A recently posted article in the Automated Lawyer area of law.com titled The Litigation Arms Race
describes the ever increasing costs of litigation.
The focus is on product liabilities contingency fee work, but the lessons may well apply across a wide range of commercial litigation. The article explains that modern practice requires hiring more and higher priced experts to establish the case. It goes on to explain that “[n]ew technology has also made discovery more costly.” Since 90% of documents are digital and only 30% are ever printed, litigators need tech experts, particularly data forensics experts, to help with e-discovery, especially with identifying “meta data” and dealing with backup tapes.
What the article does not make entirely clear, however, is that forensics expertise is not always required. Nonetheless, the costs of e-discovery can be very high because of the huge volume of digital data. The techniques to screen gigabytes, terabytes, or petabytes of computer files located across multiple computers are not cheap. And that says nothing about the cost of lawyer time to review the materials identified. Even where forensic expertise is not required and even where a law firm does apply appropriate technology and planning, digital discovery and the document review process is expensive. Fortunately, appropriate use of full-text retrieval and semantic analysis software can help control the costs. (See my posts from June 20th and 25th for more on e-discovery issues.)
The remainder of the article explains that “high-tech evidentiary displays” used at trial also add significantly to costs.