The Uncertain Promise of Predictive Coding

Abstract

Increasingly, machine-learning technologies known as “predictive coding” are automating document review in discovery practice. Recent law school graduates may lament the impact on entry-level law hiring, but the litigation community is embracing the new technologies. Proponents contend that by replacing the unreliable and inconsistent discretion of lawyers with the mechanized objectivity of computers, predictive-coding technologies can solve both the practical problems of e-discovery and the deeper-seated problems of excess, abuse, and trust that have long plagued discovery practice.

In this Article, I advise caution in the adoption of predictive-coding technologies. These technologies hold unquestionable potential as a means of coping with unmanageable datasets, but they entail costs as well as benefits. I argue that if lawyers ignore these costs, they will unwittingly abdicate control to computer scientists and vendors, compromising the profession’s jurisdiction and undermining lawyers’ ability to serve clients and the judicial system. I conclude that the profession has an ethical obligation to explore the costs as well as the benefits of predictive coding, and to play a more active role in its design and use.