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Crowell & Moring's Litigation Forecast 2019

Q&A with Heather Kolasinsky, Senior Legal Counsel, Humana

Photo of Heather Kolasinsky

What have you learned from your experience with technology assisted review (TAR)?
TAR is here, and it’s going to stay. We’ve found that it’s a great tool. For those who are looking at TAR, I would tell them to make sure they really do their research into what the tool can do and how you can use it. Like any other tool, it can be really great when people know how to use it correctly—and if they don’t, it can be really bad.

How are other technologies helping Humana formulate litigation strategy? 
We do data analytics on our corpus of cases. Every year, we look at what came in the door, what the time frame was on cases, what they cost—those kinds of things. You have to know what your trends are. For example, maybe a few years ago you were taking four years to wrap up an average case, and now you are doing them in two and a half years—it’s good to track that and understand why, and to keep finding ways to be more consistent and take similar stances across matters.

Much of the industry is looking at contract and knowledge management, and that’s where we are now. In the future, I can see using technology for root cause analysis, pre-litigation—looking at litigation data and trends to figure out the pitfalls for counsel on the front end of litigation, rather than being reactive.

How is technology changing the legal department and the legal profession?
Gone are the days of people not knowing what technology assisted review or predictive coding are. Nowadays, you really have to understand how those things work—at least enough to be able to explain it in a court.

AI and automation are really going to push the practice of law in new ways. We may be the last generation of “traditional” lawyers, rather than lawyers-as-technologists. And AI and automation will make interesting inroads into how privilege is decided and the ethical implications around who is practicing law.

What kind of skills will tomorrow’s lawyers need?
I think we could see a shift in the type of person that is drawn to the legal profession, with more people who are strong in technology going to law school. We’re already seeing that to some extent in the legal operations area. Legal ops is bringing MBAs and people with financial acumen or project management skills into the legal department. In general, I think we’ll see more analysts and people with non-legal educations providing value and helping to right-size work, so your skilled paralegals are not the ones running reports for audit and so forth.  

How did you get started in law?
When I was young, I wanted to be a marine biologist, but, not surprisingly, I found out those jobs are few and far between. But I had always been interested in the law, and I’m one of those people who is fairly skilled at issue spotting and problem solving. So I got my JD and MBA at the same time.

Not long after I started, the Federal Rules of Procedure around e-discovery changed, and luckily I knew the right people in IT and began to get educated about some of the technologies and practices involved. I actually wrote a bunch of IT contracts, which taught me a lot about technology that has been very valuable for me.

Do you use that learning in your current role heading up e-discovery at Humana?
Yes. Technology is really changing the practice of law, and you need get on that bus and be part of the change, or your practice is not going to be tenable. One of things about being a lawyer is that there is always something new to learn, and all this new technology is just another bucket of learning to get into. And there are a lot of ways to do that—articles to read, groups to get involved with. I’ve been involved with the Sedona Conference for five years or so, and now I am on the conference steering committee working group that deals with e-discovery. It’s great being part of a group that is trying to move the law forward.

Index: Litigation Forecast 2019