Originally published in 2015, this discussion of Bennett Borden's role at Drinker Biddle & Reath has consistently been among the most-viewed blog posts on The Relativity Blog each year since. Here's another look because Bennett's insights are just as relevant now as they were nearly two years ago.
In May 2015, Bennett Borden was named Drinker Biddle & Reath’s first-ever chief data scientist. He’ll lead the firm’s data analytics practice, taking a new approach to legal services in the face of growing data volumes.
The firm has garnered a lot of attention with the move from within the industry and even mainstream media. We recently sat down with Bennett to get his perspective on the evolution of new leadership roles in e-discovery. He also shared some in-depth insight into why the traditionalist lawyer is quickly going extinct.
Nick: Already a well-respected partner in an Am Law 100 firm, you felt compelled to go back to school to get a master’s degree in business analytics. What does that say about the changing role of the attorney?
Bennett: Though going back to school was a big sacrifice for my family and me, it was also truly transformational. The advancements in data science and how it touches almost every aspect of business today are impressive. There’s no getting around it, and many of these advancements can be applied in the legal setting.
If you look at the practice of law, a lawyer’s fundamental product is information. Understanding the client’s position, how that relates to the law, what risks are involved—all of it comes down to finding the facts. Today, we need to find those facts amid a wealth of electronically stored information. There’s a lot of it out there, and we, as information-age lawyers, need to be very good at tracking down the right ESI quickly.
What does this new practice at Drinker Biddle signal to me if I’m inside counsel? What should I be prepared for in the future?
It’s quite interesting how many areas this affects. Just on litigation, we’ve learned that predictive analytics and tools that get at the facts of a case faster have immense strategic implications. You find out what happened and what that means first, and it makes a difference in the way litigation plays out.
But you can also apply analytics to other areas of law, such as mergers and acquisitions. For example, the same analytics tools we use in e-discovery are immensely helpful while investigating an acquisition’s value and risks during due diligence. Even the target of an acquisition can use it to prepare for a sale, identifying valuable information, getting rid of what’s not valuable, and providing reliable data to demonstrate their value objectively. Generally in the practice of law, the amount of work that goes into something like a merger—finding contracts, identifying parties, digging into historical business information—is traditionally really manual and complex. Bringing analytics into it makes a big difference in cutting costs and time.
Analytics used in this way can describe the past or present. But the really cool thing about analytics is that it can even predict the probability of future events. We’ve developed models that analyze corporate data to predict misconduct. Just as there are patterns in all human conduct, there are patterns in misconduct. Our models leverage those patterns to identify problem situations as they arise, allowing companies to intervene before they create significant problems.
These are just a few examples—there’s not one area of law that can’t be made better by the use of data and analytics. In-house counsel needs to know that legal objectives can be obtained faster and more efficiently with analytics. Strategies have changed and they should be aware of these changes to ensure they’re getting what they need.
Are businesses really going to turn to their external counsel to be their analytics consultants?
There’s incredible value that attorneys and legal service providers can add here. There are data analytics pros out there who can help with the core analysis, but what law firms and service providers bring is beyond the simple question of what data says and how to access it. We can help the company understand the legal and ethical implications of how they are using analytics and what potential consequences—good and bad—they may face by using the data in a certain way. But more than that, we can provide the right legal support to handle those consequences.
Most data scientists don’t have legal training, so while they can help you find what can be done technologically, they don’t always have the legal and business perspective to help identify how those actions are impactful and what they mean to your business legally and ethically.
What future problems will e-discovery software like Relativity need to solve to support your practice and your clients’ needs?
Honestly, the technology is still ahead of people’s understanding of what can be done with it. We’re already using it to work beyond e-discovery on matters such as real estate transactions, bankruptcy, mergers and acquisitions, data remediation, and so on—far beyond its original design.
I think the next step is technology that automatically finds the patterns and can locate what you’re looking for, directly communicating and interacting with your existing repositories. That’s the next big step: not just understanding what’s in the information, but acting on it where it lives.
The other real change is that we’re starting to use data science not just to describe what happened, but to predict what will happen. This is a big focus of what we’re doing now—building early warning systems that are able to detect compliance, misconduct, fraud, harassment, and theft much earlier and do something about it before it escalates.
Still, this does pose very serious privacy and ethics questions. United States law is clear that data on a company’s network belongs to the company, so the company is largely free to monitor it. But these early warning systems analyze a great deal of personal interaction to find the bad actors. This level of monitoring is new, and raises some real privacy and ethics questions—and they deserve plenty of attention. In short, we want to help our clients catch misconduct before it leads to serious consequences, but protect individual privacy. That’s the way this technology is going to advance business agility while protecting the interests of everyone involved—and that’s the direction we want to head.
You’re a master of zingers. Some of the things you’ve said to me in the past include “TAR is more defensible than keyword search” and “e-discovery is solved.” Do you have any zingers to leave our readers with today?
The fact is, lawyers who are not good at getting at information are like the dinosaurs the day before the meteor hit. They’re extinct; they just don’t know it yet. The old ways of practicing law are simply no longer relevant in the information age. Companies are really good at understanding how analytics affect their businesses, and they respond to attorneys who share that awareness and apply it in their own work. If they don’t, they cease to be effective.
Bennett Borden is chief data scientist at Drinker Biddle & Reath, as well as co-chair of the firm’s information governance and e-discovery group and founder of the Information Governance Initiative. With more than 15 years of experience in law, he earned his JD at Georgetown and holds a master’s degree in business analytics from NYU.