Last week I posed a question on Twitter:
“Does a person doing #eDiscovery doc review need a JD? Not asking what market wants. Asking what law / ethics say.”
That led to a lively discussion. No one chimed in to say a JD is required. Some point out that adequate supervision by a licensed lawyer is required. That’s consistent with what litigators have told me over the years.
So why use lawyers? To me, this is a simple empirical question: what training typically produces the most accurate and reliable results. Lawyers may honestly believe a JD produces the better results but I doubt they can point to actual data.
Reply Tweets were great. One pointed out that plaintiffs’ lawyers routinely hire nurses and other professionals to review documents. One suggested a JD is a CYA move.
And another said lawyers mistake a high hourly rate for expertise. Daniel Kahneman, in Thinking, Fast and Slow, calls that attribute substitution: where you can’t readily measure something [output quality], measure something else easier [hourly rate], even if it relates poorly. Perhaps the entire notion of requiring legal training for document review is another example of attribute substitution (measure the training, not the output).
So I leave this question to my readers with three comments and caveats…
I refer here to “JD” because in some document reviews, clients require a law degree but not necessarily a law license. Also, the offshore staff of legal process outsourcing companies typically have (local) legal training.
The advent of computer assisted coding does not affect this question. At least for the foreseeable future, we will need humans to review documents.
Document review is an economic lifeline for many JDs. If we said we want to employ them, I like that answer much better than simply asserting a JD makes for better reviews.
[Updated 19 Mar 2014: A robust LinkedIn conversation of this post is taking place, based on my having written an update pointing to this post. If you do read, note at bottom of comments a small "1" and "2" which allow navigating between two screens of comments. Link opens to page 2.]