Firstly, it is an absolute fact that right across the world the majority of cases settle (even in the USA which is an arena of aggressive litigation). Rightly so, and indeed the very purpose of discovery whereby relevant documents are disclosed to the other side, even if they are against you, is to provide for more cases being settled and less Court time and less cost. Remember also, that here in SA, Rule 41A mandates consideration of methods aimed at settlement rather than trial.

The question raised within the title of this post is one of the most common objections to the use of eDiscovery technology and one that I have heard and fielded more times than I could ever recall. “Why go to the expense of the technology, with processing, hosting, and analytics etc. when we need this case to settle”? they say.

Firstly, I think back to the time before electronic documents existed and as lawyers, when a new matter arrived, we would work with clients to obtain all the documents likely to be relevant or at least to be explored. This would be in the form of files, records, correspondence, possibly archived documents and more. Then we would look to find out more about the case and see what we had. If the client said we just want to settle, would we have stopped looking at the files and simply negotiate a settlement? Of course not, we would have told the client we need to know more about the case to help us find a favourable settlement and we would have reminded the client about the rules of discovery. “

Nothing changes in this approach when there are electronic documents and eDiscovery. We still need to look at the documents to ascertain the strengths and weaknesses of the case. As a lawyer, if you seek a settlement for your client you want to settle from a position of strength rather than weakness and you can only do that if you know what you have. The documents, or data as we prefer to call it, will guide you to that position, and therefore using eDiscovery technology including AI is absolutely crucial.

It is impossible to settle unless you know your case, and we have a mantra which is “Know your data, know your case”