can be mitigated through negotiation. Microsoft and OpenAI are not the only game in town.
  
  
• Responsible software providers like Relativity are eschewing breakneck speed in favor of limited-release phases and developing defensible products that are winning plaudits from AmLaw litigation practice groups.
  
  
• Hallucinations can be reduced (although not eliminated) by citing sources in documents (i.e. explaining why a document was coded responsive or privileged).
  
  
• It’s already important to be aware of wrinkles across jurisdictions, and there silent majority seem to fall into the camp of “don’t the ethical rules govern conduct regardless of software used?”

So where's the line? Our team has taken a characteristically measured approach to these developments. We are experiments with Generative AI for document review using different workflows and different tools. And when we talk with clients about it, it’s not about how this will "disrupt" or "revolutionize" their practice, it's about how we can defensibly and ethically improve their chances of a positive outcome.

We believe in evolution, not revolution.

For more information, download our eBook, "AI in Document Review. Skeptical? We are Too."