A devilish problem

Dominic Lawson’s Sunday Times article dated 5th August 2012, entitled “To sell your soul, Faust, press Return”, suggested that our relationship with the computer has “become the modern equivalent of the Faustian pact” on the basis that computers and the internet have provided humans with such a wealth of information that there is an inevitable feeling that we will have to pay a terrible price for all this knowledge and power.

Christopher Marlowe’s play, Doctor Faustus, about the man who sells his soul to the devil in return for 24 years of knowledge and power features a devilish character called Mephistopheles. He serves Lucifer and after Faustus enters into the pact with the Devil, it is Mephistopheles who provides Faustus with much knowledge and power but also comes to collect his soul when the term of the “contract” with the Devil expires. Dr Faustus was controversial when it first appeared in the late 16th century. The play led to heated theological debate between supporters of the Calvinist view of theology and the anti-Calvinists.

New ideas often cause this problem! Today, I believe the Faustian pact resonates in the field of e-disclosure where we find that modern day computer power, and specifically the tools available in the market which address some of the evils of commercial litigation practice, leads to a fear expressed by some sections of the media and the legal profession about the “price” to be paid for all this technological stuff.

Interestingly there is currently a rash of commentary around this problem. I would like to share a couple of such references with you.

Predictive coding is currently a hot topic in the world I inhabit where lawyers are looking for help and reassurance in dealing with an ever increasing amount of electronic data for disclosure. As is often the case with powerful new ideas, the world is divided between their adherents and those who are completely opposed to them. This is true of predictive coding as in almost no other area at present and it is exciting to see the adherents gaining ground.

Two exponents of the predictive coding art are David Kessler of Fulbright & Jaworski and Howard Sklar of Recommind and their views may be found in Monica Bay’s article, Panel Debunks Coding Myths [Law Technology News, 20 July, 2012].

They seek to debunk seven major myths which have grown up around the technology and it makes for compelling reading.

My reference to Faustus will have reminded you that I have always been interested in historical parallels. Anyone currently watching the BBC series by David Starkey called The Churchills (John Churchill, first Duke of Marlborough whose biography was written by his 20th century descendant, Winston Churchill) will know what I mean.

Chris Dale often uses the same device to illustrate his point and he does so in relation to the Kessler/Sklar discussion Recommind and Fulbright panel debunks predictive coding myths [e-Disclosure Information Project, 3rd August, 2012].

I had never heard of Dr Dionysius Lardner but I have now learned from Chris that the good doctor regularly challenged the work of the great Isambard Kingdom Brunel, whose appearance at the Olympic Opening Ceremony caused certain friends from the US to enquire why Kenneth Branagh was dressed like Abraham Lincoln!!

I interpret Chris’s reference to the ultimately unsuccessful Dr Lardner to mean that the obstruction of new ideas and technology is ultimately doomed to failure unless the doomsayers, as he calls those opposed to the new technology, come up with hard evidence that the new technology does not work. To put it another way, it is all very well shouting from the touchline but until you actually get involved in the game you really have no credibility in the argument, still less any standing to criticise the way the game is being played. I know I am the world’s best cricketer (from my seat in the stand or my chair in front of the TV) but ultimately I have to accept that I do not know all the answers and that those who actually play or who have played the game may know something I do not.

I think Dominic Lawson is saying the same thing. He opens his article by referring to the glitch which almost destroyed brokerage company Knight Capital when the software triggered a series of transactions resulting in catastrophic losses and a steep fall in the company’s share price. However, as he says, “it is perverse to blame computers as if they had a mind of their own.”

We are not anyway near the stage where computers can think for themselves. It is humans who are always at fault. At the turn of this century, lawyers were engaged in instilling fear in their clients that the Millennium Bug would devastate their businesses as computers could not deal with the change from 1999 to 2000. Their efforts were designed to make companies buy expensive legal advice to deal with the impending disaster. What happened? Did the traffic lights fail, bringing whole cities to a standstill? No they did not. The doomsayers were plain wrong. It was and is as simple as that.

The article contains a story about Lawson’s visit to legendary investor Warren Buffett who had warned that computer generated trading harboured “financial weapons of mass destruction.” Buffett told Lawson “he used a computer only to play bridge.” Given his success over many years in investing both his and others’ money, Buffett’s views have to be taken seriously but I think his point is not that computer technology has no place in the modern world but rather that he does not use the technology because he is/was unfamiliar with it. That philosophy underpins his investment strategy of only ever investing in companies he understands. And it has stood him and his investors in good stead.

But, if Mr Buffett learned about technology he might be less wary of it and the same goes for lawyers and technology. As Lawson concludes, quoting a professor of quantum-mechanical engineering at MIT “The only way to know for sure what your computer will do when you press “Enter” or an icon is to do it and see what happens.”

I can hear the howls of protest already! How can we do this with our clients’ data when we have no idea what will happen? Well, the answer is simple. Collect the data, preserve the native files so that you can always go back to the original source and enter the data into your computer, run the software and see what happens. It is not expensive and you may just save huge amounts of time and money for your clients.

The devil is in the detail, of course, and you will need to talk to someone who has experience of operating the software and knowledge of how to create an effective work-flow but that is really no different to instructing any other expert of whatever discipline to give you an expert view on the matter in hand.

In my experience, clients will pay for that, particularly if they can see some benefit in it and that there is some added value.

That must be better than an attitude of lofty disdain, a refusal to participate and learn or even worse, every man for himself and the Devil take the hindmost!