Not me!

By | 9th July 2013

We all have our pet hates.

Yours may be completely different from mine, but we all have views about things and people around us. It is part of being human and being capable of rational and, let’s be honest, also irrational thought.

One of my pet hates is the unnecessary and unthinking use of jargon where perfectly sensible and easily intelligible descriptions exist. For example, one of the most persistent offenders in my view is Network Rail whose public announcements use the word “alight” when they mean to get off and the word “inclement” (weather) when they mean poor, bad or wet!! Be honest, who else uses “alight” and “inclement”?

I am sure you are thinking this is a bit rich coming from a lawyer, as lawyers are generally thought to comprise a group particularly prone to the use of jargon, and I would not attempt to dissuade you.

All I would say is that some lawyers are now rather better at explaining things in forms which are readily understood by their clients. They have come to understand that it is the clients who are paying for the advice and that the clients are entitled to understand what they are paying for.

The medical profession, however, has some way to go in this area. Recently, I received a letter from my doctor asking me to make an appointment to have a blood test. The test was (I think) described as HbA1c. The actual formula does not matter, but it was baldly stated with no explanation of what it was or why it was needed. There was no preamble, although the letter followed a previous set of blood tests and no reassurance. In short, nothing helpful at all. Thanks to the wonders of the internet I was able to discover that the blood test to which he referred is designed to test the level of sugar in the blood. Surely he could have said so!

The unthinking use of jargon merely serves to confuse and to blur the issue and is often used deliberately so that the listener really does not understand what is going on, and is not meant to. The jargon user sounds plausible and many people assume that they are being told something important and that the speaker must know what they are talking about; the listener is, in any case, too embarrassed to admit that she does not know what is being said.

It is a joy, therefore, to come across someone who is an expert, but who never talks down to his audience.

Craig Ball writes extensively on e-discovery from his perspective as a computer forensic examiner and an E-discovery Special Master in the US and offers clear explanations of some of the intricacies of the e-discovery world. It is all too easy to get lost in a world where jargon is rife and activity is often described in terms which make even the most intelligent listener wonder if he or she has wandered into a seminar conducted in Venusian. You only have to see the glazed expression crossing a lawyer’s face when a speaker about e-discovery talks about terabytes and petabytes. How much better it would be to describe the quantities of documents referred to in terms the lawyer understands. If you talk about numbers of lever arch files or the distance which the said files would stretch from beginning to end if the electronic data were printed out, you are much more likely to achieve a useful level of “buy-in.”

Craig’s articles are clear and to the point, and what is more, are written in language which even someone who stumbles across his pieces will readily understand.

Some of the concepts involved in the whole area of e-discovery are complicated and, frankly, they tend to put off potential users of the technology now available. This is probably most obvious today in the area of predictive coding, computer assisted review, technology assisted review, machine learning review or whatever you call it. The industry cannot even make up its mind what to call it, let alone explain what it is and why it should be used.

Enter Craig Ball! In his blog post entitled The “Not Me” Factor, he sets out clearly his evolution from predictive coding sceptic to convert. If you want to know and understand what on earth this is all about, I urge you to read this relatively short but entertaining piece.

You will see why Craig thinks that humans are better at the judgment call in relation to responsiveness of documents in a collection….BUT machines are faster and quicker than humans and they don’t screw up (a technical term which means getting it wrong!) like humans. Remember what I said above about irrational thought. Translate that into the uncanny ability for the human mind to wander or be distracted while engaged on a review and you will readily appreciate that the machine is “better” because it is not prone to those human failings.

For a human reviewer to match the performance of a machine is rare, and is only achievable if the human reviews all the documents in the collection rather than the small percentage of documents which need to be reviewed using predictive coding.

So why isn’t everyone using predictive coding? Of course, it is not always appropriate to do so because, for example, the collection of documents may be too small for the cost savings to be apparent or because the documents to be reviewed essentially comprise figures which predictive coding cannot handle. But the main reason Craig cites for not using predictive coding is what he calls “exploitive” pricing.

I may quibble with his use of the word “exploitive” for a variety of reasons, but I understand the thrust of what he is saying. My answer is that this is an area where the human can make a real difference. It is essential for the lawyer to understand what is available out there and to talk to the vendors about the products they offer. You cannot do this when under the pressure of court deadlines or an injunction, so do it now, today, or at worst, tomorrow.

Find out what it is that they offer and, crucially to address Craig’s point about cost, what it is that they charge and how that charge is made up. Some vendors say they offer predictive coding free or at a lesser cost than others. They may well do so, but it is essential that the lawyers discover how all the charges are made up because, at the risk of stating the obvious, there is little to be gained by using a vendor who offers “free” predictive coding when what they charge for other necessary and complementary services is much higher than that charged by the competition.

In other words, understand your market, know your vendor  and talk to them about how they can help put together a proposal which deals with the issues and circumstances of the particular case at a realistic and proportionate price. After all, that is what you would do if you were embarking on a personal project which involved steps or processes which were unfamiliar to you. It is what lawyers do all the time when asked to recommend experts or counse. Why should it be different with predictive coding or any other teechnology in the same space?

When I started out writing this blog almost four years ago, I made it clear that it was intended to be a partly serious but also a partly light hearted look at the world of e-discovery. I make no apology for that. Indeed, judging by the people who read these pieces and are kind enough to tell me that they have done so, this mixture of the serious and the lighthearted makes the blog accessible and, therefore, at least potentially informative. And that was and is the idea.

When writing the blog, I try not to use jargon and I hope thereby to inform as well as occasionally to entertain.

For that reason and as a link to Craig’s piece, I have called this post about the horrors of jargon, “Not me!”

In the context of predictive coding in particular and jargon users in general, I hesitate to claim “not me”, as someone, somewhere is sure to catch me out, but that is definitely my aim!!